Emanuel v State of Queensland - [2011] QCAT 731

CITATION:

Emanuel and Anor v State of Queensland [2011] QCAT 731

PARTIES:	Sunrise Eliza Kayah Celeste Emanuel Mimi Yahjah Emanuel (formerly known as Wilhelmina Maria Anthonia)
v
State of Queensland

APPLICATION NUMBER:

ADL004-09 / ADL017-09

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

23, 24 and 25 March 2011

HEARD AT:

Hervey Bay

DECISION OF:

Mr Robert N Wensley QC, Member

DELIVERED ON:

30 November 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The complaints are dismissed.

2. No orders as to costs.

CATCHWORDS:

ANTI-DISCRIMINATION – attribute of religious belief – where refusal to have photograph taken for driver’s licence – where there was no less favourable treatment – where term requiring photograph on driver’s licence was reasonable

Anti-Discrimination Act 1991, ss 7(i), 9(a), (9b), 11

Catholic Education Office v Clarke (2004) 138 FCR 121

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Sunrise Eliza Kayah Celeste Emmanuel

Ms Mimi Yahjah Emanuel (formerly known as Wilhelmina Maria Anthonia)

RESPONDENT:

State of Queensland represented by Mr C Murdoch of Counsel instructed by the Crown Law Office

REASONS FOR DECISION

This is the decision and reasons for decision in the Queensland Civil and Administrative Tribunal (‘the Tribunal’) Brisbane Registry matters ADL004-09 and ADL017-09.
In the first matter, the Complainant is Miss Sunrise Eliza Kayah Celeste Emanuel.
In the second matter, the Complainant is Mrs Mimi Yahjah Emanuel (formerly known as Wilhelmina Maria Anthonia).
In each case, the Respondent is the State of Queensland (‘the State’).
Miss Sunrise Emanuel is a daughter of Mrs Mimi Emanuel. Each of these ladies complains that they have been unlawfully discriminated against because the State of Queensland has refused to issue them with driver licences because they declined to allow themselves to be photographed so that the relevant photographs could be imprinted on the relevant licences.
Each of the Complainants says that she cannot agree to having her photograph taken for this purpose because her religious beliefs prevent it, the taking of a photograph being in direct violation of God’s Second Commandment.
The complaint is that the refusal of Queensland Transport to issue a licence, without a photograph on it, amounts to unlawful discrimination, in accordance with the Queensland Anti-Discrimination Act 1991, on the ground of religious belief or activity.
Mrs Mimi Emanuel has another daughter, Angel, who shares the same religious beliefs as her mother and sister. Miss Angel Emanuel sought to be joined in the present proceeding in the Tribunal, but her application to do so was refused.
Each of the Complainants lodged complaints with the Anti-Discrimination Commission of Queensland in 2009. Matters did not resolve there, and duly were referred to this Tribunal. The referrals stated that the ground of complaint, in each case, was “religious belief or activity” in the area of administration of State laws and programs.
The matters arose because the Complainants changed their names (properly in accordance with law), and then sought to have their existing current and valid driver licences reissued, showing their new names. Queensland Transport refused to do this, when the ladies said that they could not have their photographs taken because of their religious beliefs.
In a letter from Queensland Transport, dated 6 April 2009, Mrs Mimi Emanuel was advised as follows –
“In Australia there is a nationally agreed framework for evidence of identity requirements which the Department of Transport and Main Roads has adopted in relation to driver licences. The evidence of identity requirements are [sic] designed to further enhance the integrity of the driver licence system, and apply to all persons applying for the issue or replacement of a Queensland driver licence. The requirements also apply to persons who have changed their name and want their new name shown on their driver licence.
Section 5.2 of the National Driver Licensing Scheme - January 2000 states that a driver licence must show all the personal information listed in section 5.2.1, these being:
·   A licence number for the person to whom it is issued;
·   The first name, second and third initials (if any) and the family name of person;
·   A photograph of the person;
·   The person’s residential address;
·   The person’s date of birth;
·   The person’s signature.
While the primary purpose of the Queensland driver licence is to provide evidence of an authority to drive, the Department of Transport and Main Roads also recognises that a driver licence plays a de facto identity role in the community. Due to this broader use of the driver licence, the Government has a social responsibility to ensure it is secure and resistant to fraud and tampering. Fraudulent activity based on false identities is a national issue that has been estimated to cost Australians more than $1 billion per annum. The Department’s guidelines are designed to assist in reducing this problem.
The changing of a name on a driver licence involves changing the primary details and quite often a change in the signature of the driver licence holder. These details can only be changed on the actual licence by reprinting the licence, which then requires that the licence holder sign the reprinted licence in front of an authorised officer and have another photograph taken.
While you feel that the current requirements unfairly penalise you, I can assure you that this is not the Government’s intention. These requirements apply to everyone who wishes to change the name appearing on their driver licence.”
The essence of the complaints is that the refusal of the relevant State authority to renew or issue driver licences, when the Complainants will not permit their photographs to be taken, involves direct and/or indirect discrimination against them as defined by sections 10 and 11 of the Anti-Discrimination Act 1991.
The relief sought by the Complainants, if they make good their complaints, is, it seems, that they should be issued with a photo-less licence. They make suggestions as to the contents of such licences so as to ensure that, as drivers, they are properly and validly identified.
As well, the Tribunal is asked to consider making orders under section 209(1) of the Anti-Discrimination Act 1991, including –
a)   an order requiring the Respondent not to commit a further contravention of the Act against the Complainants;
b)   an order requiring the Respondent to pay to Miss Sunrise Emanuel, within a specified period, an amount the Tribunal considers appropriate as compensation for loss or damage caused to her;
c)   an order requiring the Respondent to do specified things to address loss and damage suffered by the Complainants (such as Queensland Transport fulfilling their social obligations to make sure that no-one is left out and suffering hardship when issuing driver licences); and
d)   an order declaring void all or part of an agreement made in connection with contravention of the Act (this seems to be a reference to the national arrangements in Australia for evidence of identity requirements, into which the Department of Transport and Main Roads has entered, as referred to in the letter of 6 April 2009, to Mrs Mimi Emanuel, referred to above).

