The applicant's inability to comply in this context must be some incapacity to comply, not merely an unwillingness or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element.[1]
It is necessary to consider whether, in complying or being subjected to with the subject requirement, the applicant experienced either some, or as some cases would suggest, some serious disadvantage or hardship.[2] What is relevant is the practical effect upon them, as a person with a particular attribute, by reason of the imposition of the condition or requirement. That may be demonstrated by reference to the House of Lords decision in Manilla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 which concerned whether a Sikh could not comply with a rule disallowing turbans in class, He could of course not wear a turban but not consistently with his beliefs and customs of his racial group or practically.
[2]
[83] It may be that only an appreciable or more than minimal disadvantage should be sufficient in promoting a human rights compatible interpretation of s l l(l)(a). I need not decide that in this case.
[84] In this case, did the applicant suffer serious disadvantage or hardship in consequence of being deprived of his medication for over five hours?
[85] The respondent submits that the applicant did not experience serious disadvantage or hardship for a number of reasons, but mainly because he had not long before he was first approached by the police at his home, taken his medication.
[86] As I observed in Hope v Danianarnie Pty Ltd[2025] QCAT 275, the meaning of that phrase 'does not or is not able to comply' has been authoritatively considered many times. For example, Davies JA (with whom Pincus and Thomas JJA agreed) in JM v QFG[3] said he would construe the words 'does not...comply' as 'referring to the possession of a precluding objective attribute such as race or age or height' and the words 'is not able to comply' 'to include an attribute of choice such as religion or political belief or trade union activity or lawful sexual activity which precludes a person while he or she maintains it.'
[87] However, Sackville J in Australian Medical Council v Wilson[4] said the following about meaning of the phrase 'does not comply':
[3]
It was submitted that the phrase "does not comply" refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words .... should be given a restrictive gloss. .......
More particularly, a restrictive construction runs counter to the fundamental objective [the statutory provision] seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.
[4]
[88] I respectfully agree that provisions attacking indirect discrimination aim to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common, such as the need to periodically use medication to manage impairments.
[89] Reference can also be made to the judgment of the Full Court of the Federal Court of Australia in Hurst v State of Queensland.[5] That case was an appeal from a first instance judgment in which the trial judge had found that the complainant could comply with the relevant requirement, term, or condition because he accepted evidence that she could 'cope' with the circumstances established by the condition imposed. In upholding the appeal, the joint judgment said that the first instance Judge had been led to focus on the wrong issues and had failed to address the real issue which was whether, by reason of the requirement or condition that was being imposed, the complainant suffered serious disadvantage.
[90] Their Honours found at [134] that:
[5]
In our view, it is sufficient to satisfy [the requirement that the person "is not able to comply"] that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.
[6]
[91] I find that a person with his disabilities would have suffered considerable anxiety and distress and some pain and discomfort and inconvenience that night for the five and a half hours he was in police custody and that this was serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether he could 'cope' with the requirement or condition. I find that in fact he could not 'cope' in the relevant sense because in consequence he suffered considerable anxiety, distress, some pain, discomfort and inconvenience.
[7]
Was the term or condition imposed a reasonable one?
[8]
[92] The respondent submits that the imposition of these terms was reasonable. It refers to no authority in support of this contention.
[93] It submits that a police officer, by the very nature of the work, investigates offences such as unlawful possession of dangerous drugs. Officer Canning accepted that, at the time the applicant went into the garage, she could not verify what the applicant was saying and could not let the applicant consume something where she did not know what it was. In my view whether she verified it or not, what she had already been told by the applicant should have been enough for her to understand that he was about to use his prescribed medical cannabis. Even if I have concluded otherwise, that did not make what happened after that reasonable.
[94] The respondent further submits that whilst at the house, the applicant told officer Canning that he had consumed the medicinal cannabis 30 minutes prior and officer Canning did not believe that the applicant would be in police custody for very long. She is not a medical practitioner. She was not entitled reasonably to form a judgement about how regularly he might need to use it. Nor was there any reasonable basis to believe he might only be in police custody for a short time.
