Chester v Detective Senior Constable Jane Barnaby & Ors (No 2) [2014] QCAT 695

CITATION: Chester v Detective Senior Constable Jane Barnaby & Ors (No 2) [2014] QCAT 695 PARTIES: Georgia Chester (Applicant) v Detective Senior Constable Jane Barnaby Plain Clothes Senior Constable Bill Jones State of Queensland (Respondents) APPLICATION NUMBER: ADL101-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: 26 – 27 August 2014 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 12 December 2014 and 10 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Application Dismissed 2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 and s 191 of the Anti-Discrimination Act 1991 it is ordered that: i) The publication of any information concerning the subject complaint of the Applicant such that the applicant and the individual respondent could be identified is prohibited; ii) The disclosure of the identities of the applicant and the individual Respondents is prohibited; iii) Any identification of the Applicant and the individual respondents to this proceeding, subject to other order of the Tribunal, shall adopt the pseudonyms for the Applicant of Georgia Chester and for the respondents of Detective Senior Constable Jane Barnaby and Plain Clothes Senior Constable Bill Jones. -- 1 of 18 -- 2 CATCHWORDS: Anti-discrimination – Anti-Discrimination Act 1991 (Qld) ss 8, s 9, s 10, s 101, s 103, s 104, s 130, s 133, s 191 Police Powers and Responsibilities Act 2000 (Qld) ss 382, s 418, s 419, s 365 Criminal Code s 357 Disability and Discrimination Act 1992 (Cth) s 5 Operations and Procedural Manual Queensland Police - 16.1.1, 16.10, 16.10.4, 16.9.1, 16.9.4, 16.12.4, 16.9.5, 6.3.1, 16.13.1 Haines v Leves [1987] 8 NSWLR 402 at 471 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Ministry of Defence v Jeremiah [1980] QB 87 Clay Cross [Quarry services] Ltd v Fletcher [1987] 1 WLR 1429 Garton v Hilllcrest Hospital Inc (1984) EOC 92 - 02 at 76-010 Puruis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 Forbes v Australia Federal Police (Cth) [2004] FCAFC 95 Tate v Rafin and Others (2000) FCA 1582 Ware v OAMPS Insurance Brokers [2005] FMCA 664 NSW (Department of Education and Training) v Human Right and Equal Opportunity Commission (2001) 186 ALR 69 McRostie v Boral Resources (Qld) Pty Ltd [1999] Webster v Gilbert, Meadowcroft D Araughonqut [2004] QADT 40 APPEARANCES and REPRESENTATION (if any): APPLICANT: Georgia Chester RESPONDENT: Detective Senior Constable Jane Barnaby and Plain clothes Senior Constable Bill Jones and State of Queensland represented by Mr J.W Merrell of Counsel instructed by Queensland Police Service Solicitor -- 2 of 18 -- 3 REASONS FOR DECISION [1] The Applicant on 13th February 2009 attended Ultra Tune Cairns in an attempt to arrange a refund in respect of repair work done on the Applicants car. At that time she alleges that she was struck on the side of the head with a metal object by the manager. Police attended the scene. The Applicant was taken to the Cairns Police Station where photographs were taken and a statement was taken. The Applicant made a complaint concerning the alleged assault by the Manager. Six weeks after the incident the Applicant received a phone call from Detective Senior Constable Jane Barnaby who informed the Applicant that the Manager was not going to be charged with assualt. [2] Detective Senior Constable Barnaby had taken carriage of the investigation of the complainant assault occasioning bodily harm in February of 2009. At the conclusion of the investigation she submitted a report to police prosecutions seeking a direction in relation to the investigation. On the 7th April 2009 she was advised that there was insufficient evidence to proceed with the charges against the Manager. [3] On the 16th October 2009 Detective Senior Constable Barnaby took carriage of an investigation in relation to a complaint of stalking and dangerous operation of a motor vehicle. The complaint was the Manager of Ultra Tune Cairns. The subject of the investigation was the Applicant. [4] On the 20th November 2009 Detective Senior Constable Barnaby sought to interview the Applicant however the Applicant advised she was not willing to attend the Police Station to do so. On the 7th December 2009 Detective Senior Constable Barnaby attended at 47 Fairley Street Redlynch and eventually arrested the Applicant. At all times a digital recorder was activated. [5] The Applicant was then taken to the Cairns police station. At all times the digital recorder was running and the recording made was tendered. [6] When Detective Senior Constable Barnaby, plain clothes Senior Constable Jones and the Applicant arrived at the Cairns Police Station the Applicant was placed by herself in