The Hearing and the Evidence

The two matters were managed together in the Tribunal. They came on for hearing before me at Hervey Bay on 23 March, 24 March and 25 March 2011.
The Complainants represented themselves and were assisted by Miss Angel Emanuel. The Respondent was represented by Mr C J Murdoch of counsel, instructed by Queensland Crown Law.
The Complainants and the Respondent each filed, and relied upon, voluminous materials – so voluminous that, in total, they filled several cartons. The parties also relied upon oral evidence given by numerous witnesses.

Complainants’ Materials

The Complainants relied principally upon two volumes of very detailed material. That material begins with a fourteen page letter signed by the Complainants. It is difficult to summarise, but its essence seems to be that the reasons given by the authorities for refusing to change Mrs Mimi Emanuel’s licence details and refusing to issue a new licence to her daughter, Sunrise, are unreasonable, in all of the circumstances, including the circumstance that the Complainants’ refusal to have their photographs taken involves their following “God’s Commandments as they are written in the Bible”.
In particular, the Complainants express their view of the Second Commandment which “tells us not to make an image or a likeness”. In their materials, there are then references to Sir William Blackstone’s writing to the effect that human laws are only valid when in line with God’s laws; to United States legislation; to the Annotated Constitution of the Australian Commonwealth; and to a large number of other matters.
It is argued that the cost and risk of issuing the Emanuels with photo-less driver licences is minimal, and an appeal is made “to have the law of common sense applied and for Queensland Transport to make good to Sunrise and negotiate a workable arrangement with the Emanuels”.
There are ten appendices to this letter, which comprise two volumes of material. They are headed –
a)   Reasonableness;
b)   Consequences of failure to comply;
c)   Cost of alternative terms;
d)   Financial circumstances of the person;
e)   Other exemptions and variations;
f)     Safety of data in cyberspace;
g)   Religious freedom and human rights;
h)   Preamble to constitution;
i)     Statements from experts and government officials; and
j)     Other relevant material provided on disc.
In the letter, to which I have referred, and the ten appendices, are closely written, tightly argued submissions, obviously the result of genuine and, if I may say it, enormous research and industry.
The Complainants also rely upon a joint written statement dated 1 September 2010. It contains eighty (unnumbered) paragraphs.
For the purposes of this decision, I think it is worth reproducing some of the sections of that statement at a little length. I quote (inserting paragraph numbers where none appear in the filed document) –
“1.Does one need a photograph to be able to drive a car? This is not a trick question; it is an honest straightforward question.
2.Of course one does not need a photograph to drive a car. Any child will tell us that.
3.God gave us all our right to travel our roads freely as is reflected not only in our Constitution but also in many other covenants and treaties, as is our right to freedom of thought, conscience and religion.
4.Queensland Transport, a government department is disputing our right to religious freedom and our right to travel our roads freely.
5.They are not only disputing this right, they have actively taken these freedoms away without even allowing an appeal.
6.Queensland Transport argues that soon there will be a law ... that regardless of the outcome of this tribunal ...
7.If what Queensland Transport states were to be true this would obviously make a mockery of this whole conciliation process, both the anti-discrimination law as well as the tribunal. To make a person with a genuine complaint wait for nearly 20 months before they get a tribunal hearing meanwhile pretty much disputing the facts, reiterating policies and procedures and not in any way whatsoever attempting to come to some kind of agreement, even if this were to be interim. None of this shows us goodwill, or the right spirit abiding by anti-discrimination law.
8.To then state that regardless of what the ruling of the tribunal will be, this law ... well .. So now all of a sudden the Anti-Discrimination Act legislation is overruled by other state regulation? How does that work in a fair society?
9.None of this makes sense to us. We understand that the anti-discrimination laws and Tribunal are in place exactly to determine if what has taken place was lawful, fair and reasonable and to prevent discrimination. Not to be outdone by some clever manoeuvring of state legislators.
10.The Australian Constitution states under 116 that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ...
...
11.And under 109, when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
12.The Anti-Discrimination Act 1991 prohibits indirect discrimination under chapter two, Part 3 section 9(b) based upon religious belief or religious activity under chapter Two, Part 2, section 7(i).
...
What happened,
13.The first or second week of March 2009, Mimi’s daughter went in with a power of attorney on Mimi’s behalf to have Mimi’s name changed on her licence.
14.At the time Mimi ... (was) unable to come in herself.
15.The request was refused and we understand it was refused on the basis that Mimi had to come in herself ... and Queensland Transport questioned the validity of the Power of Attorney ...
16.It was also stated that on grounds of religion, the Second Commandment, Mimi is not able to provide a photograph. The Second Commandment in the bible tells us not to create a likeness or image of anything.
17.In response to Mimi’s request she received a letter from Queensland Transport ...
18.Mimi requested help from the Anti Discrimination Board and due to the time lapse of response, eventually sufficiently recovered to go in herself and have the name on her licence changed ...
...