[95] The respondent submits that the video footage shows that the applicant picked up the pre-prepared water pipe and lighter within a short period of time, it is not unreasonable that officer Canning acted to prevent the applicant from smoking the waterpipe quickly. I reject that contention as being without substance, but even if I have concluded otherwise, that did not make what happened after that reasonable.
[96] The respondent submits that prior to the applicant providing information that the medication he intended to use was medicinal cannabis, officer Canning expressed her concerns regarding the medication, namely, whether it would impact his cognitive function. The respondent submits that officers Tomuli and Canning prevented the applicant from accessing his medication because of concerns about the contents of the water pipe and, also, concern for his cognitive ability to respond to questions by police and participate in an interview should he elect to do so, if he took such medication.
[97] I also reject that submission. Police, acting reasonably, have no expertise to and cannot decide such matters. Were it otherwise, we would have police deciding when any suspect can and cannot take their prescribed medication. I have already found that officer Canning was, in fact, unaware that medicinal cannabis could be prescribed in dried or weed form and that it might be legitimate medicine. As I said, that largely explains why she reacted as she did that night. I have noted earlier that she said in her statement that she took it from him because she had been unable to confirm it was medicinal cannabis and says that it would potentially impact his cognitive function for an interview. I did not accept that evidence because he had already told her that he smoked weed all day long every day and asked if they understood that it was medicinal marijuana. I have also found that even if she did take it from him for that reason, it does not adequately explain why she then kept it from him once she could see what it was and the later things he told her.
[98] The respondent submits that imposing a term that he participate in a record of interview in the circumstances was reasonable. It says that is because there was a prima facie case against the applicant, and it is a procedural requirement to provide the applicant with the opportunity to comment or refuse to comment on the allegations against them under rights and cautions. It says such measure ensures the applicant is afforded procedural fairness and natural justice and he was told his rights and cautions several times throughout the process and he told police during the interview that he already had the medicinal cannabis an hour before which, on the evidence, is the prescribed frequency of the dose that he was required to have for the day.
[99] I also reject that submission. To provide the applicant with the opportunity to comment or refuse to comment on the allegations against him under rights and cautions did not reasonably require him to be deprived of his medication for as long as he was in police custody that night, whether or not he had taken it earlier that night. He could have been given that same opportunity and permitted to use his medication. He was materially disadvantaged in his dealings with the police, and that would not have occurred if he had been permitted his medication. He was in custody for some five and a half hours after he last took his medication, not for one hour after.
[100] The applicant has not addressed the issue of how his identified human rights were infringed by this conduct. In other words, the applicant has not addressed how the respondent has breached the applicant's human rights to recognition and equality before the law pursuant to s 15 of the HR Act; protection from torture and cruel, inhuman, or degrading treatment pursuant to s 17 of the HR Act; privacy and reputation pursuant to s 25 of the HR Act; liberty and security of person pursuant to s 29 of the HR Act; and rights in criminal proceedings pursuant to s 32 of the HR Act.
[101] Section 37 of the HR Act says that every person has the right to access health services without discrimination. Neither party relied upon it, or addressed it. The right to health services is not protected in any other human rights legislation in Australia.
[102] Conceptually he may have been denied humane treatment when deprived of liberty protected by s 30 of the HR Act in being deprived of his medication after being arrested at his home, however in light of my findings that both before and after his arrest he was the subject of discrimination it is not necessary to decide this issue.
[9]
Remedies and compensation for the denial of medication conduct
[10]
[103] Assessing the extent of compensation that should be awarded for having exposed the applicant to such discriminatory conduct is no easy task since neither party focused upon how to compensate for the consequences of that limited conduct. The applicant pointed to the consequences for him of what he says were all the things that happened to him that night, including such matters as allegedly denying him the right to a lawyer, unlawfully seizing his phone, and unlawfully entering his home, breaching his privacy and the other complaints of discrimination which I have yet to deal with. He also argues that he was the subject of racial discrimination although there is no case which has been referred here for determination, which involves such a claim.
[104] In some respects, it is like unscrambling an egg to ascertain how being deprived of his medication for that period affected him.