a room and the handcuffs were removed. The Applicant was then subjected to a pat down search. The digital recorder remained activated for the search. [7] After that search had been completed Detective Senior Constable Barnaby and plain clothes Senior Constable Jones walked outside and had a short conversation. They decided that due to the Applicant’s behaviour starting to become erratic they would need to escort her to the Cairns Police Watch House. They opened the door to the room in which the Applicant had remained and when they turned on the light they observed the Applicant to be lying naked on the floor in a starfish position. -- 3 of 18 -- 4 The digital recorder was running. The Applicant was asked to get up and put her clothes on. The Applicant was assisted in standing up and getting dressed. She was then placed in handcuffs and walked to the Cairns Police Watch House. At all times the digital recorder was running. [8] When they arrived at the Watch House Detective Senior Constable Barnaby and plain clothes Senior Constable Jones complied with routine Watch House procedures in relation to lodging a suspect. [9] Whilst that was occurring the Applicant stripped off her clothing whilst in the holding cell and was gyrating naked against the perspex wall of the holding cell. The procedure in the Watch House was videoed and a copy of the DVD of the Applicant in the holding cell was tendered. [10] Because of the concern about the Applicant’s behaviour the Applicant was placed in a padded cell at the Watch House at the direction of the Watch House Duty Officer. The padded cell is monitored and recorded. The recording of the padded call was tendered. [11] Later Detective Senior Constable Barnaby and plain clothes Senior Constable Jones returned to the Watch House and went to the cell where the Applicant was located and asked the Applicant if she wanted to answer questions in relation to the matters that she had been arrested for. That conversation was digitally recorded and the recording was tendered. [12] On the 8th December 2009 Detective Senior Constable Barnaby generated two cautions on the Queensland Police Service computer system in compliance with QPRIME policy. One of the cautions related to the Applicant stating that she felt suicidal and the other caution was in relation to police utilising a recording device when dealing with the Applicant. [13] Detective Senior Constable Barnaby says that the notification in relation to the Applicant being suicidal was to comply with the duty of care and to ensure that appropriate care could be taken by Police when dealing with the Applicant to ensure her safety. The other notification was to ensure accurate recording of all the interactions between the Applicant and Police. [14] The Applicant is transgender. [15] In a written contention the Applicant claims that Detective Senior Constable Barnaby was in violation of the Queensland Police Service Good Practice guide for interaction with transgender clients and in breach of section 10 of the Anti-Discrimination Act 1991 (Qld). [16] In the outline of submissions on behalf of the Applicant the allegation made is that the First and Second Respondents contravened the Anti- Discrimination Act 1991 (Qld) (the Act) by directing discrimination against the Applicant on the basis of the Applicants gender identity. The attribute identified is that the Applicant was and is transgender. -- 4 of 18 -- 5 [17] During the hearing the Applicant was asked to verbalise her claims with respect to the Act. She affirmed her claim of direct discrimination identifying section 10 of the Act and section 101. [18] The purpose of the Anti-Discrimination Act 1991 (Qld) is set out in part 1 of chapter 2 of the Act. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity including work, education and accommodation. The purpose is to be achieved by prohibiting discrimination that is on a ground set out in part 2 and of a type set out in part 3 and in an area of activity set out in part 4 unless an exemption set out in part 4 or 5 of the Act applies; and allowing a complaint to be made under chapter 7 against the person who unlawfully discriminates; and using the agency and procedures established under chapter 7 to deal with the complaint. [19] Part 3 of the Act by section 9 prohibits direct and indirect discrimination. [20] Relevantly, direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably then another person without the attribute.1 [21] Discrimination on the basis of an attribute is defined in section 8 to include direct discrimination on the basis of a characteristic that a person with any of the attributes generally has; or a characteristic that is often imputed to a person with any of the attributes; or