Graafland v State of Queensland

Anti-Discrimination Act 1991, s 138, s 134, s 166, s 174B and s 175

Ministerial and Other Office Holder Staff Act 2010, s 11

Industrial Relations Act 2016, s 451

Bond v State of Queensland [2017] QCAT 132

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14

Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283

Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120

Graafland v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2) [2025] QIRC 034

Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4

McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4

Pagura-Inglis v Minister for Education [2003] QADT 18

Wong v Medical Board of Queensland & Ors [2006] QADT 41

The Complainant on her own behalf with Ms J. Aitken as a support person

Mr C. Murdoch KC instructed by Ms S. Casey of Ashurst Australia for the Respondent

• [1] These reasons assume familiarity with the earlier decision in Graafland v State of Queensland (Department of the Premier and Cabinet) and Ors (No. 2) ('Graafland No. 2') .[1] Unless otherwise indicated, the definitions used in Graafland No. 2 are used in these reasons.

• [2] The Complainant was employed by the State of Queensland, as an Advisor, in the Department under the Ministerial and Other Office Holder Staff Act 2010 ('the MOOHS Act'). The Complainant worked in the Office of the Premier in what was called the Strategy Unit.

• [3] On 13 July 2023, the Complainant made a complaint to the QHRC alleging that she was the subject of unlawful sex discrimination in the work area, in contravention of the Anti-Discrimination Act 1991 ('the AD Act'), in respect of the remuneration paid to her. On 29 July 2024, the QHRC referred the complaint to this Commission in accordance with s 166 of the AD Act ('the QHRC referral').

• [4] By application in existing proceedings filed on 25 March 2025, the Respondent applied for Directions Orders for the parties to be heard in respect of the discretion conferred on the Commission by s 175(2) of the AD Act ('the Respondent's application').

• [5] Section 175(2) of the AD Act relevantly provides that if a complaint was made more than one year after the alleged contravention of the AD Act, the Commission may deal with the complaint if the Commission considers that, on the balance of fairness between the parties, it would be reasonable to do so.

• [6] As a consequence of the Respondent's application, Directions Orders were made to the parties to file and serve written submissions in respect of whether or not the Commission should exercise the discretion conferred on it pursuant to s 175(2) of the AD Act in relation to the Complainant's complaint.

• [7] The Respondent filed written submissions and read an affidavit of Ms Sean Casey, a solicitor employed by the Respondent's solicitors, filed on 10 April 2025. In summary, the Respondent contends that the whole of the Complainant's complaint was made more than one year after the alleged contravention of the AD Act and, on the balance of fairness between the parties, it would not be reasonable for the Commission to deal with the complaint.

• [8] The Complainant, on 30 April 2025, filed a statement to which was annexed a number of appendices. The Complainant's statement was also in the nature of submissions. I will refer to that document as the 'Complainant's submissions'. The Complainant contends that, for various reasons, her complaint was not made more than one year after the alleged contravention of the AD Act and, even if that was found to be the case, on the balance of fairness between the parties, it would be reasonable for the Commission to deal with her complaint.

• [9] I subsequently heard oral argument from the parties.

• [10] There are two issues I need to determine. First, whether or not the Complainant's complaint was made more than 1 year after the alleged contravention of the AD Act. Secondly, if the Complainant's complaint was made more than 1 year after the alleged contravention of the AD Act, whether, on the balance of fairness between the parties, it is reasonable for the Commission to deal with the Complainant's complaint.

• [11] For the reasons that follow I find that:

• the Complainant's complaint was made more than 1 year after the alleged contravention of the AD Act; and

• on the balance of fairness between the parties, it is not reasonable for the Commission to deal with the Complainant's complaint, with the consequence being that the Complainant's complaint will be dismissed.

• [12] The Respondent, in its submissions, referred to some preliminary matters which it submitted were relevant to the first question the Commission has to determine.

What is the status of a complaint made to the QHRC more than one year after the alleged contravention of the AD Act?

• [13] The Respondent submitted that because the complaint was made to the QHRC on 13 July 2023, this Commission could only accept the complaint if the alleged contravention of the AD Act occurred after 13 July 2022.[2] The Respondent then submitted that, having regard to s 175 of the AD Act, a complaint made to the QHRC more than one year after the alleged contravention of the AD Act, which is subsequently referred to this Commission by the QHRC, was not a complaint unless and until this Commission exercises its discretion to deal with the complaint under s 175(2) of the AD Act.[3]

(1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act.

(2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

• [16] By virtue of s 175(1) of the AD Act, where a complaint is made to the QHRC and is subsequently referred to this Commission, then this Commission '...must accept' the complaint unless the complaint was made to the QHRC more than one year after the alleged contravention of the AD Act.

• [17] However, by virtue of s 175(2) of the AD Act, in respect of a complaint made to the QHRC where the complaint was made more than one year after the alleged contravention of the AD Act, and which is subsequently referred to this Commission, such a complaint may be dealt with by this Commission if it considers that, on the balance of fairness between the parties, it is reasonable to do so. In such circumstances, this Commission has no power to '...deal with' such a complaint - relevantly, to perform the functions conferred on the Commission contained in s 174B(a)(iv) of the AD Act, to hear and decide the complaint - unless it exercises the discretion conferred on it, in favour of a complainant, pursuant to s 175(2) of the AD Act.

• [18] The Respondent submitted that, in respect of the application of s 175(2) of the AD Act, that the onus of satisfying the Commission, to exercise the discretion, lies with the Complainant.[4]

• [19] In my view, this has to be the case having regard to the statutory text of s 175(2) of the AD Act. Once the issue of the complaint being made to the QHRC more than 1 year after the alleged contravention is raised, it is the complainant, as the party needing the favourable exercise of the discretion of this Commission for the complaint to be dealt with, who must persuade this Commission that, on the balance of fairness between the parties, it would be reasonable for the Commission to deal with the complaint. The Queensland Anti-Discrimination Tribunal ('the QADT') came to the same conclusion.[5]

Was the Complainant's complaint made more than 1 year after the alleged contravention of the AD Act?

• [20] Having regard to the statutory text of s 175(1) of the AD Act, it is the date the complaint was made to the QHRC that is the relevant date for determining whether or not the complaint was made within the prescribed time limit of one year.

• [21] The Complainant's written complaint, made to the QHRC on 13 July 2023 (either 'the Complainant's QHRC complaint' or 'her QHRC complaint'), was contained in the QHRC referral. The Complainant relevantly stated:

I believe I was discriminated against with my pay by the Department of Premier and Cabinet when I was hired at the same time as three males.[6]

• [22] In the complaint, when asked if the events she was complaining about occurred within the last 12 months, the Complainant answered 'No'.[7] Further, when asked: 'Did any event you are complaining about happen more than 12 months ago', the Complainant answered 'Yes'.[8]

• [23] The Complainant then stated that the events that were the subject of her complaint commenced in March 2018. When subsequently asked to provide relevant dates, the Complainant referred[9] to a document, attached to her QHRC complaint, which included a sub-heading entitled 'Sequence of events'. The first date given was 9 June 2021, being when the Complainant stated she made her first complaint of sex discrimination, in respect of her remuneration, to the Director-General of the Department[10] under the Ministerial Services Policy on Discrimination, Bullying and Sexual Harassment in the Workplace ('the Policy').[11] Another date included in that document was 10 January 2022 being the date the Complainant stated: 'I moved to the Police Minister's office on an AO7 contract.'

The Complainant's contentions in this Commission

• [24] A complainant's statement of facts and contentions is relevant in determining the dates of the alleged contraventions of the AD Act for the purposes of the application of s 175(2) of the AD Act.[12]

• [25] On 7 March 2025, the Complainant filed her statement of facts and contentions ('the Complainant's contentions'). The Complainant alleges a number of facts.
• [26] First, the Complainant alleges that she was employed by '...the State of Queensland Department of Premier and Cabinet', from March 2018 until February 2024, in the position of Advisor in the Office of the Premier of Queensland and that her position was classified AO5.[13]

• [27] Secondly, the Complainant makes the allegations of fact to found her contention of sex discrimination. The Complainant alleges that:

• she was hired into the Strategy Unit within the Premier's Office at the same time as three other male Advisors;[14]

• Ms Denise Spinks, the Deputy Chief of Staff to the (then) Premier, was responsible '...for allocating individual staff salaries to the work unit.';[15]

• the primary role of the Strategy Unit was direct liaison and communication with Members of Parliament;[16]

• she and the other three male Advisors were allocated '...similar numbers of Members of Parliament to liaise with based on geography and their previous personal and professional relationships [sic] individual Members of Parliament.';[17]

• she was employed at the AO5 level, while two of the male Advisors '...were employed at the AO7 level' and the other male Advisor was employed at '...an AO8 level';[18]

• she became aware of the pay disparity between herself and '...the rest of the work unit in early 2019.';[19]

• three other males were employed in the Unit in about 2020, two of whom were '...paid at AO6 level' and the third '...at the AO7 or AO8 level.';[20] and

• females who were employed to replace certain male Advisors in the Strategy Unit were paid less than the male employees they replaced.[21]

• [28] Thirdly, the Complainant then makes the allegations of fact about her attempts, within the Department, to resolve her allegation of sex discrimination. The Complainant alleges that:

• she made various attempts to discuss '...the pay discrimination within the Premier's Office' with a number of senior employees within that Office and, in 2020, when no progress was made in considering her complaint, she began making complaints in writing to certain persons including Mr Jim Murphy, Chief of Staff to the Premier ('Mr Murphy');[22]

• she made a formal complaint to Ms Rachel Hunter, Director-General of the Department ('Ms Hunter') in June 2021, '...alleging discrimination and victimization' in response to which Ms Hunter completed an internal investigation into the matter in November 2021, the details of which were never provided to her but that she (the Complainant) was informed that the investigation found '...no substance to the allegations';[23]

• by correspondence, she subsequently raised a number of concerns regarding the adequacy of Ms Hunter's investigation in response to which Ms Hunter, in December 2021, advised her that her concerns would be responded to by the Deputy Director-General of the Department, Ms Filly Morgan ('Ms Morgan');[24]

• in November 2021, she was given a pay increase to the classification AO6 by Mr Murphy and while she indicated to Mr Murphy, by way of email, that she was grateful her salary had been increased, she still believed she was the subject of discrimination and '...was seeking a salary increase and back pay.';[25]

• in January 2022, she was transferred to the Office of the Minister for Police and Corrective Services and the Minister for Fire and Emergency Services ('the Office of the Police Minister') where her position was classified at the AO7 level;[26]

• in August 2022, she wrote to Ms Hunter reminding her that she (the Complainant) was yet to receive a formal response to the concerns she had raised about Ms Hunter's investigation, in response to which Ms Morgan informed her that there would be an external investigation into the complaint conducted by a member of the private Bar, Dr Megan Brooks ('Dr Brooks' and 'Dr Brooks' investigation');[27]

• Dr Brooks' investigation, which was not completed until early 2023, found that the reason the Complainant was being paid at a different rate was because she was '...not performing at the same level in a similar role as the rest of her team';[28] and

• following questions the Complainant raised about seeking the details of Dr Brooks' investigation, Ms Hunter ordered that a supplementary investigation be conducted which ran until mid-2023, and that she (the Complainant) was informed that '...neither investigation substantiated bullying or discrimination'.[29]

• [29] Fourthly, the Complainant then makes the allegations of fact concerning her complaint to the QHRC. The Complainant alleges that:

• in July 2023, she made her complaint to the QHRC;[30] and

• she '...was still employed by the Department of Premier and Cabinet until early 2024'[31] when it was proposed she transfer to a new office, with individuals with whom she worked alongside in the Premier's Office '...who I believed made that work environment unsafe.'[32]

• [30] After referring to the relevant provisions of the AD Act, the Complainant then relevantly contends:

1. The respondent discriminated against me on the basis of the attribute of sex.

1. I am a woman. I was treated less favourably on the basis of sex, as defined under section 10 of the AD Act, than they (the Respondent) treated individuals who were [sic] did not have that attribute. Male employees who had materially similar roles and who were performing at a similar level were paid more.

