Isles v State of Queensland
[2021] QCAT 135
•18 May 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Isles v State of Queensland [2021] QCAT 135
PARTIES: STEVEN ISLES (applicant)
v
STATE OF QUEENSLAND (respondent)
APPLICATION NO/S:
ADL032-19
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
18 May 2021
HEARING DATES:
12 and 13 April 2021
HEARD AT:
Brisbane
DECISION OF:
Member Hughes
ORDERS: 1. The application is dismissed.
2. Steven Isles is to file with the Tribunal and give the State of Queensland any submissions on costs by 4.00pm on 26 May 2021.
3. The State of Queensland is to file with the Tribunal and give Steven Isles any submissions on costs by 4.00pm on 2 June 2021.
4. Steven Isles is to file with the Tribunal and give the State of Queensland any submissions in reply by 4.00pm on 9 June 2021.
5. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 9 June 2021.
CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION –– GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – where police entered alerts, warnings and flags on QPRIME system – where QPRIME is internal information management tool for officer safety - where protected attributes of presumed mental illness and political beliefs – where comparator was person without presumed mental illness and stated beliefs but who had significant interaction with police – where relevant circumstances – whether treated less favourably – where alerts, warnings and flags reasonably necessary to protect health and safety of people at place of work - where treatment was not less favourable than any other citizen with whom police had significant interaction –- where Applicant not treated less favourably because of alerts, warnings and flags - where no evidence of bad faith – where no evidence of indirect discrimination or victimisation - where Respondent treated Applicant no less favourably than it would have for any citizen with significant interaction with police – where workplace health and safety exemption applies
Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 40,
s 44, s 101, s 103, s 108, s 130, s 210, Schedule 1
Human Rights Act 2019 (Qld), s 15
Police Service Administration Act 1990 (Qld), s 2.3(d)Ball v SilverTop Taxi Service Ltd [2004] FMCA 967
Connor v State of Queensland (No 3) [2020] FCA 455
Dovedeen Pty Ltd & Anor v GK [2013] QCA 116
Kiefel v State of Victoria [2013] FCA 1398
Murphy v New South Wales Department of Education [2000] HREOCA 14
Olindaridge Pty Ltd & Ors v Tracey [2014] QCATA 40
Patel v University of Queensland & Anor [2019] QCAT 108
Purvis v State of NSW (2003) 217 CLR 92
Tafao v State of Queensland & Ors [2018] QCAT 409
TT & Ors v Lutheran Church [2013] QCAT 48
Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213
Waters v Public Transport Corporation (1991) 173 CLR 349
Woodforth v State of Queensland [2017] QCA 100
Zil v Queensland Police Service [2019] QCAT 79
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
SD Anderson instructed by Queensland Police Service Legal Unit
REASONS FOR DECISION
What is this Application about?
Police officers risk their lives for community safety. The life-threatening nature of their work requires them to be in a constant state of vigilance. To help protect its officers and manage threats, the Queensland Police Service (QPS) uses the Queensland Police Records and Information Management Exchange System (QPRIME).
Because QPRIME is an internal information management tool for officer safety,[1] members of the public will necessarily have different entries, depending on police intelligence and their interactions with police. Despite this, Steven Isles claimed the QPS as an agency of the State of Queensland directly discriminated against him in its placement and management of alerts, warnings and flags on his personal profile in QPRIME since 2010.[2] He also said the placement and management of the flags directly discriminated against him by influencing the QPS’s interactions with him.
[1]Statement of Deputy Commissioner Paul Taylor 18 November 2020; Statement of Acting Inspector Mark Camilleri dated 19 November 2020; Statutory Declaration of Steven Isles sworn 28 November 2020, [41].
[2]Email Steven Isles to Mark Camilleri and Kevin Guteridge dated 18 December 2018.
The QPS expired the entries in 2018.[3]
[3]Email Steven Isles to Mark Camilleri and Kevin Guteridge dated 18 December 2018.
In what relevant area is the State of Queensland prohibited from discriminating?
The QPS is required not to discriminate in performing its functions, exercising its powers or carrying out its responsibilities.[4] This includes the administration of State law.[5]
[4]Anti-Discrimination Act 1991 (Qld), s 101; Police Service Administration Act 1990 (Qld), s 2.3(d).
[5]Anti-Discrimination Act 1991 (Qld), s 101.
What is direct discrimination?
Direct discrimination occurs if a person treats another person with an attribute less favourably than another person without the attribute would be treated, in circumstances that are the same or not materially different.[6]
[6]Anti-Discrimination Act 1991 (Qld), s 10(1).