an attribute that a person is presumed to have, or to have had at any time by the person discriminating; or an attribute had, even if the person did not have it at the time of the discrimination. [22] Section 209(1) of the Anti-Discrimination Act 1991 (Qld) sets out the relief that may be granted by the tribunal after a hearing if it decides the Respondent has contravened the Act. That relief includes an order requiring the Respondent to do “specified things” to address loss or damages suffered by the complainant because of the contravention. [23] Section 101 of the Act deals with discrimination in an administration of State laws and programs area and provides: “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 the State Government program; must not discriminate in – (c) the performance of the function; or (d) the exercise of the power; or 1 Anti-Discrimination Act 1991 (Qld) s 10. -- 5 of 18 -- 6 (e) the carrying out of the responsibility. [24] Section 103 of the Act provides that it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies. [25] Section 104 provides that a person may do any act to benefit the members of a group of people with an attribute for whose welfare the Act was designed if the purpose of the Act was not inconsistent with this Act. [26] In written submissions the Applicant sets out the remaining claims against Detective Senior Constable Barnaby. In summary they are: (a) The First Respondent neglected a duty of care as expressed in the Operations and Procedure Manual Queensland Police 16.1.1; and (b) Unlawfully discriminated in the treatment and behaviour towards the Applicant because of her being transgender. [27] Those allegations were not further specifically particularised however the applicant complains of not having the same opportunity as the Manager of Ultra Tune. It is difficult to understand what the complaint is except to say that the Applicant was particularly concerned with the manner an assault investigation of the Manager was conducted. The Applicant contends that it was not impartial. [28] The Applicant complains that the Applicant was arrested rather than given a notice to appear and that there was aggressive behaviour and handcuffing which caused physical injury to the Applicant’s wrists. [29] The Applicant refers to section 382 of the Police Powers and Responsibilities Act 2000 (Qld). [30] Section 382 of the Police Powers and Responsibilities Act 2000 (Qld) provides: “Notice to appear may be issued for an offence - (1) The object of this section is to provide an alternative way for a police officer to start or continue a proceeding against a person that reduces the need for custody associated with arrest and does not involve the delay associated with issuing a complaint and summons under the Justice’s Act 1886. (2) A police officer may issue and serve a notice (a notice to appear) on a person if the police officer – (a) Reasonably suspects a person has committed or is committing an offence; (b) Is asked by another police officer who has a suspicion mentioned in paragraph (a) to issue and serve the notice to appear. -- 6 of 18 -- 7 (3) A notice to appear must be personally served on a person. (4) However, a notice to appear for an offence under… (5) …” [31] The Applicant complains that the physical search was not necessary and it was abuse under the circumstances and refers to 16.10 of the Operations and Procedural Manual of the Queensland Police Service. [32] The Applicant also complains that there was no opportunity given to speak to a friend or relative and refers to sections 418 and 419 of the Police Powers and Responsibilities Act 2000 (Qld). [33] Section 418 provides for a right to communicate to a friend, relative or lawyer as follows: “(1) Before a police officer starts to question the relevant person for an indictable offence, the police officer must inform the person she or he may – (a) Telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and (b) Telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning. (2) The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in sub-section (1)…” [34] Section 419 deals with speaking to a relevant person in the presence of a friend, relative or lawyer. [35] The Applicant also complains that the length of time the applicant was incarcerated was unreasonable and refers to section 404 Police Powers and Responsibilities Act 2000 (Qld). [36] She also complains of the generation of a caution notification including further warnings made in years other than 2009. [37] In my view the references to the various sections of the Police Powers and Responsibilities Act 2000 (Qld) and complaints about alleged breaches of procedures are only relevant in these procedures if those alleged breaches