• [31] The Complainant then set out the orders she sought to be made pursuant to s 209(1)(b) of the AD Act:

1. An order under section 209(1)(b) of the AD Act requiring the Respondents to pay $177,059.31 for past economic loss within 28 days. This is calculated by:
   1. The gap between the salary paid to [sic] Applicant and the non-discriminatory salary of [sic] at the A07 level. With the Core Agreement - General Employee 1/9/2021 salary rates used to simplify the calculation.

1. 9.5 per cent superannuation as representative of the period.

1. Relevant dates rounded up to the beginning of the next month.

1. Fortnights rounded down to next whole fortnight.
2. An order under section 209(l)(b) for $23,000 for offence, embarrassment and humiliation suffered.
3. Any other orders the Commission considers appropriate.

• [32] In written submissions, the Respondent submitted that:

• the relevant background is:
  • - on 7 March 2018, the Complainant was employed by the Respondent as a Ministerial staff member under the MOOHS Act, in the Office of the Premier, at the AO5 classification level;
  • - on 31 August 2021, the Complainant was promoted to the AO6 classification level;
  • - on 10 January 2022, the Complainant was transferred to another Ministerial office, where she was employed at the AO7 classification level; and
  • - the Complainant's employment under the MOOHS Act ended on 16 February 2024 by reason of resignation.
• as the Complainant alleges unlawful discrimination in respect to only her placement in the Office of the Premier, it follows then that the alleged contravention of the AD Act must have occurred between 7 March 2018 and 10 January 2022;
• as the complaint to the QHRC was made on 13 July 2023, '...the Commission can only accept' the Complaint if the alleged contraventions occurred after 13 July 2022; and
• as the alleged contraventions occurred between 7 March 2018 and 10 January 2022, in order for the alleged discrimination to be heard and determined, the Commission is required to exercise its discretion under section 175(2) of the AD Act.[33]

• [33] In oral submissions, the Respondent also submitted that:

• the Complainant's QHRC complaint (13 July 2023) was made more than 12 months after the alleged discrimination ceased (10 January 2022) and was made approximately six months after the 12 month cut-off date (10 January 2023); and

• therefore, in terms of the length of the delay, it is a considerable delay.[34]

• [34] The Complainant submits that her QHRC complaint was not made more than one year after the alleged contravention. This was said to be the case for three alternative reasons.

• [35] First, the Complainant submitted that the contravention of the AD Act was still ongoing when she ceased her relationship with the Respondent in February 2024. This is because while she was promoted to an AO6 in September 2021, and she received an AO7 pay classification in January 2022 (when she transferred to the Office of the Police Minister), the AD Act was still being contravened up until February 2024 because the less favourable treatment between March 2018 and January 2022 had not been remedied such that February 2024 should be the date at which the contravention is recognised and the date the one year statutory timeframe commenced ('the Complainant's ongoing dispute claim').[35]
• [36] In written submissions in reply, the Respondent submitted that, in respect of the Complainant's ongoing dispute claim, that date of the alleged contravention of the AD Act is not reflected in the Complainant's contentions.[36] In oral submissions in reply, the Respondent also submitted that as a matter of law, it is not correct to submit that the discrimination was still outstanding because the (alleged) discrimination ceased when the remuneration that was said to be discriminatory ceased, which was when the Complainant left the Office of the Premier.[37]

• [37] Secondly, the Complainant submitted the date the AD Act was contravened was 7 July 2023 because:

• that was the date Dr Brooks' investigation was concluded and she was notified of Dr Brooks' findings; and

• that then '...makes it the date of the respondent's final assessment of my formal complaint' and the date the Respondent made the '...affirmative determination' to her that the contravention of the AD Act (as alleged by her) '...between March 2018 and January 2022 was not to be remedied, leaving the discrimination as a live dispute between the parties' ('the Complainant's investigation claim').[38]

• [38] Thirdly, the Complainant submitted the date of the contravention of the AD Act is 6 June 2023 being the date that she became aware another female employee, Ms Madeline Cunnington, was working in the Office of the Premier and was being treated less favourably, in terms of remuneration, than the male member of the same work unit. The Complainant submits this date is relevant because:

• it was the '...final necessary factor I became aware of to support my complaint';

• she included this allegation in her QHRC complaint; and

• it continues to be relied upon by her as a necessary fact in her complaint ('the Complainant's other female employee claim').[39]

• [39] In respect of the Complainant's other female employee claim, the Complainant, in oral submissions, also submitted:

• Ms Cunnington's remuneration demonstrated to her that the alleged discrimination was more widespread than just her (the Complainant) and the other male persons with whom she was hired;

• while not directly relevant to her, it was the final relevant circumstance that she used to support her QHRC complaint and is contained in her statement of facts and contentions to this Commission;

• in matters such as alleged discrimination, circumstantial facts can materially impact the outcome of a complaint;

• 6 June 2023 was the date she became aware of the fact about Ms Cunnington, and she (the Complainant) reported that information to Dr Brooks;

• the supporting evidence about Ms Cunnington materially impacted her QHRC complaint which was made within one year of that date (6 June 2023); and

• the fact about Ms Cunnington underlines the importance of the one-year statutory timeframe commencing after the internal investigation had been completed; and the (Respondent's) Policy encouraged grievances to be resolved through internal processes before making a complaint to the QHRC because facts may arise that materially impact the nature of the complaint or indeed whether one is made at all.[40]

• [40] In written submissions in reply, the Respondent submitted that, in respect of the Complainant's other female employee claim, the treatment of another female employee (or employees, as referred to in paragraphs 44-47 of the Complainant's contentions) after the Complainant finished working in the Office of the Premier, is irrelevant to the question of whether the Respondent engaged in unlawful discrimination against the Complainant. This was submitted to be the case because the other female employee (or employees) were not employed in the same or similar circumstances as the Complainant as she (the Complainant) had been transferred from the Office of the Premier.[41]

• [41] In oral submissions, the Respondent also submitted that the remuneration of Ms Cunnington, on or around 6 June 2023, is an irrelevant consideration because, even if it were the case that somebody else was being discriminated against, that would not indicate that, at an earlier point in time, the Complainant was being discriminated against.[42]

• [42] The Complainant's complaint and her contentions point to the complaint being made more than 1 year after the alleged contravention of the AD Act.

• [43] First, as set out earlier in these reasons, on the face of the information contained in the complaint made to the QHRC on 13 July 2023, the Complainant expressly acknowledged that the complaint of unlawful sex discrimination about her remuneration was made more than one year before the alleged contravention of the AD Act.

• [44] Secondly, in her contentions, the Complainant alleges the unlawful discrimination, on the basis of her sex in respect of her remuneration, commenced in March 2018 when she began employment in the Office of the Premier.[43]

• [45] Thirdly, the Complainant alleges that the unlawful sex discrimination about her remuneration did not end until she transferred to the Office of the Police Minister in January 2022.[44] For the reasons I give immediately below, this is confirmed by the order for economic loss sought by the Complainant in her contentions.

• [46] These claims, made by the Complainant herself, point to the complaint being made more than 1 year after the alleged contravention of the AD Act

• [47] Further, for the reasons I give below, I cannot accept any of the alternative dates the Complainant claims the alleged contravention of the AD Act occurred.

• [48] I accept the Respondent's submissions about the Complainant's ongoing dispute claim.

• [49] Having regard to s 175(2) of the AD Act, the relevant date in respect of the time limit is the date of the '...alleged contravention of the Act.'

• [50] As submitted by the Respondent, the Complainant, in her contentions, does not contend that the unlawful discrimination was ongoing right up until February 2024 when she resigned from the Respondent. Indeed, as the Respondent correctly submits,[45] in the Complainant's contentions, the claim for economic loss is calculated by reference to the gap between the salary paid to her and '...the non-discriminatory salary of [sic] at the AO7 level', [46] which can only mean that the claimed economic loss ended upon the Complainant receiving a salary at the AO7 level. Contrary to para. 2(j)(ii)D of the Second Further Directions Order made on 6 February 2025, the Complainant does not specify how she worked out or estimated the past economic loss claimed, in that she does not state the dates of the period of time over which that loss is claimed. However, on the material before the Commission, the only period of time the Complainant was employed by the Respondent, when she was not paid at the AO7 classification level, was when she was employed in the Office of the Premier between 7 March 2018 and 10 January 2022. Therefore, the Complainant's contended case is that the alleged contraventions of the AD Act, on the basis of her sex in respect of her remuneration, occurred between 7 March 2018 and 10 January 2022.

• [51] The Complainant's investigation claim is misconceived.
• [52] As I understand the material before me, on 7 July 2023 the Respondent advised the Complainant that Dr Brooks found the Complainant's allegations (about unlawful sex discrimination in respect of the Complainant's remuneration when she was employed in the Office of the Premier between March 2018 and January 2022) were unsubstantiated.[47]
• [53] The fact that the Respondent, on 7 July 2023, advised the Complainant that Dr Brooks concluded there had been no previous contravention of the AD Act cannot, for the purposes of s 175(2) of the AD Act, have any relevant or material bearing on the date or dates the Complainant alleges there was a previous contravention of the AD Act by the Respondent.

• [54] The Complainant's other female employee claim is similarly misconceived.