[105] He said in his original complaint that he was in a poor way and called his wife to tell her what happened, she said she tried calling and no one would tell her where he was and she was scared and worried. He made it home via public transport and had his medication which helped a bit but it took a fair few days for the bursitis to settle down again and he now had PTSD and was scared to even go outside or answer the door in fear of the police attacking and hurting him again. This suggests his shoulder pain was his main effect beyond that night.
[106] In his final submissions, he asserted that he has had to increase his medication and is now in fear every time he sees a police officer and that this has affected his family and his ability to enjoy life and to obtain employment.
[107] The applicant's wife gave evidence. She was told by the applicant that he had been released and said that they had refused him warmth and medical treatment and had to use public transport to get home. She said that when he got home, he was shaking. She said that they had to change his medication, which had now gone to $100 per week because of what she described as the PTSD and the 'physical manhandling' he suffered while in custody. Although she was not directly cross-examined about this, it does not appear that she has specifically identified that the deprivation of his medication that night was what led to the need to increase his medication.
[108] There is no medical evidence that he suffered PTSD that night. Moreover, there is no medical evidence to support any of these contentions. As I have said, it is reasonable to infer that a person with his disabilities would have suffered a considerable anxiety and distress and some pain and discomfort and inconvenience that night for the five and a half hours he was in police custody.
[109] I was not taken to any authority in which a comparative situation was encountered whether in discrimination law or, for example, in medical malpractice law where a patient was deprived of the use of needed medication for any period.
[110] In my view, a reasonable award of general compensation for the anxiety, distress, pain, discomfort and inconvenience caused to him that night for the five and a half hours he was in police custody is the sum of $10,000 and I order that the respondent pay him compensation in that amount.
[11]
The denial of an ambulance and medical treatment
[12]
[111] The next issue is the claim that he was denied medical assistance in the watch-house, when the applicant allegedly requested an ambulance because he had begun shaking and thought that he might be entering hypothermia. The applicant contends that he required medical assistance because of a body heat regulation issue and was denied that medical assistance. He gave evidence that his ADHD diagnosis manifests in difficulties with regulating body heat, partially because of rapid weight loss associated with prescribed medications which impeded his ability to self-regulate his body temperature. It may be presumed that the term or condition that he would contend was imposed, with which he could not comply, was that he tolerate being cold to the point of entering hypothermia and not be provided with medical assistance whilst in custody in the watch-house. I have referred to this as the body heat regulation term.
[112] As I have set out earlier his statement contains the following version of this incident:
[13]
Then I was taken to the cells and I requested an ambulance.
I was shaking and I think suffered from some hypothermia.
They left me with no blanket no shoes or socks, the draw string cut from my shorts, freezing and spasming for hours on cold concrete. I was in so much pain I think I blacked out for a bit.
I was snapped conscious when they came to get me. I again asked for medical treatment, they said they were doing the medical stuff now and I was in hope of some relief.
Instead, the medical they were referring to was the DNA they took while I was in no condition to resist or do anything I again begged for help from them and they did ask as they brought me back to the cells, they were told "Na we going to kick him out anyway" as a response.
I was signed out and I asked for help again. They instead of helping mocked me with one officer opening the door for me say" Of ya go mate, go and get your bong on bro!" followed by a mocking "yeeeeeah".
I replied I just want to get home and not be in pain anymore and left.
[14]
[113] The respondent submits that there is no medical evidence to support the contention that the applicant has a body heat regulation condition or that the body heat regulation condition is a characteristic of a protected attribute. It submits that whilst the applicant was rubbing his hands together outside the car at the police station and he requested a jumper at the house, the applicant did not demonstrate signs of being cold in the interview room. Further, it submits that in the car going to the police station, the applicant referred to losing weight, however, did not speak about the allegedly related medical condition. Instead, it submits, he moved on to discuss living in Canada and access to fast food shops.
[114] I have already found that he had ADHD and there is medical evidence to support that diagnosis. He gave evidence that his ADHD diagnosis manifests in difficulties with regulating body heat, partially because of the rapid weight loss he had suffered associated with use of prescribed medications. He did say something about this, consistently with it in fact, in the police car on the way to the station. He told them that when he went to Canada had gained a lot of weight but had lost about 35 kg in the past five months and that was probably why he was feeling the cold. He was certainly showing signs of feeling the cold that night. Whether he told any of the officers at the watch-house that his ADHD diagnosis manifests in difficulties with regulating body heat and that he suffers badly from the cold is, sadly, not something that he dealt with in his evidence. I am unable to find that anyone at the watch-house was aware that he had such an impairment, and if that is the case, they would have no reason to consider whether he should receive any form of accommodation to allow his to be seen by an ambulance officer or some other kind of medical practitioner.