occurred because of the attribute of the Applicant. [38] I do not find that there is evidence to support the contentions that there were breaches of the Police Powers and Responsibilities Act 2000 (Qld) and the operations manual because of the attribute of the Applicant. -- 7 of 18 -- 8 Indeed the holding of the Applicant seemed to me, to be, for the purposes of the protection of the Applicant. [39] The submissions made against Plain Clothes Senior Constable Bill Jones do not in my view identify any treatment of the Applicant by him which could amount to discrimination. I do not find any evidence of such. [40] I had the opportunity of observing the Applicant during her evidence and during the hearing. I also have considered the range of allegations made by the Applicant and compared those allegations with the audio recordings made and the DVD recordings. In my view many of the accounts given by the Applicant do not accord with the vision or the audio provided. [41] The Applicant has alleged that the Queensland Police Service modified or adapted the original footage to suit their own version of events. I find no evidence of that at all. [42] The applicant refers to section 357 of the Criminal Code (concealment of matters affecting liberty) and 16.1.1, 16.10.4, 16.9.1, 16.9.4, 16.12.4, 16.9.5, 6.3.1 and 16.13.1 of the Queensland Police Operation Policy and Procedures Manual to conclude “had the Respondent’s followed their policies and procedures in accordance with this matter (sic) would not have occurred. It is for these reasons submitted in the Applicants submissions the tribunal should find in the Applicants favour.” [43] The Applicant relies on section 133 of the Act which deals with vicarious liability. [44] The outcome the Applicant sought in her contentions, in part included “relief in the form of compensation and the removal of the (sic) material contained in the police records. She sought $5,000.00 compensation for each breach of the acts and the expunging of police records. [45] During the hearing and the submissions it became clear that the Applicant’s claim is that the First and Second Respondents contravened the Anti-Discrimination Act by directing discrimination against the Applicant on the basis of the Applicant’s gender identity. [46] There is no dispute that at all material times the Applicant was transgender. [47] The First and Second Respondents denied the allegations made by the Applicant as set out in her further amended contentions filed on the 22 May 2014 and Third Respondent denies that it is vicariously liable for any conduct of the First or Second Respondent within the meaning of section 133 of the Act. [48] During the hearing the Tribunal asked the Applicant by reference to exhibit 18 an email dated 8th March 2012 from the Applicant’s then lawyer -- 8 of 18 -- 9 Mr Brookes to the Anti-Discrimination Commission Queensland what claims were being made in these proceedings. [49] I was told that the claims being pursued were: (a) The decision not to charge Mr WD with assault upon the Applicant; (b) The Applicant was arrested rather than being charged on summons; (c) The rough inappropriate, rude and aggressive behaviour the Applicant received from the police; (d) The inappropriate request for gender information; (e) The refusal to engage a LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) contact officer. [50] During the hearing I asked the Applicant to particularise her claims of unlawful discrimination against the Second Respondent. The Applicant was given every opportunity to do so but her response was extremely vague, and at best could be said to be an allegation that his behaviour changed once the Applicant told him that she was transgender in that she was placed in the padded cell and he did not apply the third Respondent’s procedures. [51] In my view there is no evidence at all that the Second Respondent engaged in conduct in that manner. [52] The DVD evidence does not show any change in his behaviour and there is no credible evidence to support such an allegation. [53] Section 10(4) of the Act provides that if there is two or more reasons why a person treats or purposes to treat, another person with an attribute less favourably, then a person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. [54] Direct discrimination incorporates the concept of less favourable treatment.2 [55] The words used “less favourably” require that there be two sets of circumstances, the actual and the hypothesised, so that it can be determined by comparison whether the treatment in the former is “less favourable” than in the later in circumstances that are the same or not materially different.3 [56] The use of the words “less favourable” allows for wide discretion in