• [55] The date the Complainant forms her own view that another employee has been the subject of unlawful sex discrimination, in respect of their remuneration, can have no logical relevance to the date the Complainant alleges the AD Act was contravened by the Respondent in respect of the Complainant's remuneration.

• [56] Having regard to the combined effect of s 134(1) and ss 175(1) and (2) of the AD Act, the statutory text focuses on two dates. The first being the date the complainant makes a complaint to the QHRC, and the second being the date the complaint alleges that they were subjected to a contravention of the AD Act.[48]

• [57] The Complainant made her complaint to the QHRC on 13 July 2023. While the Complainant contends that she became aware of the pay disparity between herself and '...the rest of the work unit in early 2019',[49] as referred to earlier, the Complainant's contended case is that the alleged contraventions of the AD Act, on the basis of her sex in respect of her remuneration, occurred between 7 March 2018 and 10 January 2022.

• [58] The other submissions made by the Complainant about this claim are also not persuasive.

• [59] Again, the Complainant's claim that the alleged discrimination was more widespread than just to her (namely, that Ms Cunnington was also allegedly the subject of unlawful discrimination, in respect of her remuneration, on the basis of her sex) cannot logically be relevant to the date the Complainant complains the AD Act was contravened in respect of her for the same alleged reasons. In determining the date or dates the Complainant says the AD Act was contravened in respect of her, the fact she referred to her allegations about Ms Cunnington's unlawful treatment, to Dr Brooks, or in her complaint to the QHRC or in her contentions, is irrelevant. As the Respondent submitted, even if Ms Cunnington was the subject of unlawful sex discrimination, that cannot mean the Complainant had previously been the subject of the same unlawful discrimination.

• [60] While it is true that, in the determination of whether or not someone was the subject of unlawful direct discrimination, a complainant may be forced to rely upon circumstantial evidence,[50] that is a different issue to the issue of the date of the alleged unlawful contravention of the AD Act. The issue raised by the Complainant about circumstantial evidence, to the extent I understand the Complainant is referring to such a matter, goes to a different issue, namely, proof of the alleged unlawful discrimination. The issue of circumstantial evidence, as the Complainant seems to refer to it, does not go to the date the Complainant alleges she was the subject of unlawful discrimination.

• [61] Finally, the fact that, for whatever reason, an employer has undertaken an internal investigation of a complainant's allegations of unlawful discrimination, whether or not done in accordance with a relevant policy of the employer, while possibly relevant to understanding a complainant's explanation for any delay in making a complaint within the statutory time frame, cannot logically have any bearing on the date a complainant alleges they were the subject of unlawful discrimination.

• [62] For these reasons, I find that the Complainant alleges that the Respondent unlawfully discriminated against her, on the basis of her sex in respect of her remuneration, between 7 March 2018 and 10 January 2022.

• [63] The Complainant did not make her QHRC complaint until 13 July 2023.

• [64] In these circumstances, s 175(2) of the AD Act applies. This is because the Complainant's complaint was made more than one year after the alleged contravention of the AD Act.

• [65] In these circumstances, this Commission may deal with the complaint if it considers that, on the balance of fairness between the parties, it would be reasonable to do so.

On the balance of fairness between the parties, is it reasonable for the Commission to deal with the Complainant's complaint?

• [66] There is no dispute between the parties as to the matters that may be considered in the application of s 175(2) of the AD Act, namely:

• any explanation by the complainant for the delay;

• any prejudice to the respondent, should the discretion be exercised in the complainant's favour;

• any prejudice to the complainant, should the discretion not be exercised in the complainant's favour; and

• whether there is a lack of merit to the complaint.[51]

• [67] The parties marshalled their submissions around these matters. I will address each of these factors in turn having regard to the submissions and material referred to by the parties.

• [68] Having stated the above, it is important to keep in mind that while the above five matters may be relevantly considered in determining whether or not the Commission will exercise the discretion conferred on it as contained in s 175(2) of the AD Act, they are not a substitute for the statutory text. Section 175(2) of the AD Act provides that the Commission may deal with a complaint that was made more than 1 year after the alleged contravention of the AD Act if it '...considers that, on the balance of fairness between the parties, it would be reasonable to do so.'[52]

• [69] The Respondent submits that because the alleged contravention occurred during the period the Complainant was employed in the Office of the Premier, between 7 March 2018 and 10 January 2022, the delay is between six months and up to four years and four months which excludes the 12 month period of time in which the Complainant could have made a complaint to the QHRC.[53]

• [70] The Respondent then submits that a delay of four years and four months is very significant, and that delays of five months have been held by the Commission to still constitute a significant delay.[54]

• in Bond v State of Queensland ('Bond'),[55] the Queensland Civil and Administrative Tribunal ('QCAT') accepted '...the matter' up to two years and four months outside the time limit;

• the (alleged) discrimination against her '...was at the very least continuous and ongoing between March 2018 and January 2022' and therefore should not be viewed as isolated incidents between this period and '...is pleaded as an ongoing course of conduct', which was the approach adopted by Vice President O'Connor in Noble v Whitelock & Ors ('Noble');[56] and

• in applying the decision of the QADT in Hopper v Mount Isa Mines & Others ('Hopper'),[57] it is therefore reasonable that she did not make her complaint to the QHRC until after she '...left the workplace in February 2024.'[58]

1. Miss Hunter took just under twelve months from 27 August 2021 to August 2022 when Dr Brooks was engaged as an external investigator to respond to concerns I raised on 27 August 2021 and 30 August 2021 with her initial assessment of my formal complaint as outlined in Appendix One and Exhibits E and F of the respondent's Affidavit of 10 April 2021. This significantly delayed my complaint to the QHRC.

1. In correspondence outlined in Appendix Two Ms Libby Gregoric of the Department was requested to address my concerns about workplace safety and Miss Hunter's initial assessment of my formal complaint. When by 21 June 2022 Ms Gregoric had not corresponded with me I submitted a Right To Information Request (RTI) - RTI 567/22 as encouraged in correspondence from Miss Hunter on 7 September 2021 in Appendix One. The RTI was released to me on 26 September 2022 and did not include the report of Miss Hunter's assessment of the formal complaint. Again, an effort to follow what I believed to be the respondent's preferred internal resolution process under the policy.

1. On 24 August 2022, Dr Brooks was engaged by the respondent as an external investigator to consider the complaint. Her findings were relayed to be [sic] on 7 July 2023. I made the complaint to the QHRC on 13 July 2024, just one week later.

• [73] For the reasons given in the previous heading, having regard to the Complainant's contentions filed in this Commission, my view is that the time the Complainant contends the alleged unlawful discrimination began was when she commenced employment in the Office of the Premier and that it ceased when she transferred from the Office of the Premier to the Office of the Police Minister in January 2022. There is no dispute that the actual date the Complainant commenced working in the Office of the Police Minister was 10 January 2022.[59]

• [74] The submissions made by the Complainant in respect of this consideration are either not relevant or are misconceived.

• [75] First, the fact that the QCAT in Bond (or indeed this Commission in other cases) may have exercised the discretion under s 175(2) of the AD Act, to deal with a complaint that was made significantly more than one year after the alleged contravention of the AD Act, cannot mean that such a case (or cases) are determinatively persuasive precedents. All the relevant considerations, in a particular case, must be considered.

• [76] Secondly, the Complainant's submission that the (alleged) discrimination against her was at the very least continuous and ongoing between March 2018 and January 2022 is, in the context of her case, misconceived.

• [77] While I understand the Complainant's reference to the decision of Vice President O'Connor in Noble,[60] that reference is misplaced in the circumstances of the present case. In Noble, his Honour relevantly held:

• [33] What is alleged is a pattern of behaviour which commenced shortly after the Complainant commenced her employment at Toowoomba Motors and continued until she ended her full-time employment. The alleged discrimination and harassment were "continuing in nature".

• [34] This is not a case where there has been a failure by the Complainant to commence proceedings within time. Rather it is a case where some elements of the complaint are out-of-time while others are within time.

• [78] Those are not the facts in the present case. The Complainant's allegation is that she was the subject of unlawful sex discrimination, in relation to her remuneration, during the period of time she was employed in the Office of the Premier, namely, 7 March 2018 to 10 January 2022. While it may be reasonably contended that the alleged discrimination occurred over that period, there are no elements of the Complainant's complaint where some allegations of unlawful discrimination were made out of time and others made within time. All elements of the Complainant's complaint were made out of time.

• [79] For the reasons given earlier, this is made plain by the first order in the Complainant's prayer for relief in her contentions. The Complainant is claiming past economic loss being the difference between the rate of remuneration she received whilst working in the Office of the Premier (first, at the AO5 classification and then, from 31 August 2021, at the AO6 classification) compared to what she contends she should have been paid if she had not been the subject of the alleged unlawful sex discrimination, being at the AO7 classification. There is no dispute that the Complainant, upon her transfer to the Office of the Police Minister, was paid at the AO7 classification.

• [80] The Complainant's reference, in respect of the length of the delay, to the cited part of the decision of the QADT in Hopper is also misconceived. This is because that part of the decision in Hopper goes to the consideration of a complainant's explanation for the delay.[61]

• [81] Similarly, the claims contained in paragraphs 11, 12 and 13 of the Complainant's written submissions (as reproduced above) do not go to the consideration of calculating the length of the delay, but go to the Complainant's explanation for the delay.

• [82] Having regard to the date the Complainant commenced employment in the Office of the Premier (7 March 2018) and the date she transferred to the Office of the Police Minister (10 January 2022) the Respondent contends that the complaint should have been made to the QHRC between 7 March 2019 and 10 January 2023.

• [83] As a consequence, the Respondent submits that the length of the Complainant's delay in making her complaint to the QHRC is between:

• four years and four months (from 7 March 2019 to 13 July 2023); and

• six months (from 10 January 2023 to 13 July 2023).

• [84] Having regard to the Complainant's contentions, I accept the Respondent's submissions about the length of the delay. While I further accept that the contravention of the AD Act, as alleged by the Complainant, occurred over a period of time, the outer length of the delay - of four years and four months - is a very significant delay. Further, the shorter length of the delay, of six months, is still a significant delay having regard to the entire period of time over which the contravention is alleged to have occurred, namely 7 March 2018 to 10 January 2022.