[115] I accept his evidence body that he suffered a body heat regulation condition and that the condition is a characteristic of his impairment of suffering ADHD and the need for medication to treat it.
[116] The real problem with this aspect of the case is that his evidence of having asked for an ambulance or medical treatment is unsupported by any testimony from anyone who dealt with him that night. The police officers called to give evidence did not particularly recall the applicant, except for Senior Constable Trent Wylie.
[117] Officer Wylie was allocated the task of taking the applicant's fingerprints and another constable in the watch-house took his DNA. The fingerprinting took place at around 10:47pm. He said that this was his first shift in the police service. He has what he called a vague recollection of interacting with the applicant for about 10 minutes. He did observe that the applicant had discomfort or pain but did not know what that was in relation to. But he noticed that the applicant was holding his shoulder and complained about the shoulder. He was not screaming or yelling or complaining. The officer saw noting that suggested he should stop taking the fingerprints. Neither the taking of those prints or the DNA sample involved any physicality or force.
[118] Another officer, Celia Jarvis, swore that the cells in the watch house were kept under closed circuit television and that there were periodic checks to monitor the prisoners from the control room and they are usually checked on screen every 30 minutes, with a physical walk around check every hour. She said that if a prisoner was showing signs of being unwell or in pain, the shift supervisor would be notified and if a nurse was on shift, the nurse would be asked to assess them. That would tend to suggest either that the applicant was not freezing and spasming for hours on cold concrete, writhing in pain and yelling in the way he suggested or if he was, he was not being observed from the control room or otherwise when it occurred.
[119] The Shift Supervisor that night, Karolyn, stated that she would have expected to be notified if someone was writhing around and passed out on the floor of a cell. If she had been notified of someone passing out, she would have called an ambulance. She found no entries in the custody logs that related to Mr Harding and certainly none that raised concerns he had been writhing around and had passed out on the floor of a cell.
[120] The applicant also gave differing versions of what he had said on the issue.
[121] Under cross-examination, the applicant gave a confusing answer to a question about what was said to the officers at the watch-house about him having a body heat regulation condition. The evidence was as follows:
[15]
So, in respect of the watch-house, do you recall telling the watch-house officers about a body thermal regulation condition? ---Ah - not specifically. I did state that I needed medical attention and requested warmth.
So, you didn't tell them that you had a thermal regulation condition? ---I did tell them, absolutely, when they were stripping me down, and I told them that I was cold, and this is not fair - um - and they took my shoes. I clearly told them, yes.
But you just said you didn't tell them? ---I said that I may not have used those specific words.
[16]
[122] I accept that he probably told them he was cold. I am unable to find that he told them he had an impairment that led to his suffering the cold badly, or what it was.
[123] His statement asserted that when he was taken to the cells, he requested an ambulance and later again asked for medical treatment. In his original statement of contentions, the applicant contended that he asked a senior person at the desk, and he said, 'don't worry about it, we are getting rid of him now' suggesting this was near the end of the night.
[124] In his statement dated 30 October 2024, the applicant said that he made repeated requests for medical treatment. During cross-examination, the applicant said he 'may' have asked for an ambulance but did ask for medical assistance. He said he passed out 'multiple times, and was writhing around in pain'. He claimed to have said, 'I need help, I need medical assistance, I am freezing, can someone help me please' and was yelling loudly. He said he was rolling around in excruciating pain, passing out, suffering likely hypothermia.
[125] I am unable to find that anyone at the watch-house was aware that his ADHD diagnosis manifests in difficulties with regulating body heat and that he suffers badly from the cold. I have already said that I am unable to find that anyone at the watch-house was aware that he had such an impairment, and they would have no reason to consider whether he should receive any form of accommodation to allow him to be seen by an ambulance officer or some other kind of medical practitioner. I am unable to conclude on the evidence that he passed out 'multiple times, and was writhing around in pain' or that he yelled out that he needed help, and needed medical assistance because he was yelling loudly while in the cell.