the Tribunal to the facts proved in each case. 2 Section 10(1) of the Act. 3 Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13 at 19 per Mahoney JA. -- 9 of 18 -- 10 [57] In Haines v Leves4 Kirby J said: The words “less favourably” “on the ground of” permit wide scope to the Tribunal in applying judgments to the facts proved in each case. Both involve imprecise phrases which necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in the hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. As was pointed out in that case, a “detriment” concept of discrimination has been adopted: cf Ministry of Defence v Jeremiah [1980] QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is a differentiation of treatment, which results in detriment to the person affected: Clay Cross [Quarry services] Ltd v Fletcher [1987] 1 WLR 1429… Likewise the words of connection “on the ground of”5 require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment “ground” of less favourably treatment requires the Tribunal the characterisation of the relevant cause of factor resulting in a less favourable treatment. In some cases, where multiple possible causes are presented, the task of characterising “grounds” is a difficult one which caused the judgment and discernment. … The phrases “less favourable” and “on the ground of” require a classification of conduct. They are evaluative. They necessitate judgment. [58] The words “less favourably” are to be given there ordinary meaning.6 [59] A relevant question here is whether the Applicant was treated less favourably compared to another person who did not have the attribute of the Applicant in circumstances that were the same and not materially different.7 [60] In Puruis v New South Wales (Department of Education and Training) Gummow, Hayne and Haydon JJ said in respect of the comparator issue: “[22] It may readily be accepted that the necessary comparison to make is with the treatment of the person about the relevant disability. Section 5(1) makes that plain. It does not follow, however, the “circumstances” to be considered are to be identified in the same way the Applicant contended. Indeed, to strip out those circumstances and every feature which presents difficulty to a disabled person would truly frustrate the purpose of the Act…The Appellants contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires [223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to the person without the disability, section 5(1) requires that the circumstances attending 4 [1987] 8 NSWLR 402 at 471. 5 The words used in the Act are “on the basis of”. 6 Garton v Hilllcrest Hospital Inc (1984) EOC 92 -02 at 76-010. 7 Puruis v New South Wales (Department of Education and Training) (2003) 202 ALR 133. -- 10 of 18 -- 11 the treatment given, (or to be given), to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The Appellant’s argument depended on inversion of that order of that examination. Instead of directing attention first to the actual circumstances in which a disabled person was or would be treated disadvantageously, it sought to direct attention to a highly hypothetical circumstance defined by excluding all features of the disability.”8 [61] The Respondents have submitted that the appropriate hypothetical comparator in this case is a person: “(a) who was male or female and who was not transgender or transsexual; (b) who was arrested by the police for questioning in respect of a possible commission of a crime, namely stalking and dangerous operation of a motor vehicle; (c) who behaved in the same way as the applicant did when she was (i) arrested on 7 December 2009; and (ii) at the Cairns police station on 7 December 2009; and (iii) in the cairns watch house on 7 December 2009.” [62] I accept that is an appropriate hypothetical comparator. [63] Whilst it is not necessary that the person who discriminates considers the treatment is less favourable and a persons motive for discrimination is irrelevant, motive may nevertheless be relevant to determining whether or not an act is done “on the basis of” a person’s attribute.9 [64] The alleged discriminator must know of the attribute.10 [65] The onus of proof in respect of the Applicant’s claims is on the Applicant. [66] Here as is often the case where there is unlawful discrimination alleged there is a paucity of direct evidence. I accept that in those circumstances the Tribunal must carefully consider the circumstances established by the evidence and not proceed to draw inferences there from unless the 8 In that case the High Court was considering s 5(1) of the Disability Discrimination Act 1992 (Cth) which is not materially different to s 10(1) of the Anti-Discrimination Act 1991 (Qld). 