• the Complainant is wholly responsible for the delay in that there was no impediment, legal or otherwise, to her lodging a complaint with the QHRC at a time earlier than 13 July 2023;[62]

• the Complainant states in her Contentions that she became aware of the alleged pay disparity in early 2019 and made complaints in 2019;[63]

• on 9 June 2021, when the Complainant made a written complaint to the Director-General of the Department ('the Complainant's 9 June 2021 complaint' or 'her 9 June 2021 complaint'), she was appraised of, and had the necessary knowledge of all material factual elements of the alleged contraventions, to enable her to make a complaint to the QHRC;[64]

• to the extent the Complainant says the delay is explained by her awaiting a response to her further concerns:

• - she was given the outcome of her (the Complainant's) 9 June 2021 complaint on 27 August 2021 and approximately four months after that time, on 17 December 2021, the Complainant emailed the Director-General of the Department about a variety of matters including that she was dissatisfied that particular people were not interviewed about her 9 June 2021 complaint and that she did not believe she will have to go through an RTI process to obtain information;[65]

• - it was not apparent on the face of that email (to the Director-General of the Department on 17 December 2021) that she was seeking a further review, rather it appeared to primarily be a complaint about the support provided to her (noting that the Complainant never received a substantive reply to that email to the Director-General on 17 December 2021);[66]

• - she transferred to another Ministerial office in January 2022;[67]

• - on 1 August 2022, a year after she was given the outcome of her 9 June 2021 complaint, and eight months after her transfer, the Complainant sent a further email to the Director-General of the Department following up those concerns, and it is not apparent, on reading that email, that it was a further complaint about alleged pay disparity;[68]

• - it was not until 16 August 2022 that the Complainant sought to raise that the review conducted as a result of her 9 June 2021 complaint was not sufficient;[69] and

• - there is no reason why the Complainant waited one year to re-agitate the same issue regarding alleged pay disparity and that it was, at all times, open to her to make a complaint to the QHRC, an option of which she was informed on more than one occasion.[70]

• [86] In oral submissions, the Respondent submitted that, on its material, this was not one of those cases where there could be any credible suggestion that the Complainant did not know of an ability to lodge a complaint with the QHRC.[71] In this regard, the Respondent:

• referred to the Complainant's 9 June 2021 complaint, which was made under the Policy, and submitted that, at that time, the Complainant was aware of the capacity to make a complaint in respect of an allegation of discrimination on the basis of gender;[72]

• referred to the Policy, which refers to the AD Act and which then refers to the options staff members have in taking action to address complaints of, inter alia, discrimination,[73]namely:

Any staff member who believes they have been discriminated against, bullied, sexually harassed or victimised may take appropriate action.

Option 1 - Discuss with the person concerned

Many problems can be sorted out quickly and informally by speaking directly with the person concerned. Therefore, in the first instance the staff member may attempt to resolve the matter with the other party if they feel comfortable doing so.

Option 2 - Refer to the Chief of Staff or the Premier's Office

If the staff member is not comfortable approaching the other party directly, or if discussing the matter with the person concerned does not resolve the matter, the staff member should refer the matter to their Chief of Staff for discussion.

The Chief of Staff should assist in facilitating resolution of the matter. The Chief of Staff may also assist the staff member to decide whether or not to make a formal complaint.

If the staff member believes that their Chief of Staff is not the appropriate person to deal with the matter or if the matter relates to the Chief of Staff, the staff member should raise the matter with the Premier's Office.

If the matter has not been resolved through options 1 or 2, or if the staff member or Chief of Staff believes that more serious intervention and support is required, the staff member or Chief of Staff may lodge a formal complaint.

A formal complaint may be lodged with the Director-General, Department of the Premier and Cabinet (preferably in writing), via Human Resources, Ministerial Services. An investigation may follow.

Human Resources, Ministerial Services is available to provide advice.

A staff member may choose to lodge a complaint with one of the following organisations:

• Queensland Human Rights Commission
• Australian Human Rights Commission
• Queensland Industrial Relations Commission
• Crime and Corruption Commission;[74] and

• referred to Ms Hunter's letter to the Complainant dated 27 August 2021, informing the Complainant of the outcome of her 9 June 2021 complaint, and which relevantly stated:[75]

As mentioned above, Mr Murphy is happy to meet with you. If you would like to meet with him, he has asked that you contact him directly to organise a mutually suitable time.

If you do not wish to meet with Mr Murphy and you are dissatisfied with my response to your complaint, you can contact the Queensland Human Rights Commission by telephoning them on 1300 130 670 or by email at enquiries@qhrc.qld.au to discuss your complaint.[76]

• [87] The Respondent further submitted that the present case was not one from which it could be inferred it was a situation where the Complainant was reluctant to complain or be concerned about the effect of making a complaint. It was submitted[77] that this was because of the complaints about unlawful sex discrimination the Complainant did make, namely:

• the Complainant's email to Ms Hunter sent on 17 December 2021, which begins by the Complainant stating that as she goes on leave for the holidays and finishing up her time in the Premier's Office, she felt she '...had to raise some ongoing concerns with you' which referred to the trauma she experienced from being discriminated against and bullied in the previous three and a half years she had spent in her position (in the Premier's Office); [78] and

• the Complainant's further email to Ms Hunter sent on 1 August 2022, in which the Complainant stated, amongst other things, that she had not '...been free to come to work and feel free from discrimination, bullying and harassment for years now.'[79]

• [88] The Respondent submitted, by way of conclusion, that the Complainant's delay is not explained and that it can be inferred that she made a conscious decision not to pursue a complaint (to the QHRC) after she was informed of the QHRC process in June 2021.[80]

• [89] The Complainant gives five reasons as her explanation for not making her complaint to the QHRC until 13 July 2023.

The Complainant's expectation or belief that the matter would be resolved internally

• [90] First, the Complainant submits the decision in Hopper[81] is authority for the proposition that an acceptable explanation for her delay (in not making her complaint to the QHRC until 13 July 2023) was that '...between March 2018 and January 2024',[82] she had a reasonable expectation that the discrimination against her would end and that the matter would be resolved through the processes under the Policy.[83]

• from 2019, when she stated she first became aware she was the subject of unlawful sex discrimination in respect of her remuneration, until January 2022 when she transitioned to the Office of the Police Minister, she believed the matter would be resolved by her '...reporting superior' or the Chief of Staff to the Premier;[84]

• she understood they were supportive of increasing her remuneration in line with her male colleagues and it was only the Deputy Chief of Staff to the Premier who would '...not process the necessary human resources paperwork';[85]

• the persons who, on the Complainant's understanding, were supportive of increasing her remuneration in line with her male colleagues, were:

• - Mr Evan Moorhead (whose position is not nominated) and, in this regard, the Complainant annexes to her statement (Appendix Three) a file note taken by her following the conversation she had with Mr Moorhead on 21 January 2021;[86]

• - Mr Jon Persely, Deputy Chief of Staff to the Premier from 2019 up until the time the Complainant moved to the Office of the Police Minister in January 2022 in that '...in all verbal conversations' he was also supportive of addressing '...the pay classification disparity' and, in this regard, the Complainant annexes to her statement (Appendix Four) an email from Mr Persely to the Complainant sent on 3 June 2021 in which Mr Persely states: 'Happy to discuss a way forward on pay';[87]

• - Mr Mark Cridland, Acting Chief of Staff between October 2019 and January 2020 and, in this regard, annexes to her statement (Appendix Five) an email from Mr Cridland to the Complainant sent on 4 October 2019 in which he states: 'I will definitely look into this for you.';[88] and

• - Mr Jim Murphy, then Chief of Staff to the Premier, and Mr Brendan Strong, then Principal Advisor to the Premier between November 2020 and February 2021 '...where Mr Strong had a series of conversations as one of my reporting superiors about my pay' and, in this regard, the Complainant refers to reproductions of text messages between herself and her partner as contained in Exhibit C to Ms Casey's affidavit, pages 28-34;[89] and

• at '...multiple ministerial staff trainings and office meetings - including a whole of ministerial staff training on 21 May 2021 we were told bullying, harassment and discrimination disputes were usually resolved by [sic] through the internal processes outlined in the Policy.'[90]

• [92] In oral submissions, the Complainant submitted that she believed that the (Respondent's) Policy encouraged grievances to be resolved through internal processes before the making of a complaint to the QHRC because '...facts may arise that materially impact the nature of the complaint or indeed whether one is made at all.'[91]

• [93] In reply, the Respondent submitted that in the present case:

• the Complainant made a complaint to the QHRC (on 13 July 2023) when she was still employed by the State of Queensland;

• the Complainant made a complaint about the alleged discrimination on 9 June 2021 to the Director-General of the Department and was provided with an outcome of that complaint on 27 August 2021, which provided finality to the complaint, and it was, at all times, open to the Complainant to explore her external rights, namely making a complaint to the QHRC;

• the Complainant never sought an external review of her 9 June 2021 complaint;

• the Complainant only re-agitated her discrimination complaint on 16 August 2022, which was one year after she received the outcome of her 9 June 2021 complaint; and

• contrary to the Complainant's submissions, it was not until 16 August 2022 that she sought to raise issues with the outcome of her 9 June 2021 complaint in that the correspondence she sent between August 2021 and August 2022 was about other matters.[92]

• [94] I am not persuaded that this explanation by the Complainant is acceptable. This is for a number of reasons.

• [95] First, the circumstances in Hopper are different to the circumstances in the present case.

• [96] The complainant in Hopper stated that she was hopeful the sexual harassment and discrimination that she had suffered between September 1992 and April 1994, would end while she remained in the relevant workplace.[93] It was for that reason that the complainant made no complaint about the sexual harassment and sex discrimination until after she left the employment of the employer. Those facts were accepted by the QADT as being reasonable[94] in coming to its conclusion that, on the balance of fairness between the parties, it was reasonable to deal with the complainant's out of time complaint.[95]

• [97] In the present case, the Complainant made informal complaints and a formal complaint about the alleged sex discrimination which resulted in an internal investigation of her complaint and, following the Complainant's expressed dissatisfaction with the outcome of the internal investigation, the Respondent organised an investigation that was conducted by a member of the private Bar. It was only after the completion of the investigation by Dr Brooks that the Complainant made her complaint to the QHRC.

• [98] These events are borne out in the Complainant's contentions and in the evidence before me.

• [99] The Complainant first made oral and written complaints within the Premier's Office, about the alleged sex discrimination concerning her remuneration, in 2019 and 2020. Then, the Complainant alleges that when no progress was being made, in 2020 she made complaints, in writing, with the Premier's Office.

• [100] Then on 9 June 2021, the Complainant made her formal complaint to the Director-General of the Department. The Complainant was given an outcome of that complaint on 27 August 2021.

• [101] On 17 December 2021, the Complainant emailed the Director-General of the Department by which she expressed her dissatisfaction with the outcome of her formal complaint. However, despite not getting a response, it was not until 1 August 2022,[96] and then by further email correspondence sent on 16 August 2022 and 19 August 2022,[97] that the Complainant further agitated her dissatisfaction with the outcome of her formal complaint.