20.After this, Sunrise, Mimi’s daughter went in on 14.08.2009 to have her own name change recorded on her licence. Even though her mum had been refused Sunrise believed it was a legal requirement to have her name change noted and also the Anti Discrimination Board required for her to have asked for the name on her licence to be changed before they could assist her.
21.After she filled out the appropriate forms, the Queensland Transport Officer gave her the forms back typed out to check and Sunrise found a spelling error, which was corrected.
22.When the lady told Sunrise to have her photo taken, Sunrise informed her that she was unable to do so because of her religion.
23.The lady stated that She had never heard of such a thing (despite the fact that at the same office Sunrise and her sister were refused when they came in with their mother’s licence and the same request) and went to the back with Sunrise’s licence, to get her supervisor.
24.Sunrise’s licence is unexpired, still valid for another 3 years or so.
25.The supervisor tells Sunrise, To come back when she changed her mind
26.and to get someone to pick her because now it is illegal for her to drive.
27.Sunrise requests for her unexpired licence to be handed back to her as indeed happened with her mother’s licence. This is refused.
28.She also asked many times for another person to have a look at this, perhaps to phone someone else, or what else is there that can be done?
29.The only response she gets is to, Come back after you’ve changed her mind.
30.Sunrise stood at the counter for perhaps half an hour all up, the latter part in tears and eventually asked, Would you like me to go? to which the response was, Yes, go.
31.Sunrise’s licence has been withheld from her for over a year. She hasn’t driven a car for over a year now.
Synopses of what happened
32....
33.We also believe that Mimi was discriminated against indirectly on grounds of her religious beliefs. Because she was refused to have her name change recorded on her licence. This was a direct result of her inability to produce a photograph due to God’s Second Commandment which tells us in Exodus 20:4 not to create an image or likeness of anything. Reiterated and expanded upon in Deuteronomy 4:16-18.
34.We believe that Sunrise also was discriminated against directly as well as indirectly based on grounds of her religious beliefs.
35.Directly because in a public place, she was ridiculed, Never heard of such a thing, not taken seriously, Come back when you change your mind, victimised Her licence taken away, left in tears and despite repeated requests She was refused an appeal or direction for appeal. Sunrise received different treatment from her mother Mimi whose case is known at Hervey Bay Queensland Transport office and still has her unexpired licence. Yet when Sunrise went in to do what she believed was the right thing to do and inform Queensland Transport of her name change they took her licence away from her in response. Sunrise was told that It was now illegal for her to drive and she needed to phone someone to pick her up all the while she was left standing at the counter in distress.
36.Indirectly because she was unable to provide a photograph based on her religious belief, the Second Commandment, which tells us not to create an image or likeness of anything. Exo 20:4, Deut 4:16 and as a result Sunrise was also refused to have her name change recorded on her licence.”
I should mention here that the Respondent’s lawyers made extensive objections to the evidence of the Complainants. Objections such as the evidence being commentary or submissions rather than statements of facts; opinion and speculation; secondary evidence of documents; irrelevance and the like were made.
I do not consider that it is necessary to analyse the Complainants’ materials by reference to these extensive objections. Although I will refer further to the evidence in the matter, at the end of the day the issues in dispute between the parties are quite narrow and, I think, do not require any extensive findings of fact. Indeed, apart from matters of colour, there really are no factual disputes between the parties of any significance.
The Complainants gave oral evidence at the hearing, and were cross-examined.
They also submitted to me a copy of the Holy Bible, and a copy of a book written by Mrs Mimi Emanuel called ‘Who’s on the LORD’S side’, which deals in some detail with Mrs Mimi Emanuel’s study and understanding of the Second Commandment.
In oral evidence, Miss Sunrise Emanuel characterised the religious beliefs of herself, her sister and her mother, as a small group sharing a view of biblical interpretation, not a religion, but involving a religious belief in terms of section 7(i) of the Anti-Discrimination Act 1991. My note of what she said is –
“That’s what a religion is - it’s your conscience. It’s my moral code of living. I read the bible to find what God wants me to do and I try to live my life accordingly.”
To conclude the summary of the Complainants’ materials, at the end of the hearing they handed up final written submissions (eight pages), as well as a one page closing statement from Miss Sunrise Emanuel.
During the hearing, I asked the Complainants to indicate upon which sections of the Anti-Discrimination Act 1991 they relied. They nominated, without making any submissions, sections 9(d), 7(i) and 9(a); 21 and 22; 46(1)(a)-(d); and 101(a)-(e).
In their submissions and in giving evidence, the Complainants emphasised that they were lay people without legal advice, and were feeling disadvantaged in seeking to argue their case in a Court-like setting while being opposed by qualified lawyers with knowledge of the relevant law.
Having seen the Complainants give evidence, and having considered the materials which they have placed before the Tribunal, I can record that the Complainants have made clear to me what their case is. I do not feel disadvantaged in being able to consider their case because of their lay status or, indeed, because (with respect) large parts of the material which they have placed before the Tribunal are not relevant to the issues in dispute.