9 Forbes v Australia Federal Police (Cth) [2004] FCAFC 95 at [69] per Black CJ, Teamberlin and Sackville JJ and Ware v OAMPS Insurance Brokers [2005] FMCA 664 at [112] per Driver FM. 10 Tate v Rafin and Others (2000) FCA 1582 at [65] per Willcoxs CJ and NSW (Department of Education and Training) v Human Right and Equal Opportunity Commission (2001) 186 ALR 69 at [35] per Emmett J. -- 11 of 18 -- 12 circumstances properly give rise to such inferences. It must also carefully consider explanations put forward by a Respondent.11 [67] The Applicants complaint was accepted by the Anti-Discrimination Commission Queensland on the basis that the Respondents may have contravened s 101 of the Act. ALLEGATION A [68] The First Respondent denies that she refused to charge the manager Mr WD with assault or accept the Applicant’s complaint that she was assaulted on the basis of her gender identity. She says that the decision not to charge Mr WD was made because the witnesses involved supported Mr WD’s versions of events and because the defence of the self-defence could not be negated to the required standard. [69] In my view the evidence supports that contention particularly since on the 7 April 2009 a report which was provided to the officer in charge of the Cairns criminal investigation branch was returned indicating that there was insufficient evidence for the institution of proceedings against Mr WD.12 [70] In my view the relevant comparator would have been treated in exactly the same way. This claim should be dismissed. ALLEGATION B [66] The First Respondent denies the allegation that the Applicant was arrested by the First Respondent on the 7 December 2009 because of the Applicants attribute. The First Respondent denies the allegation and says that the arrest was made pursuant to s 365(1)(k) and s365(2) of the Police Powers and Responsibilities Act 2000 (Qld). [67] Section 365 of the Police Powers and Responsibilities Act 2000 (Qld) provides: “(1) it is lawful for a police officer, without warrant, to arrest an adult, the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for one or more of the following reasons – (a) … (k) Because of the nature and seriousness of the offence…” [68] I accept that the evidence is that the First Respondent arrested the Applicant in circumstances where the only reason was to question the Applicant about the suspicion she had that the Applicant committed a 11 McRostie v Boral Resources (Qld) Pty Ltd [1999] QATT 4 at pages 13-15; Webster v Gilbert, Meadowcroft D Araughonqut [2004] QADT 40 at [16]. 12 Paragraphs 54 and 55 of Ms Barnaby’s affidavit and Annexure BVH1. -- 12 of 18 -- 13 crime namely dangerous operation of a motor vehicle and stalking against Mr WD. [69] In my view the relevant comparator would have been treated in exactly the same way. [70] In my view this allegation should be dismissed. ALLEGATIONS C, D and E [71] The Applicant contends that the First Respondent directly discriminated against the Applicant on the 7 December 2009 on the basis of the Applicants attribute: (a) by saying to the Applicant “What are you, a girl up top and a boy down there?”; (b) by the manner the First Respondent conducted the body search of the Applicant; (c) by the First Respondent laughing at the Applicant; (d) by the denial by the First Respondent by the Applicants request for a Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Liaison Officer; (e) the length of time the Applicant was held in custody before being charged. [72] The First Respondent denies those allegations. [73] There is an audio recording covering all of the times that the First Respondents spoke to the Applicant after her arrest on 7 December 2009 and her being taken to the Cairns Police Station and then to the Watch House.13 There is no evidence of the First Respondent asking the question as alleged and there is no evidence that the First Respondent conducted the pat down search. [74] Nothing on the recordings indicates that the First Respondent laughed at the Applicant or denied any request for a LGBTI Liaison Officer. [75] I have viewed all the footage that is contained on the DVDs tendered and I have witnessed the conduct of the Applicant as depicted, which included removing clothing and parading herself and defecating and then throwing facieses at the monitor camera in the padded cell. In those circumstances and in the circumstances of the investigation that the Applicant had dangerously operated a motor vehicle and had stalked WD there is nothing to indicate that length of time she was incarcerated for had anything to do with her attribute. 