Cook v State of Queensland (Queensland Police Service) & Anor [2018] QCAT 216

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cook v State of Queensland (Queensland Police Service) & Anor [2018] QCAT 216 PARTIES: JOHN ROBERT COOK (applicant) v STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE) and ANDREW SELF (respondent) APPLICATION NO/S: ADL057-17 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 9 July 2018 HEARING DATE: 30 May 2018 HEARD AT: Bundaberg DECISION OF: Member Traves ORDERS: 1. The application is dismissed. 2. The applicant must pay the respondents’ costs of $1, 100 within 21 days of the date of this Order. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – whether victimisation – whether discrimination on basis of impairment by treating the person unfavourably in connection with the supply of services – whether police investigation is the supply of services – whether direct discrimination – whether applicant treated less favourably by police in the conduct of investigation – where applicant did not attend hearing or previous Directions Hearing – where Notice of Hearing sent to address for service filed by the applicant – where Tribunal may hear and decide the matter in absence of applicant Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 46, s 101, s 124, s 125, s 129, s 130, s 204, s 209, Schedule Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93 Bell v iiNET Limited [2017] QCAT 114 Lyons v The State of Queensland (2016) 90 ALJR 1107 Woodforth v State of Queensland [2017] QCA 100 -- 1 of 10 -- 2 APPEARANCES & REPRESENTATION: Applicant: No appearance Respondent: J Broadbent, Senior Legal Officer, Queensland Police Service Legal Unit REASONS FOR DECISION [1] This matter proceeded to a Hearing on 30 May 2018 at Bundaberg. The applicant did not attend. The respondent made a request on 29 May 2018 for the Tribunal to decide the matter on the papers as it had received no response from the applicant for a number of months either by email or by telephone and the applicant had failed to attend the Directions Hearing on 7 March 2018. [2] The Tribunal refused the request to determine the matter on the papers. Applicant’s non-attendance at the Hearing [3] Section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides: (1) This section applies if— (a) a person has not attended a hearing and the tribunal is satisfied the person has been given notice of the hearing under section 92; or (b) the tribunal is satisfied a person can not be found after reasonable inquiries have been made. (2) The tribunal may hear and decide the matter in the person’s absence. (3) This section applies even if the absent person is a party to the proceeding. [4] Section 92 provides that notice, as stated in the rules, of the time and place for the hearing of a proceeding must be given to each party to the proceeding. [5] The principal registrar gave notice of the time and place of the hearing in this matter to the applicant at his registered address for service. Mr Cook did not attend the hearing. The Tribunal is satisfied Mr Cook was given notice of the hearing pursuant to s 92 of the QCAT Act. [6] The Tribunal therefore proceeded to hear and decide the matter in Mr Cook’s absence. Background to the complaint [7] Mr Cook has been diagnosed with Bipolar disorder. He suspected fraudulent activity was occurring with respect to his bank accounts and with certain store accounts. The police conducted an investigation in Gladstone and later in Bundaberg and concluded that the relevant transactions had most likely been made by Mr Cook’s wife, Monique. The police on both occasions claimed to have closed the investigations due to a lack of evidence that any fraudulent activity had occurred. -- 2 of 10 -- 3 [8] Mr Cook does not accept this outcome of the investigations and claimed that the police did not properly investigate his case because he had Bipolar disorder. [9] Mr Cook made a complaint to the Anti-Discrimination Commission on 23 January 2017 which was referred to the Tribunal on 6 June 2017.1 The Commission treated the complaint as indicating:  Impairment discrimination in the area of goods and services and State laws and programs – section 7(h), 10, 46 and 101  Unlawful requests for information – section 124; and  Victimisation – section 130.2 [10] The Tribunal is not bound by the Commission’s characterisation of the complaint. It is important to state at the outset that the Tribunal is not concerned with determining whether and, if so, by whom fraudulent activity has occurred. The Tribunal must instead focus on the conduct of the police investigation itself and whether Mr Cook was treated unfavourably during that investigation because he had Bipolar disorder. [11] The complaint also alleges that unlawful requests for information were made in contravention of s 124 of the AD Act and that victimisation occurred. I will deal with each of those issues at the outset. Unlawful requests for information [12] Having listened to all the recordings provided to the Tribunal of taped interviews relating to the investigation, the Tribunal is satisfied there is no basis for a contravention of s 124. Section 124(1) prohibits a person from asking another to supply information on which unlawful discrimination might be based. This does not apply however to a request that is necessary to comply with, or is specifically authorised by, relevantly, an existing provision of another Act. [13] Under s 124(3) it is a defence to a proceeding for a contravention of s 124(1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination. [14] While being questioned by Detective Self, Monique volunteered that Mr Cook had Bipolar disorder and that he may have been responsible for the fraudulent transactions. Following this disclosure by Monique, Detective Self asked Mr