Does Mr Isles have an attribute?
Mr Isles believes he was treated differently because he was presumed to have a mental illness and because of his political beliefs about the QPS.[7] In a jurisdiction where parties are often not legally represented, it is not unexpected that these contentions may not be articulated with legal precision.
[7]Applicant submission to Statement of Contentions, undated.
The rules and procedures of the Tribunal do not result in the precise identification and statement of the issues in the way court procedures do.[8] The adequacy of Mr Isles’ contentions is to be considered in a reasonable, realistic and pragmatic way: perfection in pleading practice is not an end in itself.[9]
[8]Olindaridge Pty Ltd & Ors v Tracey [2014] QCATA 40, [5].
[9]Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J).
In a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach, the Tribunal is satisfied that Mr Isles was presumed to have had an attribute of mental illness[10] and possessed beliefs relating to the QPS[11] sufficient to be protected from discrimination.[12]
[10]Affidavit of Steven Isles sworn 3 October 2020, [4], Exhibits E, F, G, S.
[11]Statutory Declaration of Steven Isles sworn 28 November 2020, [28].
[12]Anti-Discrimination Act 1991 (Qld), s 7(h) and (j), s 8(c).
Did the State of Queensland directly discriminate against Mr Isles?
Direct discrimination[13] requires the Tribunal to:
(a)Identify the appropriate comparator;
(b)Determine the circumstances that are the same or not materially different;
(c)Evaluate whether the State of Queensland treated Mr Isles “less favourably” than the comparator and if so, whether it was “on the basis of” or because of the “attribute”;
(d)Determine if the treatment was reasonable; and
(e)Determine if the State of Queensland acted in bad faith.[14]
[13]Anti-Discrimination Act 1991 (Qld), s 10(1).
[14]Tafao v State of Queensland & Ors [2018] QCAT 409, [33].
Who is the comparator?
Mr Isles submitted the comparator is a “reasonable and law-abiding” person without alerts for: mental health; and a propensity for using violence towards police.[15] Conversely, the State of Queensland submitted the comparator is a member of the public who had regular interaction with the QPS.[16]
[15]Applicant submission to Statement of Contentions, undated.
[16]Contentions of the Respondent dated 9 December 2019.
At the start of the hearing, Mr Isles referred to the untimely disappearance of his father as a significant event in his life. Mr Isles’ father was a sergeant in the QPS. This significant event is an integral part of the factual context and is a relevant circumstance involving the QPS.[17] It must form part of the comparator because it differentiates Mr Isles from other “reasonable and law-abiding” citizens. It provides background to his interactions with the QPS.
[17]Affidavit of Steven Isles sworn 3 October 2020, Exhibit C.
Because Mr Isles originally came to police attention due to the untimely disappearance of his father,[18] the comparator is a citizen without the attributes of presumed mental illness and stated beliefs but who had significant interaction with police.
[18]Affidavit of Steven Isles sworn 3 October 2020, [2].
Alternatively, if the comparator is simply a citizen without Mr Isles’ attributes, the relevant circumstances would include the disappearance of a family member who is also a member of the police.
What are the relevant circumstances?
The comparison is made within the context of the relevant circumstances and includes all of the objective features surrounding the treatment of the person claiming to be discriminated against:[19]
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.[20]
[19]Dovedeen Pty Ltd & Anor v GK [2013] QCA 116, [27] citing Purvis v State of NSW (2003) 217 CLR 92, [224] (Gummow, Hayne and Heydon JJ).
[20]Woodforth v State of Queensland [2017] QCA 100, [29].
The circumstances of the treatment are policies and procedures relating to the use of QPRIME,[21] the safety, needs and interests of members of the QPS and the wider community, the untimely disappearance of Mr Isles’ father and Mr Isles’ interactions with the QPS.[22]
[21]Tafao v State of Queensland & Ors [2018] QCAT 409, [66].
[22]Anti-Discrimination Act 1991 (Qld), s 7(h).
Did the State of Queensland treat Mr Isles less favourably?
The QPS did not treat Mr Isles less favourably by or because of its placement and management of the alerts, warnings and flags on his QPRIME profile or in its interactions with him. Police officers place and manage alerts, warnings and flags on QPRIME for anyone for many reasons. The QPS did not treat Mr Isles less favourably than any other citizen with whom it had significant interaction.