• [102] That further agitation resulted in the investigation being conducted by Dr Brooks[98] which was completed in early 2023 and then supplemented by further investigation by Dr Brooks in mid-2023.[99] The Complainant was advised of the outcomes of Dr Brooks' investigations on 7 July 2023.[100]

• [103] It was after that, on 13 July 2023, that the Complainant then made her complaint to the QHRC.

• [104] Over the period of time from 2019 to 13 July 2023, the Complainant remained employed by the Respondent. Unlike the circumstances in Hopper, the Complainant, whilst employed by the Respondent, actively pursued her complaint of alleged unlawful sex discrimination, in respect of her remuneration, with her employer.

• [105] Secondly, I refer to the Complainant's submission that from 2019 (when she stated she first became aware of the unlawful discrimination in respect of her remuneration) until January 2022 (when she moved to the Office of the Police Minister) she believed the matter would be resolved by her reporting supervisor or by the Chief of Staff to the Premier. I do not find this contention to be plausible. This is because her complaint of unlawful sex discrimination, about her remuneration, had not been resolved by her reporting supervisor or by the Chief of Staff to the Premier by the time she moved to the Office of the Police Minister in January 2022. That is to say, the Complainant's remuneration had not been increased to the AO7 classification level while she was still working in the Office of the Premier and, at the time she left the Office of the Premier, (January 2022), she did not then make a complaint to the QHRC.

• [106] Thirdly, the Complainant submitted that in Ministerial staff training, she was informed that discrimination disputes were usually resolved through the internal processes outlined in the Policy, and that was the reason for her not making her complaint to the QHRC earlier than 13 July 2023. I do not find this contention to be plausible. The difficulty with this contention is that the Complainant was given the outcome of her 9 June 2021 complaint, being her formal, internal complaint about the alleged sex discrimination, by the letter from the Director-General dated 27 August 2021. At that point in time, the Complainant did not make a complaint to the QHRC.

• [107] Fourthly, the Complainant submitted that she believed that the Policy encouraged grievances to be resolved through internal processes before making a complaint to the QHRC. The Complainant submitted this was the case because facts may arise that may materially impact the nature of the complaint, including whether a complaint to the QHRC would be made at all. I cannot accept this submission. This is because the Complainant's expressed belief is directly inconsistent with the content of the Policy.

• [108] As proven by the content of the Complainant's 9 June 2021 complaint,[101] that complaint was made by the Complainant pursuant to the Policy.[102] It may reasonably be assumed that because the Complainant's 9 June 2021 complaint was made pursuant to the Policy, the Complainant would have been familiar with its contents. The relevant part of the Policy is set out in paragraph [86] of these reasons. The text of the Policy does not provide any basis for the formation of the belief held by the Complainant as expressed in her submissions. That is to say, the Policy does not encourage grievances to be resolved through internal processes before making a complaint to the QHRC. On the text of the Policy, an employee had the option to make a complaint of discrimination to the QHRC without first attempting to resolve the complaint internally.

• [109] Even if I am wrong about my assumption as expressed in the previous paragraph, as submitted by the Respondent, when the Complainant was advised of the outcome of her 9 June 2021 complaint, by Ms Hunter's letter to the Complainant dated 27 August 2021, Ms Hunter stated that if the Complainant was dissatisfied with the outcome, the Complainant could contact the QHRC. In this regard, Ms Hunter gave the Complainant the telephone number of the QHRC and the relevant email address of the QHRC (as set out in paragraph [86] of these reasons).

• [110] For these reasons, I do not accept the Complainant's explanation for the delay being her belief that the matter would be resolved internally within the Department.

• [122] Thirdly, the Complainant advances, as an explanation for her delay, '...the fear of retribution by the respondent.'[103]

• [123] The Complainant submits that at all times she was aware '...successive Chiefs of Staff to the Premier and other senior staff in the Office of the Premier had terminated' her partner for making public interest disclosures in April and September 2018 and in November 2020, and that '...demonstrates how senior staff in the Office of the Premier reacted to public complaints.'[104]

• [124] The Complainant then submitted that, as a consequence of the above, she wanted to be sure she exhausted '...all internal processes until I engaged with the QHRC and the Commission where the complaint would be made public' to minimise the risk of her being dismissed given the history of senior staff in the Office of the Premier to terminate staff for loss of confidence.[105]

• [125] In oral submissions, the Complainant submitted that:

• the entirety of any delay can also be explained by her fear of retaliation;

• her partner, who also worked in the Office of the Premier and other Ministerial Offices, had been terminated on three occasions for making public interest disclosures;

• she was therefore intimidated into following the internal process of the bullying, harassment and discrimination policy of the Respondent before external options in the Policy were taken up; and

• she believed this would make it less likely that the Premier's delegate would terminate her employment for loss of confidence.[106]

• [126] The Respondent submitted that there was no evidence that reprisal action was taken against the Complainant's partner, and there is no evidence or reasonable basis to the belief that she would be subject to adverse action if she made a complaint to the QHRC, such that any fear held by the Complainant '...was groundless'. The Respondent further submitted that the Complainant made a complaint to the QHRC in July 2023 when she was still employed by the Respondent.[107]

[127] In oral submissions, the Respondent also referred to paragraph 30 of the Complainant's submissions, where the Complainant submitted that on 12 May 2023, she notified this Commission (pursuant to the provisions of the Industrial Relations Act 2016 ('the IR Act')) of an industrial dispute in '...an effort to obtain the original report by Dr Brooks before the supplementary investigation was completed in an effort to resolve the matter through the internal grievance resolution pathway under the policy.'[108] The Respondent then submitted that:

• matters of concern were being raised by the Complainant with the Respondent and then in respect of getting hold of Dr Brooks' report by an industrial dispute being lodged;

• the industrial dispute lodged is an example of continual activity on the part of the Complainant, either raising complaints or, in this case, bringing an industrial dispute against the Respondent; and

• - one, it was not a situation where the Complainant was reluctant or concerned about complaining about matters of concern; and

• - two, it is not a situation where it could be inferred that the Complainant is too busy or stressed to be able to lodge a discrimination complaint because a range of other complaints, including a formal industrial dispute, had been lodged over the course of time.[109]

• [128] In further oral submissions, the Complainant submitted:

Ministerial staff can be terminated because of a loss of confidence by the Minister. I had no reasonable way to understand that no retaliatory action would be taken. All I understood was that retaliatory action in the form of termination had been taken against my partner in the same office. My lived experience was the only understanding I had to go on. So of course, that influenced my consideration about whether to make a public complaint to the Queensland Human Rights Commission before following what I believed to be the respondent's preferred internal process.[110]

• [129] I am not persuaded this is an acceptable explanation for the Complainant's delay.

• [131] First, there is no objective evidence which supports the Complainant's expressed fear of retaliatory action. As submitted by the Respondent, the Complainant was still employed by the Respondent, albeit not in the Office of the Premier, but in the Office of the Police Minister, at the time that she made her complaint to the QHRC. This factor is inconsistent with her claim that she did not make a complaint to the QHRC, until the date that she did, for fear of retaliatory action by the Respondent. That fact is expressly inconsistent with her submission that she wanted to be sure she exhausted all internal processes until she engaged with the QHRC, where her complaint would be made public, to minimise the risk of her being dismissed.

• [132] Secondly, in terms of the Complainant's fear of retaliatory action taken only from within the Office of the Premier, no probative evidence was led by the Complainant that supported the reasons she asserted for her partner's dismissal from the Office of the Premier. The only evidence led by the Complainant in support of this submission was Attachment 7 to her submissions. This consisted of what are seemingly innocuous internal emails from within the Office of the Premier, dated 21 April 2021, in response to a news article dated 20 April 2021 headed: 'Government brings out legal big guns to fight Barbagallo bullying complaint.'

• [133] Thirdly, the Complainant's concern about her complaints being made public, as being a basis for her belief that retaliatory action may be taken against her, did not dissuade her from notifying this Commission of a dispute in May 2023. That notice was lodged before the Complainant made her QHRC complaint but while the Complainant was still employed by the Respondent. It was lodged in an endeavour to obtain a copy of Dr Brooks' first investigation report. While the Complainant, when she lodged the notice of dispute, was employed in the Office of the Police Minister, the subject matter of that dispute concerned three allegations she made about her time when employed in the Office of the Premier, including her allegation of sex discrimination about her remuneration.[111]

• [134] There is no evidence to support the Complainant's belief that senior staff in the Office of the Premier would take retaliatory action if she made a public complaint.

• [135] For these reasons, I do not accept the Complainant's explanation for the delay being her fear of retaliation.

• [136] Fourthly, the Complainant submitted that an explanation for her delay was that she followed the Policy. The Complainant submitted that the Policy was presented in the whole of Ministerial staff and office training as a procedure '...which we were encouraged to follow.' In this regard, the Complainant submitted that the training she received included advice that:

These trainings included advice that grievances under the policy were usually able to be resolved through the internal process - Options One through Three under the policy, before the external Option Four where a complaint is made to the QHRC.[112]

• [137] The Complainant then detailed the steps she took, with a view to resolving her complaint internally, prior to her making her complaint to the QHRC.[113]

• [138] In this regard, the Complainant refers to the decision of Industrial Commissioner Power in Michalakellis v LMM Holdings Pty Ltd No. 3[114] in which a delay of 17 months was accepted as an explanation because the complainant had acted on concerns by making an internal complaint through his wife.[115]

• [139] In oral submissions, the Complainant submitted that:

• at all times between August 2021 and July 2023, she believed she was following the Policy;

• on an ordinary reading of the Policy, and in the Ministerial staff and Office trainings, staff were encouraged to pursue an internal dispute resolution process that involved making a complaint to the employee's Chief of Staff, then to the Premier's Office Chief of Staff and finally to the Director General of the Department of the Premier and Cabinet; and

• at training on 21 May 2021, facilitators Mr Stuart Busby and Ms Morgan '...told us most disputes were usually resolved through this internal process.'[116]

• [140] The Respondent submits that the Policy does not suggest that individuals should follow three processes before making an external complaint but, rather, the Policy sets out four distinct options for resolving issues and there is no obligation to escalate complaints through each of the options.[117] The Respondent further submitted that the Complainant:

[C]ould not have believed that she was working through the options in circumstances where she made a formal complaint on 9 June 2021, received that outcome, and was informed of her external review rights (i.e. a QHRC complaint).[118]

• [141] I am not persuaded that this explanation is acceptable.