Cook questions about his mental health condition and also requested information from Mr Cook’s treating doctor. The information request made of Mr Cook’s treating psychiatrist was, in my view, relevant to the investigation and incidental to the statutorily prescribed function of police to detect offenders and bring them to justice.3 Whether that is enough to mean the information request was ‘specifically’ authorised by another Act as required by s 124(2)(a) is unclear. In any event, even if s 124(1) has prima facie been breached, the respondent, in my view, has proved, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination within the meaning of s 124(3). That purpose being the conduct of an investigation into suspected fraudulent activity in respect of Mr Cook’s bank accounts. The information was, in my view, ‘reasonably required’ because the purpose of obtaining 1 Anti-Discrimination Act 1991 (Qld) (‘AD Act’), s 166(1)(b). 2 Referral of a matter (non-disciplinary), 6 June 2017 3 Police Service Administration Act 1990, section 2.3 (Functions of service). -- 3 of 10 -- 4 it was to assist in assessing the credibility of that evidence. There was a sensible prospect, in my view, that a person with Bipolar disorder may have an altered perception of reality at times. It was reasonable, in my view, for the investigating officer to seek to ascertain whether, and if so, to what extent, a complainant who had Bipolar disorder had any associated attributes that may impact on the credibility of his or her evidence. Victimisation [15] Section 129 of the AD Act provides that a person must not victimise another person. “Victimisation” is defined in s 130. The penalty for an individual is 45 penalty units or imprisonment for 3 months and for a corporation, 170 penalty units. Sections 209 and 210 set out what orders the Tribunal may make. Not surprisingly, these do not include the imposition of a penalty. [16] The victimisation provisions are in Part 4 of Chapter 5 of the Act, headed “Associated highly objectionable conduct (complaint and penalty). The first provision in the Part, s 125, provides: 125 Act’s freedom from associated highly objectionable conduct purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by prohibiting and penalising certain highly objectionable conduct that is inconsistent with the other purposes of the Act. (2) This purpose is to be achieved by – (a) prohibiting certain conduct; and (b) allowing a complaint under chapter 7 to be made against a person who has engaged in that conduct; and (c) making that conduct an offence; and (d) using the agencies and procedures established under chapter 7 and the relevant tribunal Act to deal with the complaint or offence. [17] Accordingly, it is clear from s 125, that although a contravention of s 129 is an offence, a person can also make a complaint that the section has been contravened, which is the case here. [18] It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act.4 If the tribunal decides that the respondent contravened the Act, the tribunal may make one or more of the orders in s 209, which relevantly, include an order requiring the respondent to pay to the complainant an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention.5 4 AD Act, s 204. 5 AD Act, s 209(1)(b). -- 4 of 10 -- 5 [19] I turn to consider whether the complainant has proved, on the balance of probabilities, that he was victimised by the respondent. [20] Victimisation happens, relevantly, if a person does an act to the detriment of another person (to the complainant) because the complainant alleged or intends to allege that a person committed an act that would amount to a contravention of the Act.6 [21] Mr Cook claimed that the investigation by the police was closed because Mr Cook had lodged a complaint against them with the Commission.7 The police claim the investigation was closed due to a lack of evidence that any fraudulent transactions had occurred. In particular, after the discovery of evidence that indicated Mr Cook’s wife, Monique, had been responsible for two transactions identified by Mr Cook as his best evidence of fraud. [22] I find, on balance, that the reason the investigation was ultimately closed was because the investigation showed Monique Cook to be responsible for transactions alleged to be fraudulent and due to a lack of evidence generally that any other fraud had occurred. This was the reason provided by Detective Self, of the Queensland Police Service to Mr Cook by email dated 18 January 2018. Accordingly, I find this did not constitute a contravention of s 129. [23] Mr Cook also refers to the impounding of his motor vehicle on 7 March 2017. I have assumed that Mr Cook is claiming that this also constitutes an act of victimisation by the respondent. Mr Cook’s motor vehicle was impounded on 7 March 2017 as a result of the driver, Monique Cook, having committed the Type 2 offence of unlicenced driving.8 Ms Cook had a history of driving while unlicensed, having been convicted of unlicensed driving on 3 previous occasions within the past 2 years. This was, therefore, Ms Cook’s fourth offence within the prescribed period and the vehicle was, as a consequence, impounded until court proceedings were finalised.9 Ms Cook was convicted of the relevant offence in the Caloundra Magistrates Court on 5 May 2017 and the motor vehicle was forfeited to the State under the provisions of s 74F of the Police Powers and Responsibilities Act 2002 (Qld). Section 74F(2) provides that a vehicle impounded under s 74E becomes the property of the State upon the fourth conviction. [24] I find that Mr Cook’s motor vehicle was impounded for reasons unrelated to the making of the complaint by Mr Cook. Accordingly, I find this did not constitute a contravention of s 129. [25] I turn to consider whether there was unlawful discrimination in the conduct of the police investigation which began in Gladstone and was resumed in Bundaberg. Unlawful discrimination 6 AD Act, s 130(1)(a)(ii). 