The focus of QPRIME is officer safety.[23] It is not accessible by the general public.[24] QPRIME alerts, warnings and flags inform situational awareness. The Tribunal is satisfied that the QPRIME alerts, warnings and flags were reasonably necessary to protect the health and safety of people at a place of work.[25] They informed police of possible variables when interacting with Mr Isles, as is standard practice when interacting with other members of the community.
[23]Statement of Deputy Commissioner Paul Taylor 18 November 2020; Statement of Acting Inspector Mark Camilleri dated 19 November 2020.
[24]Statement of Acting Inspector Mark Camilleri dated 19 November 2020, [3].
[25]Anti-Discrimination Act 1991 (Qld), s 108.
Although the decision to flag Mr Isles as a weapons licence holder was discretionary,[26] that status was an objective fact[27] and undoubtedly relevant for police in their interactions with Mr Isles - or any other citizen who holds a weapons licence.
[26]Statement of Acting Inspector Mark Camilleri dated 19 November 2020, [16].
[27]QCAT Decision GAR130-10 dated 2 August 2010, Senior Member Oliver; Statutory Declaration of Steven Isles sworn 28 November 2020, [41], [47]; Affidavit of Steven Isles sworn 3 October 2020, [5], Exhibits D, K.
Since his father’s disappearance, Ms Isles’ interactions with police have been characterised by trust-related issues on both sides.[28] Mr Isles has expressed views related to the QPS and his father. Those are his own subjective views, to which he is entitled. Similarly, QPRIME is necessarily based on the subjective views of its officers to help them perform their duties for the benefit of the community.
[28]Affidavit of Steven Isles sworn 3 October 2020, Exhibits C, D, E, S; Evidence-in-chief of Deputy Commissioner Paul Taylor.
Moreover, the evidence is not sufficient to support a finding that the alerts, warnings and flags were because of a presumed mental illness[29] or Mr Isles’ views relating to the QPS. None of the QPRIME alerts, warnings and flags referred to the claimed attributes.[30] They were simply part of a tool to help manage police interactions with Mr Isles.[31]
[29]Email Chief Superintendent Kevin Guteridge to Paul Taylor dated 14 December 2018.
[30]Attachments to Letter Julie Maccarone to Anti-Discrimination Commission Queensland dated 22 February 2019; Statement of Acting Inspector Mark Camilleri dated 19 November 2020, [15]; Statement of Acting Inspector Mark Camilleri dated 19 November 2020, [5].
[31]Connor v State of Queensland (No 3) [2020] FCA 455, [295], [328].
Within the context of his father’s disappearance and Mr Isles’ perceived behaviour,[32] the Tribunal is not satisfied that Mr Isles was treated less favourably or that the treatment was on the basis of his attributes.[33] The contextual circumstances provided the basis for the treatment.[34]
[32]Intelligence Log Summary dated 22 February 2019; Affidavit of Steven Isles sworn 3 October 2020, Exhibits C, D, E, F.
[33]Patel v University of Queensland & Anor [2019] QCAT 108, [58].
[34]Statement of Deputy Commissioner Paul Taylor 18 November 2020; Statement of Acting Inspector Mark Camilleri dated 19 November 2020; Connor v State of Queensland (No 3) [2020] FCA 455, [250].
The QPS did not treat Mr Isles less favourably on the basis of his attributes, but was managing officer safety based on perceptions of past interactions with him - as it was entitled. The alerts, warnings and flags provided information to assist police in the performance of their duties.[35] There is no evidence that police accessed QPRIME for anything other than official purposes.[36] This was not less favourable than how a citizen without the attributes but with significant police interaction would have been treated.
[35]Statement of Acting Inspector Mark Camilleri dated 19 November 2020, [16].
[36]Unlike Zil v Queensland Police Service [2019] QCAT 79.
Similarly, the Tribunal is not satisfied that Mr Isles was treated less favourably because of the alerts, warnings and flags. There is no evidence that police officers who attended the traffic incident in 2018 even looked at QPRIME. The body camera footage does not show the attending officers treating Mr Isles less favourably than anyone in a similar situation. There was no other supporting evidence sufficient to find that the QPS has otherwise treated Mr Isles less favourably.
Was the treatment reasonable?
None of the treatment was less favourable than how a citizen without the attributes but with significant police interaction would have been treated.[37] The QPRIME alerts, warnings and flags are associated with factors other than the attributes. QPRIME is a tool for officer safety,[38] with alerts, warnings and flags based on officers’ subjective perceptions. Those perceptions were based on interactions with Mr Isles against the background of a significant police investigation, rather than his attributes. Even if errors of judgement were made,[39] it is not sufficient to establish discrimination.[40]
[37]Connor v State of Queensland (No 3) [2020] FCA 455, [251].