• [142] For the reasons given earlier under the heading of 'The Complainant's expectation or belief that the matter would be resolved internally', there is no evidence that supports the belief held by the Complainant that she had to exhaust the internal processes, set out in the Policy, before she could make her complaint to the QHRC. The text of the Policy provides no support for such a belief. Further, given the undisputed text of the Policy, I am not prepared to act on the Complainant's unsworn assertions about what was allegedly said in the training sessions about the Policy.

• [143] Furthermore, the Complainant's expressed belief is directly inconsistent with the letter the Complainant received from the Director-General of the Department, Ms Hunter, dated 27 August 2021. In that letter, Ms Hunter, when advising the Complainant of the outcome of her 9 June 2021 complaint, advised the Complainant to contact the QHRC if she was dissatisfied with the outcome.

• [144] For these reasons, I do not accept the Complainant's explanation for the delay being that she followed the Policy.

• [145] Lastly, the Complainant relevantly submits (footnote omitted):

1. If the complaint was made outside of the 12-month statutory timeframe, another explanation for the delay is the independent external investigation by Dr Brooks. In Noble v Whitelock & Ors, O'Connor VP accepted that the Applicant should not be denied out of time aspects of the complaint because they had perused various forms of redress. That I exhausted internal processes as a method of resolving the matter should not prevent the Commission from exercising discretion under s 175(2) of the AD Act.

• [146] In her oral submissions, the Complainant submitted that:

• the Respondent failed to address concerns she raised on 27 and 30 August 2021, and on 27 December 2021, about Ms Hunter's assessment of her 9 June 2021 complaint;

• on 20 December 2021, Ms Libby Gregoric '...was instructed to action' her concerns as well as workplace health and safety concerns which she (Ms Gregoric) failed to do;

• this left an almost 12-month delay when she made contact with Ms Hunter again to follow up Ms Gregoric;

• the Respondent knew she raised concerns in August and December 2021 about Ms Hunter's assessment of her formal complaint because Ms Morgan tried to address them in correspondence in August 2022; and

• documents released under Right to Information Act 2009 ('RTI Act') requests show that Ms Morgan was being forwarded all correspondence between herself and Ms Hunter between August and December 2021, which meant she (Ms Morgan) had all the factual information about the formal complaint and her concerns about it before August 2022 when Ms Morgan engaged Dr Brooks as an external investigator.[119]

• [147] The Respondent submits, to the extent the Complainant says the explanation for the delay was because she was waiting for the outcome of Dr Brooks' investigation or waiting for access to Dr Brooks' report, that does not explain the delay in lodging her QHRC complaint within the time limitation in that there is nothing inconsistent in lodging a complaint with the QHRC while awaiting the outcome of the investigation.[120]

• [148] I am not persuaded that this explanation, advanced by the Complainant for her delay in making her complaint to the QHRC, is acceptable. This is for two reasons.

• [149] First, the facts of the present case are different to that in Noble. In the present case, none of the complaints made by the Complainant were made within time. Those were not the facts in Noble.

• [150] Secondly, I accept the Respondent's submissions that there is nothing that prevented the Complainant making her complaint to the QHRC, within the time limitation, whilst waiting on the outcome of Dr Brooks' investigation. It is simply not plausible, when the Complainant clearly knew of her ability to make a complaint to the QHRC, that she did not do so because Dr Brooks had not completed her investigation. What is more plausible is that the Complainant, having earlier made the deliberate decision not to make a complaint to the QHRC, only made her decision to make such a complaint when Dr Brooks reported that her complaint of unlawful sex discrimination was not made out.

• [151] For these reasons, I do not accept the Complainant's explanation for the delay being Dr Brooks' investigation.

• [152] For these reasons, I am not persuaded that the five different explanations, given by the Complainant for her delay, are acceptable.

• [153] Having regard to all the reasons that I have set out above, I accept the Respondent's ultimate submission that the Complainant's delay is not explained and that it can be inferred that she made a conscious decision not to pursue a complaint to the QHRC after she was informed of the QHRC process.

• [154] By Ms Hunter's letter to her dated 27 August 2021, the Complainant was expressly advised how she could contact the QHRC if she was dissatisfied with the response to her 9 June 2021 complaint.

• [155] It was only after the Complainant received the outcome of Dr Brooks' investigation, being that her complaint of unlawful sex discrimination was not substantiated, that the Complainant then made the decision to make a complaint to the QHRC.

• [156] I find that these are the reasons the Complainant made her complaint to the QHRC on the date that she did.

Prejudice to the Respondent should the discretion be exercised in the Complainant's favour

• the length of the delay itself gives rise to a general presumption of prejudice;[121]

• there is a real and substantial risk of prejudice to it if the discretion is exercised in favour of the Complainant given that:

• - the delay in this case is significant;
• - the Complainant has named a number of people who are likely to be called as witnesses, including those who the Complainant says undertook the same work as her in the Strategy Unit (being the actual comparators), and, or in the alternative, those who managed and directed work within the Strategy Unit;
• - those witnesses will be required to recall events and conversations and work tasks which would have occurred potentially more than seven years ago, on the assumption any hearing takes place later this year;
• - during the four year period in question, namely, March 2018 to January 2022 there was, naturally, a turnover of staff members employed in the Office of the Premier and therefore there is likely to be a significant number of comparators;
• - none of the people named are employed by it (the Respondent), and for this reason and the reasons it outlines later about the Ministerial Records Policy, it may not be able to access records or documents relevant to the allegations to assist in preparing evidence; and
• - to the extent evidence will be required about work tasks, there is a tangible risk that the witnesses' memories of these, and any related conversations, will have faded and that certain details will be forgotten which will have a significant impact on the ability of it to defend the allegations and to properly and completely identify the relevant evidence.[122]
• [158] The Respondent further submits that there is a legal impediment to its access to relevant documents following on from the formation of the new State government as a consequence of the 2024 Queensland State Election. The Respondent submits that in accordance with the Ministerial Records Policy,[123] the Queensland State Archives has custody of ministerial records within the period of time relevant to the allegations.[124] In the course of oral argument, I was taken to certain provisions of the Ministerial Records Policy, relevantly:

Transfer of ministerial records to Queensland State Archives

Ministerial records identified as permanent by the State Archivist in a retention and disposal schedule, or other disposal authorisation must be transferred to the Queensland State Archives.

They can be transferred at any time during a Minister's term of office but must be transferred on a change of Minister or government.[125]

Following transfer to Queensland State Archives, ministerial records have a restricted access period of 30 years after the date of the last action on the record.

Anyone seeking access to ministerial records held in the custody of Queensland State Archives during the 30 year restricted access period must apply under the Right to Information Act 2009 or Information Privacy Act 2009. This includes former Ministers (including the Minister who made the records), members of the public and Ministers of a different party.[126]

• [159] As a consequence of the above, the Respondent submits that it will be required to apply for access under the RTI Act and individuals may be required to apply for access under the RTI Act or the Information Privacy Act 2009 ('the IP Act'); and that there is otherwise no ability to access a ministerial record under the Public Records Act 2023 while it is in a restricted access period.[127]

• the only relevant records which are retained by it are the personnel files of Ministerial staff members, as these are not ministerial records and are in the possession and control of the Department;

• as a result, there is a real risk that contemporaneous records relevant to work duties and communications are not able to be accessed by it, and could not be used in the preparation of witness evidence;

• as a consequence of the foregoing, it will be significantly prejudiced if the complaint is accepted out of time in that the passage of time has significantly degraded the evidence available to it in order to defend the allegations; and

• if the proceedings are not dismissed, it will be denied the freedom from liability which the statutory time limit affords.[128]

• [161] In oral submissions, the Respondent further submitted:

• given that the Complainant's claim alleges employment discrimination in respect of remuneration, there is a likelihood that it will need to descend into a day by day analysis of the actual work performed by the Complainant and by the male employee comparators to which she refers;[129]

• the only way for that to be forensically examined is to literally conduct a day by day, week by week consideration of what work was being done, which would, in the addition to oral evidence to be given by the relevant individuals, require access to documentation;[130] and

• as a consequence of the Ministerial Records Policy (discussed above), any person seeking access to those documents would need to apply under the RTI Act or IP Act, if access to the relevant documentation was required;[131] and

• therefore the present case is a '...far more complicated exercise' than if it was the case of an officer of the public service, who works in a government department, seeking access to records, emails, policy documents and correspondence in respect of the type of work being performed by an individual.[132]

• [162] The Complainant submits that while a delay does give rise to a presumption of prejudice, in the circumstances of the present case, the Respondent is not materially or irreparably prejudiced.[133]

• [163] In support of the above submission, the Complainant points to the following matters:

• the Respondent has been on notice about her '...complaint and concerns throughout the entire matter' which she submits is a relevant consideration;[134]

• the Respondent did not raise concerns about prejudice, witnesses' recall or lapse of time when Dr Brooks conducted her investigation in 2022 and the evidence collected by Dr Brooks would be of assistance to the Respondent at the hearing before this Commission,[135] including transcripts with witnesses;[136] and

• any prejudice to the Respondent can be mitigated by retaining access to the witnesses' email and correspondence records such that the Respondent is not irreparably prejudiced.[137]

• [164] In oral submissions, the Complainant submitted:

• the Respondent would not be irreparably prejudiced in that it retained access to documents including witness statements and it owns all the documents including the report prepared by Dr Brooks and Ms Hunter's assessment, which are departmental records and are not ministerial records such that the Ministerial Records Policy would not apply;[138] and

• even if there were documents that were subject to the Ministerial Records Policy, an attendance notice to produce would be another way that any ministerial records could be obtained from the Queensland State Archivist if required.[139]

• [165] Exhibit 1 was an email from the Senior Reference Archivist of the Queensland State Archives, dated 21 March 2025, which was to the effect that the Queensland State Archives would respond to a legal requirement for information or documentation depending upon what is sought, and that it would seek to comply with any competent legal process.

• [166] In oral submissions in reply, the Respondent submitted that while the Queensland State Archives would do what it would have to do in any event, namely, comply with any competent legal process, its position, as articulated in Exhibit 1, says nothing as to the potential complications that might still arise in respect of a notice to produce served upon the Queensland State Archives in respect of ministerial documents.[140]

• [167] For the reasons I give below in paragraphs [182] to [184], both parties would have to put on detailed evidence about the work the Complainant performed compared to the work performed by the comparators as nominated by the Complainant and the work performed by the comparators as nominated by the Respondent.

• [168] The Complainant's case is that she was the subject of unlawful sex discrimination, in respect of her remuneration, between 7 March 2018 and 10 January 2022. Because of the alleged facts upon which the Complainant bases her complaint, the delay in the complaint being made to the QHRC is between four years and four months, and six months.