I shall turn to those issues shortly, but first it is appropriate to record that there can be no doubting the honesty, integrity, or sincerity of the Complainants. As I mentioned, this is not a case where there is really any dispute about the facts, and certainly it is not a case where issues of credit are involved. The issues ultimately become issues relating to the application of the law to the facts.

Respondent’s Materials

As I have said, the Respondent also put on a large volume of material.
The Respondent relied upon written statements of a number of people. I shall refer to some of the detail in a little while, but for present purposes I record that this evidence came from –
a)   Michael John Skinner, Senior Manager of Transport Policy, with the Department of Transport and Main Roads;
b)   Julie Ann List, Senior Advisor in Service Management, with the Southern Region Services Division of Department of Transport and Main Roads, who at relevant times worked at the Hervey Bay Customer Service Centre in Queensland;
c)   Maureen Joan Teut, Principal Customer Service Officer/Driver Examiner with the Department of Transport and Main Roads, who at relevant times worked at the Hervey Bay Customer Service Centre in Queensland;
d)   Senior Sergeant Blair Clive Webber, of the Queensland Police Service, who has been a Senior Sergeant at the Queensland Police Fingerprint Bureau for more than seventeen years, and has been attached to that unit for more than twice that period;
e)   Detective Acting Senior Sergeant Duncan Gorrie, in October 2010 an Operations Coordinator, Fraud and Corporation Crime Group, with a substantive role as officer in charge of the Identity Crime Unit, and with relevant responsibility in the Hi-Tech Crime Investigation Unit.
Miss Teut and Miss List were not required for cross-examination and their evidence stands unchallenged.
Mr Skinner gave evidence at the hearing, and he was cross-examined. I thought that he was a calm, responsive, and impressive witness, and that he was not shaken by his cross-examination. I accept his evidence, to the extent that it is relevant.
Detective Sergeant Gorrie and Mr Ryan gave evidence by telephone, and they were cross-examined. With respect to both gentlemen, I thought that their evidence was effectively unchallenged by the cross-examination, and I thought that each of them was a credible witness.
Senior Sergeant Webber was not required for cross-examination and his evidence stands unchallenged.
As well, the Respondent relied on some materials which were produced late in the piece. These were a somewhat voluminous report of the Victoria Ombudsman entitled ‘Investigation into VicRoads driver licensing arrangements’, dated December 2007, and another large document, the Annual Report of the Department of Transport and Main Roads, Queensland, for 2009-2010, Volumes 1 and 2. The Respondent relied particularly on pages 3 to 10 in Volume 2 of this Report. Further, reliance was placed on a thirty seven page document published by the Australian Bureau of Statistics, entitled ‘Personal Fraud’, published, it seems, in June 2008, reference 4528.0. It contains findings about statistics relating to victims of identity fraud.
I allowed the Respondent to rely on these documents, but I gave the Complainants what I think was a reasonably opportunity to consider them, during the course of the hearing, and to formulate questions in cross-examination about them.
In accordance with the orders of this Tribunal, the Respondent filed contentions in relation to its case, and I have considered them.
As well, at the conclusion of the hearing the Respondent’s counsel made lengthy written submissions, supported by many references to numerous cases and legislation.
In considering this matter, and in reaching my conclusion, I have, of course, considered these materials, as well as materials submitted by the Complainants.