7 Email from John Cook to Andrew Self dated 16 January 2017. 8 Transport Operations (Road Use Management) Act 1995 (Qld), s 78. 9 Police Powers and Responsibilities Act 2002 (Qld), s 74E. -- 5 of 10 -- 6 [26] The AD Act protects people from unfair discrimination in certain areas of activity by prohibiting direct or indirect discrimination on a ground set out in s 7 in an area of activity set out in Part 4. [27] Here the ground was Bipolar disorder which comes with the ground of ‘impairment’ in s 7(h). ‘Impairment’ is defined to include a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.10 [28] Section 8 provides: Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. [29] Direct discrimination is defined in s 10 as follows: (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. [30] In Woodforth v State of Queensland, the Queensland Court of Appeal held: 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.11 [31] If the comparison shows that the person with the impairment was treated less favourably, the further question must be asked as to whether the impairment was the ‘basis’ for the less favourable treatment. The central question is therefore to ask why the aggrieved person was treated as he or she was? 10 In the Schedule to the AD Act. 11 [2018] 1 Qd R 289, [29]. -- 6 of 10 -- 7 [32] If there is more than one reason for treating a person less favourably than another, the less favourable treatment will be on the basis of the attribute only where the attribute is a substantial reason for the treatment.12 [33] Section 46 prohibits, in certain circumstances, discrimination in the context of the supply of goods and services. ‘Services’ includes services provided by a public or local government. In my view the definition does not extend to the exercise of powers by police. In other jurisdictions, it has been held that the proper approach is that the investigation of offences by police does not constitute the provision of services in circumstances where the definition of ‘services’ under consideration included “the provision of services by government departments or public authorities”.13 [34] I turn therefore to consider the alternative basis for the complaint, namely that there was discrimination under s 101 in the administration of State laws. [35] Section 101 provides: Discrimination in administration of State laws and programs area A person who— (a) performs any function or exercises any power under State law or for the purposes of a State Government program; or (b) has any other responsibility for the administration of State law or the conduct of a State Government program; must not discriminate in— (c) the performance of the function; or (d) the exercise of the power; or (e) the carrying out of the responsibility. [36] The police investigating Mr Cook’s complaint of fraudulent activity satisfy the pre- conditions to the application of s 101. In exercising their function under the Police Service Administration Act 1990 (Qld) to detect offenders and bring them to justice, they must not have discriminated against Mr Cook.14 Consideration [37] Mr Cook has Bipolar disorder. I find that this is an impairment for the purposes of s 7. There was no evidence as to the characteristics that a person with that attribute generally possesses or which is often imputed to a person with the attribute within the meaning of s 8.15 I find, therefore, that the relevant attribute is Bipolar disorder. [38] Mr Cook argues he was treated unfavourably in relation to the investigation due to perceptions arising from the knowledge of his impairment. Mr Cook argues that the 12 AD Act, s 10(4); Lyons v Queensland [2016] HCA 38; Bell v iiNET Limited [2017] QCAT 114, [11]. 13 VPZ v Victoria Police (Human Rights) [2017] VCAT 1398. 14 Police Service Administration Act 1990 (Qld), s 2.3(d). 15 Lyons v The State of Queensland (2016) 90 ALJR 1107, 1109 [2]. -- 7 of 10 -- 8 comparator for the purposes of assessing whether he was treated unfavourably is ‘a competent professional person without impairment from a medical condition’. [39] The comparator in my view is a person without Bipolar disorder. The fact that Mr Cook was a competent professional person is relevant in providing context to the comparison, in particular, as part of the ‘circumstances that are the same’ within the meaning of s 10. [40] The comparison required therefore is between his treatment as a person with Bipolar disorder and a person without Bipolar disorder. The relevant ‘treatment’ was the conduct of the police in relation to a complaint of criminal conduct, in particular the making of allegedly fraudulent transactions in relation to Mr Cook’s bank accounts. [41] The complaints made by Mr Cook were primarily investigated by Detective Hodgson of Gladstone CIB and later reviewed by Detective Self at the Bundaberg Police Station. [42] Having viewed the police records and other material on the file, I find that the investigations by Detective Hodgson were conducted appropriately. I also find that the investigations were closed in 2014 due to Detective Hodgson concluding that the allegations were unfounded and that, in his opinion, that transactions claimed to have been made fraudulently at the NAB in Gladstone had, in fact, been made by Mr Cook’s wife, Monique. [43] Mr Cook claimed there was insufficient evidence of this, however, an employee at NAB had recognised Monique as the person who had made the relevant withdrawals (having attended school with her) and the bank was able to show that Monique’s driver’s licence had been produced at the time the withdrawals were made. Mr Cook’s father had also confided in police that he suspected