[126] It follows that this ground of the complaint is not sustained on the evidence.
[17]
The refusal of a blanket term and what happened on 18 November 2022
[18]
[127] The next issue is the claim that when he was in the watchhouse, when the applicant requested a blanket and clothes to keep him warm while he was in custody, he was refused those even though there were folded blankets visible. There is evidence from officers on duty that night that there were blankets kept at the watch-house.
[128] It may be presumed that the term or condition that he would contend was imposed, with which he could not comply, was that he tolerate being cold to the point of entering hypothermia and not be provided with a blanket whilst in custody in the watch-house when blankets were available.
[129] In response to a question regarding who he had asked for the blanket, and whether he could recall what they looked like, he responded with:
[19]
when you're being tortured and suffering in - thing - they were in a police officer's uniform. Does that help? Um - because picking out something from such a long time ago, specific details like that, all I know was that I was in excruciating pain.
Somebody came past. I believe it was a female the first time. Um - and I asked, and they went, and nothing happened.
And I believe there was another person that maybe was interacted with at that - but again, I was screaming, in pain, asking anybody that I could see that was an officer for medical attention and help, and I received none.
[20]
[130] In cross-examination it was put to him that he didn't ask for a blanket. His answer was:
[21]
Well, actually, sorry, to reclarify: I asked for warmth and for medical aid. I didn't specifically ask for a blanket. I wasn't given that option. I wasn't aware that the blankets existed until afterwards when I mentioned to the people doing that DNA that, "I've been asking to get warmth and, you know, to get medical treatment. There's all these blankets here. Why was not one of them given to me?" And they said, "Oh, we don't know."
And after experiencing torture on a concrete floor, shivering, and falling, and going unconscious for periods of time to then be shown that there was a whole bunch of blankets and every time you said, "Oh, I'm freezing, I need medical aid," Could have been provided and thy weren't. And that was extremely upsetting to me
[22]
[131] Since he did not request and was not refused a blanket, I cannot conclude that the term or condition that he would contend was imposed, with which he could not comply, was that he tolerate being cold to the point of entering hypothermia and not be provided with a blanket whilst in custody in the watch-house when blankets were available was not in face imposed.
[132] It seems to me that his answer to that question to the effect that he asked for warmth and for medical aid not a blanket means that this issue closely corresponds with the previously dealt with issue of his being denied medical assistance and the same problems arise.
[133] It follows that I have already found that I am unable to find that he was screaming in pain. The findings I have made above in relation to his requesting an ambulance and medical assistance inform my findings also on whether he asked for a blanket or for warmth.
[134] I have said that I am unable to find that anyone at the watch-house was aware that he had such an impairment, and they would have no reason to consider whether he should receive a blanket or warmth. I am not persuaded that he was refused this and that it was discriminatory of him to do so.
[135] It follows that this ground of the complaint is also not sustained on the evidence.
[23]
The direct discrimination case-applicable legal principles
[24]
[136] Section 8 of the AD Act extends the term 'discrimination on the basis of an attribute' to, inter alia, direct discrimination based on 'an attribute that a person is presumed to have, or to have had at any time, by the person discriminating'.
[137] Section 10(1) of the AD Act provides that direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Section 10(2) provides that it is not necessary that the person who discriminates considers the treatment is less favourable. Section 10(3) provides that the person's motive for discriminating is irrelevant. Section 10(4) provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
[138] The current test in s 11 of the AD Act involves determining the appropriate comparator group for proportional comparison. This has been shown to be problematic. Under the wording of s 10, the comparator is a person in the same or not materially different circumstances, but without the attribute. The AD Act does not itself use the word comparator.
[139] The comparator is the predominant means of determining causation in Australian discrimination law. The comparator is an actual or hypothetical person who does not have a particular protected attribute (sex, race, disability etc). Courts construct the comparator and are required to place them in similar factual circumstances to the complainant. Then, it is necessary to ask whether the complainant was treated less favourably than the comparator in those circumstances. If the answer is yes, that generally establishes the relevant discrimination (subject to defences). The comparative formula is found in the formulation of 'less favourably' tests in the Sex Discrimination Act 1984 (Cth) (s 5A), the Disability Discrimination Act 1992 (Cth) (s 5) and the Age Discrimination Act 2004 (Cth) (s 14).
