Richens v Commonwealth of Australia - [2019] FCA 1224 - FCA 2019 case summary — Zoe

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Richens v Commonwealth of Australia

[2019] FCA 1224

Federal Court of Australia|2019-08-08|Before: Mr J, Mortimer J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-08-08

Before

Mr J, Mortimer J

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

The application be dismissed.
In relation to costs: (a) the respondent file and serve any written submissions, limited to five pages, on the appropriate orders for costs in this proceeding by 4 pm on 22 August 2019; (b) the applicant file and serve any written submissions, limited to five pages, on the appropriate orders for costs in this proceeding by 4 pm on 5 September 2019; and (c) the respondent file and serve any written submissions in reply, limited to two pages, by 4 pm on 12 September 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

Background 1 This is a claim brought by the applicant, Kathryn Richens, an officer of the Australian Federal Police, currently holding the rank of Detective Sergeant. I shall call the applicant DS Richens in these reasons. She seeks relief under the Fair Work Act 2009 (Cth) for what she alleges have been a number of incidents of adverse action taken against her from early 2013, by or on behalf of the Australian Federal Police. As a sworn member of the AFP it is common ground DS Richens' employer is, in law, the Commonwealth, but her employment contract is administered by and through the AFP. All those individuals who, on the evidence, have had a role in decisions or conduct in relation to DS Richens' employment were either sworn officers of the AFP, or unsworn employees attached to the AFP. 2 I have previously set out the background of how this proceeding came to be transferred to this Court from the Federal Circuit Court, and the considerable delay and changes in the evidence resulting from that transfer: see Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 (the costs reasons). I do not repeat what is contained in those reasons by way of the history of the proceeding, and adopt it as part of the background to these reasons for judgment. 3 DS Richens remained, at the time judgment was reserved in this proceeding, a sworn officer of the AFP. 4 Even putting to one side the delay caused by the transfer of the proceeding to this Court from the Federal Circuit Court, the proceeding has been beset by a number of challenges. First was the sheer scale of the evidence the parties sought to adduce. For the applicant, the affidavits which were read and relied upon for her case may have been smaller in number, but they were of a considerable size, with a tremendous amount of documentary evidence exhibited to them. They dealt, often in great detail, with events that she alleged had occurred over the last five years or more of her employment with the AFP. The AFP ultimately relied on the evidence of 37 witnesses, a number of whom swore or affirmed more than one affidavit. The volume of evidence was said to be necessary in order for the AFP to discharge the reverse onus imposed on it by s 361(1) of the FW Act. In part, it was also due to the factually detailed nature of the applicant's allegations. 5 Second, the proceeding was characterised by a lack of clarity in how the applicant put her case. It is fair to say that this lack of clarity, in terms of the framework of the adverse action provisions in the FW Act and the way it was contended the factual allegations fitted into that framework, continued until closing written submissions were received from the applicant. I accept this made the AFP's task more challenging, although the AFP was well-resourced and able to adduce a large body of evidence and make detailed submissions, so that in the end, it was not suggested that the AFP was unable to meet the case put against it. I accept the AFP may ultimately wish to contend the lack of clarity resulted in delays and unnecessary preparation, but that is not the subject-matter of these reasons. For the moment, it is enough to recognise that the applicant's case lacked clarity at a number of levels, at least until closing written submissions were filed some months after the hearing itself had finished. When some clarity was finally attached to the applicant's case, it turned out to be put rather differently from how it was put during trial. Again, however, the AFP did not contend it was unable to meet the case put by the applicant, even taking into account the reverse onus in s 361 of the FW Act. 6 A further challenge arose from the forensic decisions taken by counsel for both parties about how they would, respectively, approach cross-examination. In short, each party cross-examined the other's witnesses with considerable selectivity. There was little cross-examination, beyond puttage, about whether witnesses' narratives should or should not be accepted. This was especially true of the cross-examination of DS Richens herself, and of Commander Jennifer Hurst, who was the AFP's key witness. And yet this was a case which at least in some respects turns very much on which party's witnesses should be accepted as giving reliable and credible evidence. The parties' approach did not make the Court's task any easier. 7 For the reasons set out below, I have decided the applicant's application should be dismissed.