Summary of the Respondent’s evidence

I have listed the Respondent’s witnesses above.
I do not need to refer to the evidence of Miss Peut and Miss List, because it was not challenged and it seems to sit, in broad terms, with the evidence of the Complainants about the events at the Hervey Bay Department of Transport office. However, it does seem to me that Miss Sunrise Emanuel justifiably felt that she was treated in a heavy handed way when she sought to change her name on her licence. However, by the same token, I accept that the government employees who were dealing with her, were doing their duty as they saw it, if somewhat insensitively. It will be remembered that one of the allegations of direct discrimination against Miss Sunrise Emanuel is that she was ridiculed in a public place: see the thirty fifth paragraph of the Complainants’ joint statement, referred to at page 7 above.

Evidence of Mr Skinner

Mr Skinner is a Senior Manager of Transport Police with the Department of Transport and Main Roads. He is responsible for driver licensing, evidence of identity, and road rule policy and legislation for Queensland. For several years he has held policy roles within the Department of Transport and Main Roads relating to driver licences. He has extensive experience in relation to the policy and legislative framework governing the Queensland driver licence.
His statement exhibits copies of documents resulting from a search of the records of the driver licence history of the Complainants.
He authorised the sending of the letter of 6 April 2009, to Mrs Mimi Emanuel, referred to in detail above.
He says that photograph driver licences were first introduced in Queensland in 1986 because the previous paper licence was easily forged, altered and damaged.
He gives details of how the photograph driver licences are to be issued, including a mandatory step to request a customer to go to a photo booth and have a facial photograph taken. He says that it is a policy requirement of the Department that a driver licence only be issued by an officer with a photograph of the licence holder, this policy being consistent with the National Transport Commission Administrative Guideline: National Driver Licensing and Heavy Vehicle Registration Schemes (known as the National Driver Licensing Scheme). He says that these administrative guidelines have been reproduced in their current form by the National Transport Commission as a result of the passing of Commonwealth legislation and an intergovernmental agreement.
He says that to the best of his knowledge, the Department has not issued a laminated driver licence without a photograph since they were introduced. He says that the Complainants are the only two applicants that he knows of who have requested a driver licence without a photograph, this to be compared with in excess of three million Queensland driver licences issued by the Department.
Mr Skinner also gives evidence about policies relating to changes of name on a driver licence. The essence of the policies is that a customer must notify the Department within fourteen days of a change of name, and all customer products (eg driver licences) held by the person must be updated to show the change. He says that it is not possible to reuse an existing licence to create a new laminated licence.
He says that in his experience it has become increasingly evident and accepted by the Department that the Queensland driver licence is more than an authority to drive. Not only does it enable police to identify quickly a driver in relation to a relevant matter, but it has become a primary form of identification, used by holders when proof of identity is required, for example when opening a bank account, taking out a loan, proving age to purchase liquor, et cetera.
In turn, the view of the Department is that, in following the Administrative Guidelines, the Department has, and accepts that it has, a duty to ensure that a driver licence is only issued where the licence can reliably identify its holder to any law enforcement agency, government agency, commercial entity, or community group. He expresses the view that reliable identification cannot occur in the absence of a photograph, and that a driver licence does not compare to other identity documents such as a birth certificate or a passport, because it is more functional and durable, can easily be carried on a person, and is one of the only photographic identity documents to include a person’s address.
He says that in his position of responsibility, he is of the view that issuing a driver licence without a photograph would –
a)   be inconsistent with nationally agreed administrative guidelines;
b)   significantly compromise the primary uses of the licence; and
c)   set a precedent that would be readily open to abuse by members of the public who may seek to fraudulently reproduce or alter a non-photographic licence.

Evidence of Mr Ryan

Mr Ryan is a qualified lawyer, employed as Manager, Legal Policy for the National Transport Commission. He is involved with national transport reform. Previously he worked with VicRoads.
Mr Ryan gives details of the establishment of the National Transport Commission. There is a relevant Commonwealth Act and an intergovernmental agreement, signed by each of the States and Territories, and under the legislation are established National Transport Commission Driver Licensing Regulations. The purpose of these Regulations is to work towards a system of ‘one person one licence’ and to remove the issuing of multiple licences across Australia.
He gives details of a National Driver Licensing Policy developed and approved by relevant ministers. This Policy led to the creation of the Administrative Guideline – National Driver Licensing Scheme, referred to above.
Mr Ryan gives the details of the relevant Guidelines and Regulations. In particular, the Guidelines set out that a driver licence must show relevant information, including a photograph of the holder and the person’s signature. He offers the view that the required personal details such as name, photograph, date of birth, address, and signature, enable the person to rely on a driver licence as an identity document.
He says that in his experience a driver licence is an important document to verify that a person is licensed to drive, and in reality also is used widely as an identification document, for instance, to establish identity with financial institutions, to obtain a passport, to provide information to law enforcement officers such as police, and to hire a car. In these circumstances, Mr Ryan says, when policy and legislation is developed in relation to driver licence it is important that the secondary purpose, ie use as an identification document, is taken into account, as well as the primary purpose, ie proof that a person is licensed to drive.
I should mention that Mr Ryan’s statement exhibits several voluminous documents which are referred to in the text, such as policies and the like.