• [169] At the outer end, the delay is a very significant delay. I accept that the witnesses to be called by the Respondent will have to recall, in some detail, what work they did in their positions, or potentially the work others did in their positions (including that of the Complainant), going back to March 2018. While it may be easier for witnesses to recount the work they and others performed at the latter end of the delay, there is still a tangible prejudice to the Respondent. This is because its witnesses will have to give such evidence going back to March 2018. I have not been provided with the evidence collected by Dr Brooks, including transcripts with witnesses, as referred to by the Complainant in her submissions. I assume that there are documents, including emails, from which relevant witnesses can refresh their memories. Even so, those witnesses, in some detail, will still have to test their memories about the work they and others performed. The time frame goes back to March 2018.

• [170] I do not accept the prejudice that the Respondent says it will suffer as a consequence of the operation of the Ministerial Records Policy. While it may be a more complicated exercise to obtain any relevant documents from the Queensland State Archives, compared to the case if the relevant employees were not employed under the MOOHS Act, on the evidence before me, the relevant documents would still be available.

Prejudice to the Complainant should the discretion not be exercised in the Complainant's favour

• [171] The Respondent relevantly submits that the prejudice to the Respondent outweighs the obvious prejudice to the Complainant if the discretion is not exercised in her favour. This is said to be the case because:

• the Complainant should have made a complaint to the QHRC after she had the necessary knowledge of all the material factual elements, and after she was advised that if she was dissatisfied with the Department's investigation, she could make a complaint to the QHRC and, in doing so, would not have breached any duty of confidentiality;

• the Complainant provides no explanation for the delay between 27 August 2021 - when she received the findings of the Departmental investigation - and advising the Department, on 1 August 2022, that she was not satisfied with the Department's investigation;

• the Complainant's obligation to make a complaint within the prescribed time limit is not abrogated by her impression that the Department would assist her by continuing investigations and any prejudice to her arises out of her apparent deliberate decision not to make a complaint to the QHRC; and

• any final order the Commission could make in respect of the complaint is in damages given the change of government and the fact that the Complainant was employed as an Advisor in the former Premier's Office.[141]

• [172] The Complainant submitted that the prejudice she would suffer, if the discretion is not exercised in her favour, is that her complaint would not be heard and determined by the Commission at all because no part of her complaint would be within the one-year timeframe.[142]

• [173] The prejudice that the Complainant would suffer, if the discretion was not exercised in her favour, is obvious.

• [174] The whole of the Complainant's complaint was made out of time. If the discretion is not exercised in the Complainant's favour, then the whole of her complaint would be dismissed.

Whether there is a lack of merit to the complaint

• [175] The Respondent submits that the Complainant's complaint, that she was the subject of less favourable treatment because of her sex, is misconceived. The Respondent contends that the Complainant was offered, and accepted, a position classified at the AO5 level and that the bare assertion that her male colleagues undertook the same duties in the same circumstances is not supported by the documentary evidence. The documentary evidence is said to be the contracts of employment signed by the other male employees, named by the Complainant, which included duty statements different to that of the Complainant.[143]

• [176] The Respondent then submitted that the male colleagues she identifies as actual comparators are not appropriate because they occupied more senior roles to the Complainant, had more relevant experience and did not undertake the same duties as her.[144] The Respondent further submitted that the more appropriate actual comparator was Mr Joseph Kaiser who was employed in the Office of the Premier from 29 May 2019, who had identical duties to that of the Complainant, was initially paid less than the Complainant, but was then promoted to the AO5 level.[145]

• [177] The Complainant relevantly submits that her complaint is not frivolous and that at a hearing, evidence would be presented that:

[M]yself, and three other women were treated less favourably in remuneration than six other males who were all employed in the same work doing the same work at the same or a similar level.[146]

• [178] In oral submissions, the Respondent submitted that the Commission is not required and ought not conduct '...a mini trial in respect of the merits.'[147] The Respondent went on to submit that:

• given the Complainant and others were offered and accepted roles (in the Complainant's case, a position at classification AO5 and, in the case of others, positions at higher classifications), the Complainant would have a very difficult task demonstrating that there has been discrimination on the basis of gender; and

• the only way that the Complainant would be able to succeed, notwithstanding the different contracts and the role descriptions, would be to conduct a detailed comparison of the work being undertaken, that she was required to perform over the entirety of the four-year period, with that performed by the male employees.[148]

• [179] In oral submissions, the Complainant submitted that:

When addressing whether the complaint has merit, the respondent in their application noted that Mr Kenny, Mr Coates and Mr Milroy signed a different contract to myself. The test is surely what duties we were performing and whether we were performing them at the same or a similar level, not what contract was signed. We've signed different contracts but performed the same duties at a same or similar level demonstrates the less favourable treatment. The respondent in their affidavit attached to their response to the application to strike out did not attach Mr Isaac Cavanagh or Mr Christopher Moore's contracts. They were paid at an AO6 classification and would've signed the same contract as me on a higher pay classification.

The respondent discusses Mr Joseph Kaiser being the most appropriate comparator. Mr Kaiser was specifically brought in as an assistant advisor with lesser responsibilities on an AO4 wage. The respondent will also know that, when he was appointed to an AO5 pay classification, this was outside the work unit to the logistics and support work unit in the office of the Premier. Mr Evan Moorehead, our reporting superior until May 2019 also confirmed that Mr Kaiser would be coming in as an assistant advisor, not an advisor and would have lesser responsibilities.[149]

• [180] Where the merits of a complaint are discernible, they may be relevant in respect of whether the discretion contained in s 175(2) of the AD Act should be exercised.[150]

• [181] The question is whether, on the material currently before me, I am in a position to make an assessment of the lack of merit of the Complainant's complaint.

• [182] There is force in the parties' submissions about the resolution of the Complainant's allegations having to be undertaken upon a detailed comparison of the duties the Complainant performed against those of the actual comparators.

• [183] Both parties accept that they would have to put on evidence about the work the Complainant performed and the work performed by other relevant comparators. The comparators would be those as nominated by the Complainant[151] and those as nominated by the Respondent.[152] Both parties accept that the evidence would have to be detailed. I accept that, as described by the Respondent, the evidence to be led would have to be a '...blow-by-blow' or '...day-by-day, week-by week' consideration of the work being undertaken by various employees over a four year period. [153]

• [184] Indeed, the Complainant recognised this in her complaint to the QHRC. One of the attachments to the Complainant's QHRC complaint was a three page document headed 'DOCUMENT OUTLINING DAY-TO-DAY DUTIES OF STRATEGY TEAM MEMBERS AGAINST MYSELF.' The document then made a comparison of the Complainant's day-to-day responsibilities and tasks compared to those of four male persons who worked in the same team.

• [185] While the contracts of employment and duty statements of the nominated employees (including the Complainant) are before me,[154] I presently cannot make any real assessment of the merits of the Complainant's case. I cannot do so in the absence of tested evidence from the Complainant, the actual comparators and other witnesses who could give relevant evidence, and in the absence of all relevant documentary evidence, going to a comparison of the work the Complainant actually performed and the work actually performed by other relevant male employees.

• [186] For these reasons, I am unable to discern the merits of the Complainant's complaint. Certainly, I am unable to conclude that there is a lack of merit to the Complainant's complaint.

• [187] Having regard to my conclusions about the relevant considerations addressed by the parties, I weigh those considerations in the following manner.

• [188] The delay by the Complainant, in making her complaint to the QHRC, is between four years and four months, and six months. Given the nature of the Complainant's complaint, and the period of time over which she complains she was the subject of unlawful sex discrimination in respect of her remuneration, the delay of four years and four months is a very significant delay. The shorter length of the delay, of six months, is a significant delay having regard to the entire period of time over which the contravention is alleged to have occurred.

• [189] Further, of the five explanations given by the Complainant for her delay in making her complaint , none of them are acceptable. For the reasons I have given, I find that at least between 27 August 2021 and 13 July 2023, the Complainant made the deliberate decision not to try to resolve her complaint of unlawful sex discrimination, in respect of her remuneration, by making a complaint to the QHRC; and that she only decided to make a complaint to the QHRC upon being advised of the outcome of Dr Brooks' investigation.

• [190] I accept that there will be some prejudice to the Respondent. Given the way that the evidence would have to be marshalled up in a case such as this, namely, evidence going to a detailed comparison of the work performed by the Complainant with the work performed by the relevant comparators, between 2018 and 2022, the Respondent would require its witnesses to stretch their memories back over that period of time as to the work that they and others performed, and the work that the Complainant performed. However, I do not find that the Respondent would be prejudiced, as a consequence of the operation of the Ministerial Records Policy, in respect of its documentary case_._

• [191] There will be an obvious prejudice to the Complainant. If the discretion, pursuant to s 175(2) of the AD Act is not exercised in the Complainant's favour, her entire complaint will be dismissed. This is because of the fact that not one aspect of her complaint was made within the statutory limitation period.

• [192] Finally, there is not sufficient evidence before me to form the view that the Complainant's complaint lacks merit.

• [193] In my view, the considerations that carry the most weight are the first three.

• [194] The delay in making the complaint, at its longest of four years and four months, is very significant. Further, on the evidence before me, the Complainant made the deliberate decision not to make her complaint to the QHRC until 13 July 2023 despite being advised by Ms Hunter, on 27 August 2021, that she could approach the QHRC if she was dissatisfied with the outcome of her 9 June complaint. Because of the Complainant's delay, there is a real prejudice to the Respondent in respect of its witnesses having to give a detailed account of the work the Complainant performed, and the work the male comparators performed, going back to 2018.

• [195] On the balance of fairness between the parties, there is an unfairness to the Respondent which makes it not reasonable to deal with the Complainant's complaint. The unfairness arises due to the length of the delay by the Complainant in making her complaint to the QHRC, the fact that the Complainant made the deliberate decision not to make a complaint to the QHRC, about the alleged sex discrimination, until 13 July 2023, and the particular prejudice to the Respondent I have identified. The length of the delay, and the particular prejudice to the Respondent I have identified, are directly connected to the fact, as I have found, that the Complainant made the deliberate decision not to complain to the QHRC until 13 July 2023 despite knowing of her ability to do so from at least 27 August 2021.

• [196] For these reasons, these first three considerations outweigh the prejudice to the Complainant and the absence of a lack of merit to the Complainant's complaint.

• [197] I find that, on the balance of fairness between the parties, it is not reasonable to deal with the Complainant's complaint.

• [198] For the reasons I have given, the Complainant's complaint was made to the QHRC more than one year after the alleged contravention of the AD Act and, on the balance of fairness between the parties, it is not reasonable for the Commission to deal with the complaint.

• [199] The AD Act is silent on the power of the Commission to dismiss a complaint upon such a conclusion being reached by the Commission.