that the transactions the subject of investigation at that time, were made by Monique. It is also relevant that Mr Cook’s father was subsequently appointed Administrator for his son and that during the period of his administration, the fraudulent activity ceased. Following the death of Mr Cook’s father, when the control of Mr Cook’s finances passed back to Mr Cook and Ms Cook, the fraudulent activity resumed. It is noted that at the time of the investigation, Mr Cook owed approximately $100,000.00 to the Australian Taxation Office and otherwise owed debts of approximately $30,000.00. [44] The investigation was later resumed in Bundaberg at the request of Mr Cook. I have listened to the records of two interviews between Mr Cook and Detective acting Senior Sergeant Self of Bundaberg police station and of two interviews between Monique Cook and Detective Self. In my view, Detective Self acted appropriately throughout the interviews. He was patient and respectful and gave no impression that he was other than committed to uncovering whether there had been fraudulent activity in relation to Mr Cook’s accounts. [45] In terms of the investigation generally I find that it was approached in a professional way and conducted appropriately. [46] There was no suggestion that the investigation was terminated because Detective Self was told Mr Cook had Bipolar disorder. Monique Cook volunteered in discussion with police that her husband had Bipolar disorder and suggested that he might have been responsible for the transactions, although she couldn’t be sure. She also suggested her -- 8 of 10 -- 9 sister may have been responsible. Following the interview with Monique, Detective Self then asked Mr Cook about his Bipolar disorder. [47] Mr Cook claims that this line of questioning was discriminatory and showed that he was treated less favourably than persons without Bipolar disorder. [48] Detective Self denies this and stated: In direct response to Monique Cook’s disclosure, I spoke to the Applicant about his Bipolar disorder to determine if his condition had any bearing on the Applicant’s complaint. This is a routine investigative process to determine the credibility of any person providing a complaint. [49] I find that this line of questioning did not constitute unlawful discrimination or a breach of s 124(1). [50] It is an important component of any investigation to assess the credibility of evidence given during the course of that investigation. The investigating officer was entitled to, and indeed, authorised by law, to ask questions directed to determining whether there was any reason to doubt the truth of what he had been told. In my view, in these circumstances, it was not discrimination for the Detective to explore whether the applicant’s impairment may, and if so to what extent, have affected his perception of reality. Further, once Monique suggested that her husband may have been responsible for the transactions, the Detective was duty bound to investigate that as a possibility. [51] The Detective was, in my view, similarly justified in contacting Mr Cook’s treating psychiatrist. Detective Self had asked Mr Cook for his doctor’s details and had told him he would be contacting the doctor and why. [52] In any event, I find that the discovery that Mr Cook had Bipolar disorder did not influence the conduct of the investigation nor was it the reason the investigation was closed. In my view, the Detective had formed his own view based on his investigations that there was no evidence of fraudulent transactions. Mr Cook had been unable during the investigation to identify a single clear case of fraudulent activity with respect to his accounts but had nominated the transactions at Coles at Gladstone and Crisco as his ‘best guess’. Detective Self then investigated these transactions further. Monique later admitted to purchasing the groceries at Coles in Gladstone (despite living in Bundaberg) but denied making any purchases at Crisco. Detective Self subsequently obtained a recording of Monique placing orders with Crisco over the telephone and in a separate call apparently attempting to convince the Crisco operator that she had been the victim of fraud so as to obtain a refund. When this recording is later played to Monique during a recorded interview, Monique admits it is her on the telephone to Crisco but when questioned further is heard to stand up and run out of the police station. [53] Further, I find there is no basis in the suggestion by Mr Cook that the Detective spent only 4 hours investigating his complaint. Detective Self gave evidence that he spent a number of weeks investigating Mr Cook’s claims. Based on the preparation evident in the conduct of the interviews and on the steps in fact taken in the course of the investigation, I accept the Detective’s evidence. [54] Accordingly, for the reasons above and in view of the recordings of police interviews, investigative work undertaken and complete lack of any evidence of fraud, I find that -- 9 of 10 -- 10 Mr Cook was not treated less favourably than a person would have been in the same or not materially different circumstances, without Mr Cook’s impairment. [55] It follows that there is no basis for the applicant’s claim that he was unlawfully discriminated against by the police in the conduct of their investigations including their decision to close the investigation. [56] The application is therefore dismissed. [57] The respondent has made a claim for costs in attending the hearing. These costs for travel and accommodation total $1, 100.31. As the applicant was provided with Notice of Hearing and gave no indication to the Tribunal or to the respondent that he would not be attending I order that the applicant pay costs of $1, 100 to the respondent within 21 days of the date of this Order. -- 10 of 10 --