[3]

The basic narrative 8 In this section of my reasons, I make findings which give an overall picture of the context for DS Richens' allegations. I make more specific findings of fact later in these reasons where such findings are necessary to resolve each of the applicant's (now) six claims. 9 The voluminous affidavit material and the approach taken by both parties to cross-examination mean that there is a large body of evidence that is not apparently accepted by both parties, yet was also not the subject of any cross-examination. That this was the state of affairs at trial can be seen from the "Chronology of Key Events" filed jointly by the parties. That document lists a number of agreed events in the chronology, but also a number of events which are put forward by one party and not agreed by the other. Many of those events were not the subject of any cross-examination, despite the indication of a factual dispute existing. That appears also to be the case with a substantial part of DS Richens' evidence about her various employment positions since 2013: in her affidavits (see for example her affidavit of 13 October 2017) she gives a great deal of evidence about day-to-day occurrences which she describes as having been adverse to her, and as occurrences where she was treated differently to her similarly ranked colleagues. Not all of these matters form part of her six identified claims, nor indeed did they form part of her claims as put in opening at trial. Many were not the subject of cross-examination, neither of DS Richens, nor of the AFP officers who might have been cross-examined about them (for example, Detective Superintendent Darren Booy). Much of this evidence was not referred to in the applicant's closing written submissions. Accordingly, I have proceeded on the basis that these factual issues are, at best, part of the general background, but are not relied on in any way by either party to prove or rebut an alleged contravention, and therefore do not need to be the subject of express findings. 10 I do not intend to embark on some lengthy task of trying to sift through and sort out which facts remain in contest and what findings should be made about them, where the parties do not appear to have relied on those facts in advancing their respective cases. The approach I have taken is first to set out in this part of my reasons sufficient of the narrative to place the applicant's claims, the AFP's responses and my findings in a general context. Thereafter, and secondly, I make findings of fact on the basis of the evidence, where it is necessary to do so, in order to resolve one or more of the six claims now advanced by the applicant. I do so by reference to the evidence to which the parties directed the Court, principally in their closing written submissions.

[4]

The AFP as an organisation 11 In its closing written submissions, the respondent made submissions concerning the nature of the AFP as an organisation, and its decision-making processes. In particular, the respondent emphasised, by reference to the affidavit evidence of Mr Murat Boyuk, an AFP Human Resources Team Leader, the "constantly rotating nature" of its workforce. Mr Boyuk gave the following evidence: The AFP has an organisational priority to develop a multi-skilled workforce where its sworn officers can work capably in all different areas of crime. The main way that this is achieved is through rotating members through different areas as often as is practicable. This initiative not only achieves a better equipped police force, but it also assists the AFP's members in their professional development and career aspirations. As a general rule, someone will be considered for a rotation (whether they request one or not) when they have been in a role for two years or more. This rotation of members is common amongst the AFP from its team members up to Coordinators and, naturally, the higher the rank and responsibility of those being rotated, the greater the impact on a team. (Footnote omitted.) 12 I accept that evidence and have borne this context in mind when considering each party's case. 13 One manifestation of the mobility of the AFP's workforce was the movement in rank, location and indeed continuing employment, of various AFP officers who gave evidence, or to whom reference is made in the evidence. Movement in rank poses a particular challenge for the Court's description of witnesses. The approach I have adopted, which broadly reflects the approach taken during the trial, is to refer to officers by their rank at the time of material events, when I am dealing with those events in an historic or narrative context. Where I deal with an officer's evidence in this proceeding, I use the officer's rank as it was at trial, according to a list provided by the AFP to the Court. The choice is not always a binary one but I have attempted to maintain that distinction throughout.

[7]