[38]Statement of Deputy Commissioner Paul Taylor 18 November 2020; Statement of Acting Inspector Mark Camilleri dated 19 November 2020.
[39]Statutory Declaration of Veronica Isles sworn 15 February 2021, [8].
[40]Connor v State of Queensland (No 3) [2020] FCA 455, [336]-[337], citing with approval Kiefel v State of Victoria [2013] FCA 1398, [91]-[92].
The QPRIME alerts, warnings and flags were to manage interactions with Mr Isles within the context of officer safety, an ongoing police investigation and the wider community. These entries may not be to Mr Isles’ liking.[41] However, that makes him no different from many other citizens whose QPRIME alerts, warnings and flags are necessarily based on police officers’ subjective views. It is not for the Tribunal to ‘second-guess’ police officers’ discretion in their use of an operational tool designed to protect their interactions with the community.
[41]Affidavit of Steven Isles sworn 3 October 2020, [10]; Statutory Declaration of Steven Isles sworn 28 November 2020, [46] – [48].
The Tribunal is satisfied that the treatment of Mr Isles was necessary and incidental to police officer safety and the community as a whole.[42]
[42]Connor v State of Queensland (No 3) [2020] FCA 455, [307].
Did the State of Queensland act in bad faith?
The Tribunal finds no evidence of bad faith.
Did the State of Queensland indirectly discriminate against or victimise Mr Isles?
Indirect discrimination occurs when a requirement or condition is imposed equally but has an adverse or more adverse impact on persons with different attributes.[43] Because the Tribunal is unable to find evidence of unreasonable terms with which Mr Isles is unable to comply because of his attributes, the State of Queensland did not indirectly discriminate against him.
[43]Waters v Public Transport Corporation (1991) 173 CLR 349, 392.
Similarly, the Tribunal is unable to find any evidence that the QPS did any act for any reason in the Act, to establish it victimising Mr Isles.[44] The Tribunal is not satisfied that the evidence establishes that the State of Queensland victimised Mr Isles.[45]
[44]Anti-Discrimination Act 1991 (Qld), s 130.
[45]Murphy v New South Wales Department of Education [2000] HREOCA 14; TT & Ors v Lutheran Church [2013] QCAT 48, [108] - [110].
What is the Tribunal’s finding?
The Tribunal finds no evidence of direct discrimination. The State of Queensland treated Mr Isles no less favourably than it would have for any citizen who had significant interaction with police.[46]
[46]Ball v SilverTop Taxi Service Ltd [2004] FMCA 967, [41].
Do any of the exemptions apply?
It is not unlawful to discriminate in a prohibited matter if one of the statutory exemptions applies.[47] Even if there was direct discrimination, the Tribunal is satisfied that the workplace health and safety exemption applies on the basis that the QPRIME alerts, warnings and flags were reasonably necessary to protect police officer safety at work.[48]
[47]Anti-Discrimination Act 1991 (Qld), s 103.
[48]Anti-Discrimination Act 1991 (Qld), s 108.
Is this consistent with human rights?
Because the Human Rights Act 2019 (Qld) commenced on 1 January 2020, it post-dates these events and does not apply. In any event, the Tribunal has been unable to find any direct discrimination by the State of Queensland. Equally, no contravention of Mr Isles’ human rights[49] arises from the evidence.
[49]Human Rights Act 2019 (Qld), s 15.
The Tribunal is a creature of statute and the application of the relevant law to the evidence does not meet the requisite standard to make any findings of a contravention of human rights.[50]
[50]Patel v University of Queensland & Anor [2019] QCAT 108, [147].
What are the appropriate Orders?
Because the State of Queensland did not treat Mr Isles less favourably on the basis of his impairment, it did not directly discriminate against him. The Tribunal will allow the parties to make submissions about costs.
The appropriate Orders are therefore:
1. The application is dismissed.[51]
[51]Anti-Discrimination Act 1991 (Qld), s 210.
2. Steven Isles is to file with the Tribunal and give the State of Queensland any submissions on costs by 4.00pm on 26 May 2021.
3. The State of Queensland is to file with the Tribunal and give Steven Isles any submissions on costs by 4.00pm on 2 June 2021.
4. Steven Isles is to file with the Tribunal and give the State of Queensland any submissions in reply by 4.00pm on 9 June 2021.
5. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 9 June 2021.
0
14
4