Evidence of Senior Sergeant Webber

I do not think that it is necessary to refer to this evidence in great detail. Senior Sergeant Webber is a police fingerprint expert, and gives details of the nature of fingerprints and how they are used in police work.
The point of his evidence is that the Complainants have suggested that they might be identified on licences by their fingerprints rather than by photograph. In short, Senior Sergeant Webber’s evidence is that, with present technology, a driver licence containing an image of a fingerprint instead of a photograph would be of no use to an operational police officer who intercepted a driver as part of a routine traffic check. Such a person would have to be taken to a police station and fingerprinted, and then a complicated process of expert analysis (referred to in the statement) would have to be undertaken.
He says the technology does not exist in Queensland to permit on the spot identification of persons from their fingerprints.
I accept this evidence, noting that it was not challenged by the Complainants in any way.

Evidence of Detective Sergeant Gorrie

Detective Sergeant Gorrie is the officer in charge of the Queensland Police Identity Crime Unit. He investigates crimes including identity takeovers and other identity fraud related crimes.
He says that he has witnessed an increase in cases of fraud, involving fraudulently obtained and manipulated driver licences. A fraudulent driver licence is one for a person who does not exist, while a manipulated licence is one where there is a person with the actual name and the personal details recorded on the driver licence, but those details have been manipulated in some way to create a new identity.
He says that identity fraud and crime is a known precursor to other crimes, such as organised crime and terrorism, and that the increased sophistication of the technology available to individuals is contributing to the increase in forgery of documents, including driver licences.
He gives some statistics of identity fraud and crime in Queensland, and obviously the numbers are significant.
Like other witnesses for the Respondent, he says that a photographic driver licence is a primary identification document within the community. He says that if a person can create a false identity through a fraudulent driver licence, then that person can engage in other fraudulent activities. He gives examples of particular cases about which he knows.
He says that it would not be appropriate for new driver licences to be issued to the Complainants using the photographs of them which the Department has, and gives some detailed reasons for that view. However, I do not understand the Complainants seek that as an outcome.
He says the ability to readily identify a person from a photograph contained on a driver licence is the primary advantage of a driver licence containing a photograph. He then identifies numerous risks which would be associated, potentially, with the issue of photo-less driver licences, including possibilities of theft, misuse, and the like.
He says that he is greatly concerned, as an investigator of fraud and identity theft, that permitting two people to have a driver licence that is valid without a photograph would result in significant risk to the process of obtaining a driver licence and the security features of a driver licence. He expresses the view that the security of the driver licence system would be put at risk, and refers to the possibility of offenders falsely claiming to have the same beliefs as the Complainants, to be issued a driver licence without a photograph.
He makes reference to proposals for a new digital driver licence in Queensland and the use of biometric technology, and expresses concern that if the Complainants were permitted to have a digital driver licence without a photograph, the new project might be undermined.
It occurs to me that Detective Sergeant Gorrie’s concerns might be overstated, but they are logically real and come from a police officer well experienced in the particular area. As I have said, Detective Sergeant Gorrie was cross-examined but I do not think that his evidence was shaken in any way as a result.

Analysis and Decision

The Respondent accepts that, given the religious belief which they hold, the Complainants are persons with a prescribed attribute for the purpose of s 7(i) of the Anti-Discrimination Act 1991. That provision prohibits discrimination on the basis of the attribute of religious belief or religious activity.
The Respondent submits that there is some lack of clarity about the scope and application of the Complainants’ religious beliefs, but I do not think that there is anything in that submission. The beliefs are clearly articulated in terms of a view about God’s Second Commandment, and for present purposes, although there may not be many people who are of this religious belief, that is enough.
The Complainants sought to rely on s 9(a) and s 9(b) of the Anti-Discrimination Act 1991, which provisions, respectively, prohibit direct discrimination and indirect discrimination. It seems to me that these are the provisions which need to be considered in the present case, in conjunction with the application of s 7(i), and, indeed, the Respondent has made its final submissions on that basis.
The Complainants also sought to rely on s 21, s 22 and s 46 of the Anti-Discrimination Act 1991. I accept the submission for the Respondent[1] that these sections have no relevance in this case.
[1] Para 25 of the Respondent’s written submissions.
The Respondent accepts that the issuing of a driver licence is the performance of a function or the exercise of a power under Queensland State law, or for the purpose of a State Government program, in accordance with s 101(a) of the Anti-Discrimination Act 1991. That section provides –
“101 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
...
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.”
In that regard, the Respondent refers to the evidence of Messrs Skinner and Ryan in relation to the statutory, regulatory and policy framework in Queensland relating to the requirement to hold a valid driver licence in order to drive a vehicle.