13 Annexure BVH2, Annexure BVH5, and Annexure BVH62, the Affidavit of Barnaby. -- 13 of 18 -- 14 [76] In my view it is likely that a relevant comparator would have been treated exactly the same way. THE VICTIMISATION ALLEGATION [77] The Applicant contends that the First Respondent victimised her in contravention of section 130 of the Act by placing a notice under her name in the police QPRIME information system on 8 December 2009. [78] The First Respondent denies that allegation because she says the placing of the notice was not a detriment to the applicant within the meaning of section 130(1) of the Act and alternatively the placing of the notice was not made because of any of any of the matters referred to in section 130(1)(a) or (b) of the Act. [79] Section 130 of the Act provides: “(1) victimisation happens if a person (the Respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) – (a) because the complaint, or a person associated with, or related to, the complainant – (i) refused to do an act that would amount to a contravention of the act; or (ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the act; or (iii) is, has been, or intends to be, involved in a proceeding under the act against any persons; or (b) because the respondent believes that the complainant, or a person associated with, or related to the complaint is doing, has done, or intends to do one of the things mentioned in paragraph (a) (i), (ii) or (iii). (2) in this section, a reference to involvement in a proceeding under the act includes – (a) making a complaint under the act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) involvement in the prosecution of an offence against the act; and (c) suppling information and producing documents to a person who is performing a function under the act; and (d) appearing as a witness in a proceeding under the act. -- 14 of 18 -- 15 [80] It is clear that the first respondent did generate two cautions on QPRIME. Her reasons for doing so are explained in her affidavit at paragraph 24. Annexure BVH7 to her affidavit is a copy of the notifications referred to. [81] I accept the evidence that the applicant whilst she was in police custody displayed erratic behaviour and indicated that she was suicidal. The evidence from the audio and the CCTV supports erratic behaviour. [82] In the course of cross examination the applicant agreed that when she was in the Cairns police station and at the watch house she did not tell the first respondent that she was going to make a complaint to the anti- discrimination commission. [83] In my view there is no evidence to support an allegation of victimisation. [84] In any event the entries on QPRIME in my view would have been made in respect of the relevant comparator in the prevailing circumstances. [85] In my view this allegation should be dismissed. [86] There are other allegations made in the course of the applicant’s contentions that the first respondent spoke disparagingly about the applicant to the second respondent, glared at the applicant and laughed at the applicant. I can find no evidence which supports those allegations. In that respect those allegations should be dismissed. [87] The applicant also claims against the second respondent that he, in contravention of s 9 and 10 of the act at the watch house made a remark about the applicants bra with a tone questioning her status and took a photograph with a camera kept behind the counter. [88] The second respondent denies that he made a derogatory remark about the applicant bra and says that he commenced a procedure to lodge the applicant within the watch house and inquired of her whether she was wearing a bra and if it contained an underwire. The reason for that is that a bra with wire in it can be used as a weapon. [89] In my view there is no evidence to support that he made a derogatory remark with a questioning tone about her status. The evidence contained in annexure BVH3 to Detective Senior Constable Barnaby’s affidavit shows the applicant lifting up her top and exposing her breast to the police officers present. [90] Footage does not show the second respondent taking a photograph of the applicant. There is footage of another police officer taking a photograph during the administration of the reception of the applicant into the watch house. [91] In my view there is no credible evidence to support the connections made. They should be dismissed. -- 15 of 18 -- 16 [92] Further allegations are made that the second respondent yelled and laughed at the applicant in contravention of s 9 and 10 of the act. I do not find credible evidence to support that contention and it should be dismissed. [93] The applicant also contends that the second respondent unreasonably deprived the applicant of toilet breaks and health and welfare check. Unreasonably detained the applicant and unreasonably placed her in the padded cell in breaches of s 9 and 10 of the