[140] As I have identified above, AD Act s 10(4) provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The focus here is on reasons for conduct, not motive or intent.[6]
[141] In Lyons v State of Queensland,[7] it was made clear by the Court of Appeal that in framing the circumstances of a relevant comparator, regard must be had to 'all of the objective features which surround the actual or intended treatment'.
[142] There, the facts were that a Court Deputy Registrar's decision to exclude the appellant's name from the jury panel was held not to have been made on the basis of the appellant's hearing impairment. The Tribunal found that the decision was made because the Deputy Registrar considered that under s 4(3)(l) of the Jury Act1995 (Qld), the appellant was not eligible for jury service.
[143] In the Appeal Tribunal,[8] the applicant appealed against what she contended was the Tribunal Member's failure to conclude that her impairment was a 'substantial reason' for the Deputy Registrar's conduct. That ground, which on its face involved purely a question of fact, was dealt with fairly briefly by the Appeal Tribunal:
[25]
Not determining that the appellant's impairment was a substantial reason for the impugned conduct...
It was a consideration of all of the circumstances and the effect of the interpretation of the Jury Act with respect to the impermissibility of an additional person in the jury room [which] was the reason for the applicant being excused. That conclusion was open to the learned Member, and it is not correct to say, when considering an appropriate comparator, that the sole reason for her exclusion was her hearing impairment...
[26]
[144] The Court of Appeal considered the arguments concerning the choice of comparator and held at [35]-[39]:
[27]
[35] Here, the applicant argued that the Tribunal Member (and presumably also the Appeal Tribunal) erred in formulating the characteristics of the "comparator" for the purpose of s 10(1) by failing to exclude from consideration the need for an interpreter. That amounted to taking into account, contrary to s 10(5), the fact that the applicant would require special services. Consequently, in determining whether direct discrimination had occurred, it was not permissible to take into account the fact that the Deputy Registrar's conduct might have been caused by the requirement that a non- juror not be present in the jury room. The appropriate comparator was a person without the applicant's disability who wished to perform jury service. The applicant sought to distinguish the decision of the High Court in Purvis v New South Wales.
[36] In Purvis, the High Court was considering s 5 of the Disability Discrimination Act 1992 (Cth) in connection with a complaint by the father of an intellectually disabled boy excluded from school for violent behaviour. Section 5(1) of the Disability Discrimination Act, like s 10(1), provided that discrimination occurred where the discriminator treated or proposed to treat the complainant less favourably than he or she would a person without the disability "in circumstances that are the same or are not materially different". Section 5(2) provided that circumstances were:
[28]
"not materially different because of the fact that different accommodation or services may be required by the person with the disability".
[29]
[37] The appellant in Purvis argued that the appropriate comparator was a pupil without the disability of his disturbed behaviour. That was because disability was defined as requiring reference both to the disorder and the resulting behaviour, and because it was necessary to exclude from the circumstances which were the same, or not materially different, all the circumstances constituting the disability. Gummow, Hayne and Heydon JJ, who were part of the majority, made these observations:
[30]
"It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
...
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability."[16]
The question, the majority held, was whether in the same circumstances - including the violent behaviour - a pupil without the boy's disability would have been treated in the same way.
[31]
[38] The applicant argued that Purvis could be distinguished on the basis that s 10(5) referred to the fact that special services might be required as "irrelevant" in determining whether the circumstances were "materially different", whereas in Purvis, s 5(2) of the Disability Discrimination Act merely provided that the need for services did not render the circumstances "materially different". That does not seem to me a compelling basis for distinguishing Purvis; I would read s 5(2) as having precisely the same effect as s 10(5), of rendering the requirement for services irrelevant.