Direct Discrimination

The Complainants submit that each of them has been directly discriminated against. The Respondent submits to the contrary. Section 10 of the Anti-Discrimination Act 1991 defines direct discrimination on the basis of an attribute as occurring 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.
I accept Mr Murdoch’s submission[2] that the Complainants must prove that they have been treated “less favourably” than a person who does not possess their religious belief would be treated in circumstances that are the same or not materially different. He makes the further submission that this requires the circumstances attending the treatment to be identified, and that what must then be examined is what would have been done in those circumstances if the person concerned did not possess the attribute. I note Mr Murdoch’s reference to well known authority in that regard.
[2] Respondent’s written submissions, para 30.
I accept the further submission, that if the comparison reveals less favourable treatment, there is a further issue that the Complainants must prove, namely, that their religious belief was the reason for the treatment.
The evidence establishes clearly that the Department of Transport and Main Roads, in accordance with the Administrative Guideline, requires that a photograph be taken for a driver licence to be issued or issued in a new name. Ms Sunrise Emanuel was not issued with a new driver licence, as she indicated to Ms Peut and Ms List that she was not able to have her photograph taken. It was in this circumstance that she was required to surrender her existing driver licence.
The point seems to me to be a straightforward one. The question is – would another person, without Ms Sunrise Emanuel’s religious belief, carrying out the same change of name process, not be issued with a new driver licence where that person indicated that (for whatever reason) they were unable to or would not have their photograph taken, and would be required to surrender their existing driver licence?
On the evidence, the answer to that question is – yes. The key to the question is not a matter of religious belief but, rather, a matter of unwillingness to comply with the requirement to have a photograph taken.
That resolves this issue in favour of the Respondent.
In that regard, I accept the submission for the Respondent that there is nothing to suggest that any aspect of the retention of the licence document was motivated by the nature of the Complainant’s religious belief. The reason was policy, procedure, and legislative prescription.

I do not think that there is anything in the point, raised by the Complainants, that they might have been issued with a driver licence receipt. To my mind, that does not go to the discrimination issue.
I should say here that I do not think that the way Ms Sunrise Emanuel was treated by Ms Peut and Ms List amounted to direct discrimination. I have recorded that I am of the view that the treatment was perhaps insensitive and heavy handed, but the point at bottom is that what the officers did was not motivated by or directly associated with Ms Sunrise Emanuel’s religious belief. The religious belief caused her, personally, to refuse to have a photograph taken, but the issue for the officers was the refusal to have a photograph taken.
Therefore, I reject the allegations contained in paragraph 35 of the Complainants’ joint written statement (page 7 above) that there was direct discrimination because Ms Sunrise Emanuel was ridiculed, not taken seriously, left in tears, and refused an appeal or direction for appeal.
Although the facts are different in detail, the same considerations apply to Mrs Mimi Emanuel’s claim that she was directly discriminated against. The point is that although she has not applied in person to have her name changed on her driver licence, if she did so she would say that she cannot be photographed. That fact is a result of her religious belief, but that fact would prevent her from being issued with a new driver licence. At the end, the question is not discrimination on the basis of religious belief. It is one of the application of policy and processes which, in Queensland, apply to anyone who wants a driver licence, and the evidence is clear that anyone who applies for a driver licence but refuses to have a photograph taken will not be given such a licence.