act. [94] The second respondent denies those allegations. He gave a detailed account of his dealings with the applicant in his affidavit and said because of the applicants conduct in the holding cell he was directed to assist in the removal of the applicant from the holding cell to the padded cell. He was directed to conduct a series of regular 15 minute observations of the applicant and during that time the applicant urinated and defecated in the padded call and threw faeces around the cell. He told her that if she stopped behaving like an animal and settles down she may be removed from the padded cell to another cell and would have toilet and water facilities. When that occurred he was directed to escort the applicant from the padded cell to the nearby holding cell. [95] I accept the submission that there is no evidence that the applicant was deprived of toilet breaks, health and welfare checks and was unreasonably detained. In my view it is likely that she was placed in the padded cell because of her conduct and was left there because of her conduct. In my view that would have been the same if had been a hypothetical comparator. [96] This aspect of the application should be dismissed. [97] The claim against the third respondent the state of Queensland is based on section 133 of the Act (vicarious liability). [98] Section 133 relevantly provides: “(1) if any of the persons, workers or agents contravenes the act in the course of work or while acting as an agent that person or worker or agent, as the case may be, are jointly and severally similarly liable for the contravention, in a proceeding under the act may be taken against either or both. (2) It is defence to a proceeding for a contravention of the act arising under subsection (1) if the respondent proves, on the balance of probabilities that the respondent took reasonable steps prevent the worker or agent contravening the act. [99] The third respondent says that it took reasonable steps to prevent the first respondent and or the second respondent contravening the Act by training -- 16 of 18 -- 17 them about the provisions and applications of the act. That is supported by the evidence of acting Senior Sergeant Ross Pascoe who is in his affidavit sworn 1 august 2014 sets out the training provided by the third respondent in respect of unlawful discrimination.14 [100] That in my view would provide a defence if it was necessary, however, my finding is that the applicant has not shown that there has been a contravention of the act and the application is dismissed. [101] In written submissions by the applicant provided after the oral hearing the applicant made further claims including the first respondent made written reports referring to the applicant in masculine pronouns and body size comparison with a man and the first respondent contravened various provisions of the Police Powers and Responsibilities Act 2000 (Qld), Criminal Code and the Operational Procedural Manual Queensland Police service. [102] I can find no evidence to support those allegations and as I have said many of those matters are not relevant except in the sense that I have already pointed out. The tribunal does not have jurisdiction to determine whether the first respondent contravened the Police Powers and Responsibilities Act 2000 (Qld), the Criminal Code or the Operational Procedures Manual, Queensland police service. [103] In that document the applicant made further claims against the second respondent that “(1) the second respondent admitted in to forcing the applicant to a mutilating and compromising position when placing her in the padded cell; (2) the applicant was left in the padded cell without any means of communication; and (3) the second respondent called her a man. [104] None of those matters were the subject of further evidence nor contentions at the hearing. Further, I cannot find any evidence that supports them. In so far as they are made they should be dismissed. [105] The order is that the application is dismissed. [106] Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and s 191 of the Anti-Discrimination Act 1991 I order that: i) The publication of any information concerning the subject complaint of the Applicant such that the applicant and the individual respondents could be identified is prohibited; ii) The disclosure of the identities of the Applicant and the individual Respondents is prohibited; iii) Any identification of the Applicant and the Respondents to this proceeding, subject to other order of the Tribunal, shall adopt the pseudonyms for the Applicant of Georgia Chester and for the 14 Exhibit 16. -- 17 of 18 -- 18 respondents of Detective Senior Constable Jane Barnaby and Plain Clothes Senior Constable Bill Jones. -- 18 of 18 --