[39] There can be no doubt that the appropriate comparator is a person without the applicant's attribute of deafness or need to communicate through Auslan. But to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred. Here the circumstances in which the Deputy Registrar made her decision were that she was required to apply a law which, at least in her view, precluded the presence of an outsider in the jury room. That was not a question of the applicant's needing a special service: the Registrar did not exclude her because of her need for the assistance of an interpreter but because of the perceived impossibility of an interpreter, as a person extraneous to the jury, being present in the jury room. The Tribunal Member appropriately had regard to that consideration as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing seeking the assistance of another in the jury room.
[32]
[145] That decision was one in which the High Court found on a narrow basis that the conduct in question was not discriminatory:[9]
[33]
[19] The Tribunal found... that the Deputy Registrar's decision to exclude the appellant's name from the jury panel was not made on the basis of the appellant's impairment. The Tribunal found that the decision was made because the Deputy Registrar considered that under s 4(3)(l) of the Jury Act, the appellant was not eligible for jury service: she did not have the capacity to effectively perform the functions of a juror in circumstances in which there is no provision to administer an oath (or affirmation) to a person interpreting for a juror and the Jury Act does not permit a 13th person to be kept together with the jury. The Tribunal found that the Deputy Registrar's understanding of the scope of s 4(3)(l) was incorrect but that this did not affect the Tribunal's conclusion that the appellant had not been subject to less favourable treatment on the basis of her impairment. The Tribunal said that the appropriate comparator was a prospective juror who requested the assistance of another person in the jury room in case the prospective juror did not understand all that was said there.
...
[25] The appellant submits that it is ineluctable that her deafness was the "true basis" or "real reason" for the Deputy Registrar's decision to exclude her from the jury panel. The Tribunal's error, in her submission, was to fail to give effect to s 10(5) of the ADA. The Tribunal was required to treat the appellant's need for Auslan interpretation as irrelevant to the determination of whether she was subjected to less favourable treatment. Given that Auslan interpretation cannot be separated from the person who provides it, the Tribunal erred in selecting as a comparator a hearing person who asked to have another person present to assist him or her during the jury's deliberations.
...
[38] The Deputy Registrar rightly concluded that Queensland law did not permit an Auslan interpreter to assist the appellant while the jury was kept together. It followed that the appellant was incapable of effectively performing the functions of a juror. This conclusion made the appellant ineligible for jury service. A person who is not eligible for jury service is not qualified to serve as a juror. The Deputy Registrar was required to exclude from the jury panel a person not qualified for jury service. The Deputy Registrar was required under Queensland law to exclude the appellant from the jury panel. The exercise of the Deputy Registrar's powers in conformity with the command of the Jury Act did not infringe the ADA's prohibition on unlawful discrimination in the performance of a function or exercise of a power under Queensland law.
[34]
[146] In my view an appropriate comparator is another person who was prescribed medication for an impairment which was not a drug or medication which was commonly regard as an illicit substance and which was not of a character acquired on the street or from a drug dealer, such as cannabis in dried weed form is.
[35]
Factual findings relevant to direct discrimination on the basis of impairment
[36]
[147] The critical factual issue is whether, as the applicant alleges, an officer from the respondent directly discriminated against him, on the basis of his impairments, by making a comment in the watch-house to the effect that the police were not his drug dealers.
[148] It is of significance that this comment was not referred to in his complaint to QHRC. I set out earlier his narrative set out in the complaint which was as follows:
[37]
I was taken to the cells and I requested an ambulance, I was shaking and I think suffered from some hypothermia, they left me with no blanket no shoes or socks the draw string cut from my shorts freezing and spasming for hours on cold concrete. I was in so much pain I think I blacked out for a bit.
I was snapped conscious when they came to get me and again asked for medical treatment, they said they were doing the medical stuff now and I was in hope of some relief. Instead, the medical they were referring to was the DNA they took while I was in no condition to resist or do anything.
I again begged for help from them and they did ask as they brought me back to the cells, they were told "Na we going to kick him out anyway" as a response.
I was signed out and I asked for help again. They instead of helping mocked me with one officer opening the door for me say" Off ya go mate, go and get your bong on bro!" followed by a mocking "yeeeeeah", I replied I just want to get home and not be in pain anymore and left.