Indirect discrimination

The Complainants allege indirect discrimination against them, and the Respondent denies the complaints.
Section 11 of the Anti-Discrimination Act 1991 sets out the meaning of indirect discrimination, as follows –
“11 Meaning of indirect discrimination
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
term includes condition, requirement or practice, whether or not written.”
...”
I accept the submission of Mr Murdoch[3] that, in order for indirect discrimination to be made out, the following three criteria must apply –
a)   The Department must impose a term, which is defined to include a condition, requirement or practice, whether or not written;
b)   The term must be one with which the Complainant does not comply and a higher proportion of persons without the Complainants’ attribute are able to comply with the term; and
c)   The term must not be reasonable.
[3]        Respondent’s written submissions, para 17.
I also accept that the onus of proving reasonableness, if it comes to the point, lies on the party imposing the term, in this case the Department.
Mr Murdoch concedes that the Respondent imposed a requirement, that in order for a person to change their name on their driver licence, that person is required to be issued with a new driver licence containing a new photograph and a new signature of the person.
Mr Murdoch also concedes that, based on the evidence presented, and despite the previous photographic licences issued to the Complainants, the Respondent accepts that the Complainants are unable to comply with the requirement. In that regard, the Respondent admits that the requirement would be able to be complied with by a majority of other persons seeking to change their name on their driver licence.
I note the reference, in the Respondent’s written submissions, to the decision of the Full Court of the Federal Court of Australia in Catholic Education Office v Clarke (2004) 138 FCR 121. Without setting out the relevant passage verbatim, I accept that the test of reasonableness is an objective one, requiring me to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other; that the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience; and that therefore I must weigh all relevant factors, one of which is whether the relevant authority has some obligation to protect those to whom it owes a duty of care.[4]
[4] See State of Queensland (Queensland Health) v Che Forest [2008] FCAFC 96.
I also note the reference in the Respondent’s written submissions[5] to cases from other jurisdictions where decisions were made (on the particular facts of those cases) that there should be no exception to driver licence photograph requirements, where applicants had individual religious objections to being photographed, and where reliance was placed on matters such as the legitimate governmental interest in promoting highway safety, discouraging fraud, deterring identity theft, and maintaining the integrity of the relevant driver licensing systems.
[5] Paras 58 and 59.
For a significant number of reasons, and by reference to the evidence of Mr Skinner, Mr Ryan, Senior Sergeant Webber, and Detective Gorrie, it is submitted for the Respondent[6] that the imposed term is reasonable.
[6] Respondent’s final submissions, para 60.
Reference is made to numerous matters, which are in turn referenced to the evidence –
a)   A photograph driver licence is a key identity document, often used as a primary means of authenticating identity. The photograph, signature and address are critical in this regard;
b)   The State has a duty of care to ensure that driver licences are issued in a manner ensuring that the correct identity of a person is on the licence, and this, in turn, requires imposing objective requirements of the sort referred to in the evidence;
c)   It is not contrary to the scheme and objects of the Anti-Discrimination Act 1991 to permit a decision making authority to identify a threat to the safety or, in this instance, welfare of other persons (in the case of the community in general, which is adversely affected by identity fraud for whom the welfare of the decision maker is responsible);
d)   Other identification documents are inferior to the driver licence for a variety of reasons outlined in the evidence;
e)   A photograph on a driver licence plays a critical role to expedite and facilitate identification at accident scenes, or when vehicles are stopped by police officers;
f)     A precedent would be created that would undermine the integrity and purpose of a driver licence if an exemption is made, because other applicants would or could seek to obtain non-photographic driver licences, for instance, because of claimed religious beliefs. Some such claims may be genuine, but an exemption would not be able to prevent a person with illegal or fraudulent aims from claiming the relevant belief;
g)   There is an increased and significant risk for identity fraud to occur if a driver licence is issued without a photograph, as set out in the evidence of Detective Sergeant Gorrie, and in the Victorian Ombudsman's document referred to above. To issue a driver licence without a photograph also would be inconsistent with the State’s obligations under the Inter-Governmental Agreement and the Regulation;
h)   The inclusion of a photograph on a driver licence ensures compliance with the National Administrative Guideline, ensuring that a driver licence can be mutually recognised throughout Australia;
i)     Relevant Queensland State legislation requires the chief executive of the Department of Transport and Main Roads and/or the chief executive’s delegate to refuse to consider an application for the grant, renewal or replacement of a driver licence if a person refuses to allow the taking and keeping of a digital photo and signature of the person;
j)     The last point relates to the intention to introduce biometric facial recognition software, aimed at uncovering and preventing instances of duplicate identities, and ensuring renewals of driver licences are genuine and not a consequence of identity theft;
k)   Any exemptions from the mandatory photograph requirement will (it is said) materially increase the vulnerability of the licensing system and the risk of identity-related fraud;
l)     If a small number of complainants were to be accommodated by some alternative non-photographic licence, the State would need to change its processes or technology;
m)   On the evidence, there are no available or practical alternatives to the requirement for a photograph which achieves the same desired end or objective and, in particular, fingerprint technology is not a practical, cost-effective or workable alternative.
I think that these submissions, based on comprehensive evidence, are compelling. I conclude that the imposition of the requirement, to have a photograph on a Queensland driver licence, is a reasonable one in all of the circumstances.
Therefore, the claims of indirect discrimination must fail.
I note that the Respondent also has submitted that Article 18(3) of the International Covenant on Civil and Political Rights (ratified by the Commonwealth of Australia) and set out in the Anti-Discrimination Act 1991 as one of the instruments behind parliament’s reasons for enacting that Act, is relevant in that –
“Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”
I accept the Respondent’s submission that, against this background, the Complainants' freedom to manifest their religion or belief may be limited, particularly where the relevant requirement is to protect public safety and order, namely through a licensing system that seeks to minimise the risk of identity theft and fraud, and to ensure the accuracy of a primary identity document within the community.

Conclusion

The complaints of direct and indirect discrimination, made by the Complainants in the two matters under consideration, will be dismissed.
All the parties to the two proceedings have devoted considerable, if not extraordinary, energy and resources (and undoubtedly the State has encountered significant costs) to the prosecution of the proceedings. However, taking into account the provisions of s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009, in this case there will be no order as to costs.

ORDERS

In each matter, the orders of the Tribunal are:
a) The complaint is dismissed.
b) No orders as to costs.