• [200] Section 174C(1) of the AD Act relevantly provides that if the AD Act confers jurisdiction on the Commission in relation to a complaint, the Commission may exercise the powers conferred on it under the AD Act or under the IR Act.

• [201] Section 451(1) of the IR Act provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions. One of the functions to be performed by the Commission is whether or not to exercise the discretion conferred by s 175(2) of the AD Act.

• [202] In the circumstances where the Commission decides not to exercise the discretion conferred on it pursuant to s 175(2) of the AD Act, a necessary power, for the performance of that function, is to dismiss a complaint.[155]

• [203] For these reasons, pursuant to s 451(1) of the IR Act, I will dismiss the Complainant's complaint.

Pursuant to s 451(1) of the Industrial Relations Act 2016, the Complainant's complaint made to the Queensland Human Rights Commission on 13 July 2023, as referred to the Queensland Industrial Relations Commission on 29 July 2024 pursuant to s 166 of the Anti-Discrimination Act 1991, is dismissed.

[1] [2025] QIRC 034.

[2] The written submissions of the State of Queensland filed on 10 April 2025 ('the Respondent's submissions'), para. 8.

[4] The Respondent's submissions, para. 3, citing Noble v Whitelock & Ors [2020] QIRC 069 ('Noble') [26] (Vice President O'Connor) and T 1-4, ll 27-28.

[5] Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14, 1 (President Sofronoff QC), Wong v Medical Board of Queensland & Ors [2006] QADT 41, [21]-[22] (Member Boddice) and Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4, [12] (Member Rangiah).

[6] The Complainant's written complaint to the Queensland Human Rights Commission made on 13 July 2023, page 2/4.

[10] The Complainant's complaint to the Director-General of the Department, dated 9 June 2021, is contained in the affidavit of Ms Sean Casey filed on 10 April 2025 ('Ms Casey's affidavit'), Exhibit C.

[12] Wong v Medical Board of Queensland & Ors [2006] QADT 41 ('Wong') , [25]-[30], albeit by way of reference, in that case, to the complainant's points of claim.

[13] The Complainant's statement of facts and contentions filed on 7 March 2025 ('the Complainant's contentions'), paras. 3-4 and 8.

[14] The Complainant's contentions, para. 9.

[15] The Complainant's contentions, para. 11.

[16] The Complainant's contentions, para. 13.

[17] The Complainant's contentions, para. 14.

[18] The Complainant's contentions, para. 17.

[19] The Complainant's contentions, para. 18.

[20] The Complainant's contentions, paras. 20-23.

[21] The Complainant's contentions, paras. 24-27.

[22] The Complainant's contentions, paras. 28-29.

[23] The Complainant's contentions, paras. 32-33.

[24] The Complainant's contentions, paras. 35-36.

[25] The Complainant's contentions, paras. 37 and 39.

[26] The Complainant's contentions, para. 40.

[27] The Complainant's contentions, paras. 48 and 50.

[28] The Complainant's contentions, paras. 52-53.

[29] The Complainant's contentions, paras. 54-55.

[30] The Complainant's contentions, para. 56.

[31] By virtue of s 11(c) of the Ministerial and Other Office Holder Staff Act 2010, a person employed as a staff member under that Act '...is an employee of the State.'

[32] The Complainant's contentions, para. 58.

[33] The Respondent's submissions, paras. 6-9.

[35] The written submissions of the Complainant filed on 30 April 2025 ('the Complainant's submissions'), para. 3 and in oral submissions, T 1-11, l 27 to T 1-12, l 5.

[36] The written submissions in reply of the State of Queensland filed on 2 May 2025 ('the Respondent's reply submissions'), paras. 7-10.

[38] The Complainant's submissions, para. 4 and in oral submissions, T 1-12, ll 9-36.

[39] The Complainant's submissions, para. 5.

[41] The Respondent's reply submissions, para. 11.

[43] The Complainant's contentions, paras. 6 -18.

[44] The Complainant's contentions, paras. 18 and 28-42.

[45] The Respondent's reply submissions, para. 9.

[46] The Complainant's contentions, para. 67 a.

[47] Ms Casey's affidavit, Exhibit M and the Complainant's submissions, para. 4.

[48] Section 134 (1) of the Anti-Discrimination Act 1991 provides:

(1) Any of the following people may complain to the commissioner about an alleged contravention of the Act-

(a) a person who was subjected to the alleged contravention;

(c) a person authorised in writing by the commissioner to act on behalf of a person who was subjected to the alleged contravention and who is unable to make or authorise a complaint.

See also section 146 in relation to representative complaints.

[49] The Complainant's contentions, para. 18.

[50] McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4, 24-26 (Member Keim).

[51] Wong (n 12) [32] and Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4, [13].

[52] See Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14, 5-6, Wong (n 12), [50] and Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4, [41]-[42].

[53] The Respondent's submissions, para. 10.

[54] The Respondent's submissions, para. 11, citing Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120, [30] (Deputy President Merrell).

[55] [2017] QCAT 132 ('Bond').

[57] [1997] QADT 1 ('Hopper'), 50 (President Atkinson).

[58] The Complainant's submissions, paras. 7-10. In fact, the Complainant made her complaint to the Queensland Human Rights Commission on 13 July 2023.

[59] See the Respondent's submissions, para. 6 d and the Complainant's submissions, para. 4.

[61] Hopper (n 57), 50. In that case, President Atkinson relevantly stated:

In determining whether or not it is fair to the parties that this complaint should be heard, I take note of the fact that the events in question happened over a period of two years, and during that time Ms Hopper was still at the same workplace and hopeful that the discrimination and sexual harassment would end. In the circumstances, it is reasonable that she made no complaint until she left the employment of Mt Isa Mines, and since MIM was able to call Christian Manning, who was the apparent perpetrator of the first contravention of the Act, it has not been put to any great disadvantage.

[62] The Respondent's submissions, para. 13.

[63] The Respondent's submissions, para. 14.

[64] The Respondent's submissions, para. 15.

[65] The Respondent's submissions, para. 16 a.

[66] The Respondent's submissions, para. 16 a.

[67] The Respondent's submissions, para. 16 b.

[68] The Respondent's submissions, para. 16 c.

[70] The Respondent's submissions, para. 16 d.

[74] Ms Casey's affidavit, Exhibit D, fourth and fifth pages.

[76] Ms Casey's affidavit, Exhibit E, third page.

[78] Ms Casey's affidavit, Exhibit F, second and third pages.

[79] Ms Casey's affidavit, Exhibit F, first page.

[80] The Respondent's submissions, para. 17.

[82] The Complainant's submissions, para. 14. It is not in dispute that the Complainant ceased all employment with the Respondent, under the Ministerial and Other Office Holder Staff Act 2010, as of 16 February 2024.

[83] The Complainant's submissions, paras. 14-15.

[84] The Complainant's submissions, para. 16.

[85] The Complainant's submissions, para. 16.

[86] The Complainant's submissions, para. 16 a.

[87] The Complainant's submissions, para. 16 b.

[88] The Complainant's submissions, para. 16 c.

[89] The Complainant's submissions, para. 16 d.

[90] The Complainant's submissions, para. 17.

[92] The Respondent's reply submissions, para. 15.

[97] Ms Casey's affidavit, Exhibits I and K.

[100] The Complainant's submissions, para. 13 and Ms Casey's affidavit, Exhibit M.

[101] Ms Casey's affidavit, Exhibit C. In the first paragraph of her 9 June 2021 complaint, the Complainant wrote:

I write to make a formal complaint under the Discrimination, Bullying and Sexual Harassment in the Workplace Department of Premier and Cabinet Policy.

Even though the actual title of the Policy was: 'Discrimination, Bullying and Sexual Harassment in the Workplace' (see Ms Casey's affidavit, Exhibit D), there was no dispute that it was this Policy upon which the Complainant made her complaint to the Director-General of the Department of Premier and Cabinet dated 9 June 2021.

[102] Ms Casey's affidavit, Exhibit C, first paragraph.

[103] The Complainant's submissions, para. 22.

[104] The Complainant's submissions, para. 22.

[105] The Complainant's submissions, para. 23.

[107] The Respondent's reply submissions, para. 21.

[108] T 1-8, ll 21-25. In paragraph 30 of her submissions, the Complainant submitted:

1. I was so committed to following this independent internal process I took the matter to the QIRC on the 12 May 2023 in Matter D/2023/39 before Commissioner Pidgeon in an effort to obtain the original report by Dr Brooks before the supplementary investigation was completed in an effort to resolve the matter through the internal grievance resolution pathway under the policy. The matter was ultimately withdrawn (by myself). This demonstrates that I was only able to be singularly focused on resolving the internal process.

[111] Ms Casey's affidavit, Exhibit M, first page.

[112] The Complainant's submissions, para. 24.

[113] The Complainant's submissions, paras. 25-28.

[114] [2021] QIRC 289, [35].

[115] The Complainant's submissions, para. 29.

[117] The Respondent's reply submissions, para. 22.

[120] The Respondent's reply submissions, para. 23.

[121] The Respondent's submissions, para. 18 citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 556 (McHugh J). McHugh J stated, in respect of the facts of that case: 'Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice.'

[122] The Respondent's submissions, para. 18 a.-18 e.

[123] Ms Casey's affidavit, Exhibit O, being the Ministerial Records Policy applicable from December 2024.

[124] The Respondent's submissions, para. 19 a.-19 b.

[125] Ms Casey's affidavit, Exhibit O, page 7.

[126] Ms Casey's affidavit, Exhibit O, page 8.

[127] The Respondent's submissions, para. 19 c.

[128] The Respondent's submissions, paras. 19 d.-19 e. and 21.

[133] The Complainant's submissions, para. 36.

[134] Citing as authority for that proposition Bond (n 55), [37] and Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283, 287 (Fisher J).

[135] The Complainant's submissions, paras. 39-40.

[136] The Complainant's submissions, para. 43.

[137] The Complainant's submissions, para. 42.

[141] The Respondent's submissions, para. 22.

[142] The Complainant's submissions, para. 35.

[143] The Respondent's submissions, paras. 23-25 a.

[144] The Respondent's submissions, para. 27.

[145] The Respondent's submissions, para. 25 b.

[146] The Complainant's submissions, para. 45.

[150] Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4, [39]-[40] and see Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120, [78].

[151] The Complainant's contentions, paras. 9-27.

[152] The Respondent's submissions, paras. 26-29. The Respondent was not required to file and serve its statement of facts and contentions as a consequence of its present application.

[153] T 1-9, ll 18-19 and T 1-10, ll 43-45.

[154] Ms Casey's affidavit, Exhibits B, P, Q, R, S and T.

[155] As was done in Wong (n 12), [50].