I was in a poor way and called my wife to tell her what happened, she said she tried calling and no one would tell her where I was and she was scared and worried. I made it home via public transport and had my medication
[38]
[149] He made no reference there to anyone saying in response to a request for medication that they were not his drug dealers. That seriously undermines his claim that such a thing was said.
[150] In his witness statement filed in the Tribunal he said:
[39]
At the police station I was directly mocked by the officers with comments such as "we are not your drug dealers" in my response to repeated requests for medical assistance and "yeahhhhh Bro, go get your Bong on" by an officer on releasing me.
[40]
[151] This adds a further gloss, now suggesting multiple officers made remarks in response to his request for medical assistance. In his contentions filed in the Tribunal he said that 'when the Applicant requested an ambulance be called, a comment was made to the effect of "we are not your drug dealers"'. This for the first time suggests it was in response to a request for an ambulance. The comment makes no sense if it is in response to a request for an ambulance, rather than to be able to use his prescribed cannabis. Later in those contentions he said that the comments attacked his reputation because they implied that the applicant was a recreational drug user when the reason for taking the drug was that it was prescribed as medication to alleviate the applicant's diagnosed impairments and symptoms of those impairments.
[152] In my view there is insufficient credible evidence to support the conclusion to the Briginshaw standard that this comment was made. There is no documentation recording it and his complaint omitted reference to it. Senior Constable Wylie who was there had no specific recollection of the applicant. Officer Wylie cannot recall if the applicant requested medical assistance. The only evidence that this event occurred is the evidence from the applicant in cross-examination.
[153] The applicant did not elucidate on that evidence at any other stage of the hearing, although he was cross-examined about it. He said that there were two comments made by officers at the watch-house. The first was a discharging officer to whom he said that he wanted "medical treatment" (not an ambulance as his contentions state) to which the officer replied 'we are not your drug dealer', but he could not say whether it was a male or female, but it was someone who wore glasses. He later said that specific details of the words used and who said them eluded him and he could not describe the features the officer who said it or said the other statement about getting his bong on.
[154] It may be that words like this may have been used. However, I am not persuaded to the requisite standard that those words were in fact said. He had already been through several hours of very challenging events that night, and he did not have his prescription medication with him. There were many things that happened to him that night over those hours and it is not surprising that he has no specific recall of who said those things or even the sex of the person who said them.
[155] I accept that one possible interpretation of those words is to mockingly suggest that if he were to be provided with medical attention, implying he be provided with his medicinal cannabis, they would be effectively acting as his drug dealer, which of course would only be relevant to state if he was not in fact medically authorized to use that medication.
[156] Whether insulting, mocking or humiliating words amount to discrimination or are no more than insults or taunting is always a question of fact and degree. Some authorities[10] have suggested that mere insults do not constitute discrimination. Comments were made by Kiefel J as she then was in Creek v Cairns Post Pty Ltd[2001] FCA 1007; (2001) 112 FCR 352 which were adopted in later decisions to the effect that that in deciding if a respondent's act of racial discrimination was 'reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people' the act in question must have 'profound and serious effects, not to be likened to mere slights'. That is 'mere slights' in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult.
[157] Whilst, if said, the comments were patronising and probably insulting, I struggle to conclude that they constituted treating him, in a material way, less favourably in the material sense, than another person who had asked to be provided with prescription medication or medical attention and was refused it.
[158] Even had I upheld this aspect of the complaint, in my view it was a relatively insignificant incident, which had no compensable consequences and, in my view, did not plausibly infringe upon his human rights.
[41]
[159] For the reasons I have given, the complaint of indirect discrimination in respect of police preventing the applicant from taking prescribed medication whilst in the presence of police and while in custody is upheld.
[160] The respondent shall pay to the applicant compensation in an amount of $10,000 in respect of the claim upheld.
[161] The balance of the claims made in the complaint are dismissed.
[162] I do grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
[5][2006] FCAFC 100; (2006) 151 FCR 562; and see Mizner v State of Queensland (Corrective Services) & Anor[2024] QCAT 468 where these various tests were considered and adopted and it was held that while the prospect of having to "double up" in a prison cell might trouble a prisoner and is not his preference, the Tribunal was not persuaded that he would suffer serious disadvantage in being required to comply with the terms just like other prisoners in the WCC's residential section are.