Events leading to the National Placements Sub-Committee (NPSC) application and meeting 18 It does not appear to be disputed on the evidence that in all of her positions with the AFP until early 2013, DS Richens had received favourable and often substantively positive performance reviews, and her work performance had been acknowledged to be of a high standard. That is not to say that those within the AFP hierarchy responsible for assessing DS Richens' performance, or making decisions about her placements, did not see room for growth and improvement in her skills. Rather, it is simply to acknowledge, at a general level, that DS Richens had been seen by those within the AFP who had management responsibilities towards her, or worked with her, as an officer who performed well. 19 DS Richens' first attempt to co-locate with SC McPherson occurred in January 2013 when DS Richens applied for a transfer to a temporary "backfill" position in the AFP's Crime Operations unit in Brisbane. DS Richens was offered this position, but ultimately turned it down because some of the conditions attached to it were not suitable to her. This included some debate about the terms on which DS Richens could return to an operational position in Canberra when the temporary position in Brisbane ended. 20 There were some further vacancies identified by both DS Richens and SC McPherson in Melbourne, and both submitted expressions of interest for positions in Melbourne, also in mid-January 2013. Commander Hurst supported DS Richens' application to a position in Crime Operations. In an email to the relevant AFP officer in Melbourne (Manager Melbourne Office Commander, Scott Lee), Commander Hurst stated that DS Richens' expression of interest "comes with my strong support". 21 Commander Hurst's support was not unqualified. The majority of the available positions in Melbourne were in the Serious and Organised Crime team, at Team Leader level. Commander Hurst did not support the applicant transferring to those positions. In her affidavit evidence, DS Richens described Commander Hurst's support in rather negative terms, but the email from Commander Hurst at the time explains why Commander Hurst took the view she did: Hi Kath Please see below from Scooter I wouldn't support you going into SOC - all their operations are large scale narcotics matters - you need some time in Crime Ops before you go to SOC.. I have asked Scott to consider your placement when the TL's are being placed and include you into that mix - for a position in Crime Ops Melbourne if possible. 22 DS Richens' response to Commander Hurst's email was: That sounds good - happy to await that outcome with fingers crossed. Thanks so much for this. 23 The applicant's transfer application to Melbourne took some time to resolve, and was not resolved by the start of March 2013. Also around this time, due to a restructure of the People Smuggling Operations team in Canberra, the applicant was moved to a Team Leader role in Crime Operations in Canberra. In this role she was under the command of Commander Hurst, although she reported to Superintendent Booy. The applicant's evidence was: When I commenced in Crime Operations Commander Hurst's behaviour towards me was indifferent and I felt unwelcome in the team. I felt excluded and was rarely spoken to with the exception of Sergeant Clifton whom I already had a good rapport with from ACT Policing. 24 While I make no finding as to whether this was or was not how Commander Hurst behaved when the applicant first moved to Crime Operations, I note this was how, four years later in 2017, the applicant described herself as feeling at the time. That may well be accounted for by the matters to which I refer at [196]-[199] below. 25 In April 2013, DS Richens was offered a position in Melbourne by the National Placements Sub-Committee (which I refer to in these reasons as the "NPSC"), the body which is the subject of some allegations by DS Richens for its subsequent decision-making about her in June 2013. The precise Melbourne position was to be specified at a later date. DS Richens initially accepted the Melbourne placement offer. She had also applied to the NPSC for a transfer to Brisbane, but withdrew that application after Commander Hurst told her she would not support it. Commander Hurst supported DS Richens' application to transfer to Melbourne. One Constable Joseph Thorn was identified by the NPSC for promotion to Sergeant and transfer to Crime Operations in Canberra. The AFP's evidence was that this kind of "swapping" of officers in and out of positions was a regular, but not invariable, part of the transfer process. 26 On 16 May 2013, the AFP's Crime Program Workforce Planning Meeting minutes stated: FA Kath Richens is transferring to CP Melbourne Office. Transfer date and team to be advised. TMBST advised that FA Richens will transfer into the role of Team Leader Melbourne Trident Taskforce. FA Joseph Thorn will be transferring into FA Richens position in HQ as TL Crime Operations. Melbourne HR advised that the transfers will occur in July. 27 In late May 2013, DS Richens withdrew her acceptance of the Melbourne position. DS Richens' evidence is that she withdrew from the transfer because of the difficulties she was having in co-locating with SC McPherson. SC McPherson was refused a transfer to Canine Melbourne, and was also told she could not transfer to Canberra, and had to remain in Brisbane. This was the email DS Richens sent to Commander Hurst on 23 May 2013: Ma'am, I regretfully withdraw from the transfer offer to Melbourne. My decision relates to realigning personal career aspirations with life priorities confronting me now and into the foreseeable future, including inability to co-locate my partner to Melbourne and the relationship stressors and financial considerations that extend. Thank you for supporting my EOI though the NPCSC process. Kath 28 However, it is also the case that between late April and late May 2013, a number of other events occurred, which are the subject of some of the applicant's adverse action allegations. I set those out below. There were also some discussions about whether Constable Thorn's transfer to Canberra could be delayed until early 2014 for family reasons (his wife was expecting a child), and whether DS Richens' transfer needed to nevertheless go ahead in July 2013, as Commander Hurst thought it should. At one stage the applicant relied on these events as part of her adverse actions claims (to the extent she asserted she was being treated differently to Constable Thorn), but it appears she no longer does. 29 In late May 2013, after she had withdrawn from the Melbourne transfer, DS Richens was seeking out positions in the AFP's Counter Terrorism division in Canberra.

[8]

The June 2013 NPSC application, DS Richens' placement at Learning and Development and further transfer attempts 30 In an email responding to DS Richens when she told Commander Hurst she would not be taking the Melbourne transfer, Commander Hurst had said: We will need to discuss where to now for you; please give this some consideration and I will have some time allocated next week in my calendar for a discussion with you, Ben and myself 31 The "Ben" referred to is Detective Superintendent Benjamin McQuillan. It appears from the evidence that whatever discussions were held between DS Richens and Commander Hurst were also intermixed with the arrangements for DS Richens to take leave. The leave arrangements were rendered difficult at least in part because a number of officers had leave approved at the same time - a matter which Detective Superintendent McQuillan deposed resulted in the team having insufficient capacity during that period. 32 DS Richens appears to have spent a considerable period of time on 6 June 2013 arranging to lodge her application to the NPSC for redeployment out of Crime Operations, as she had been directed to do. She was attempting to identify positions which might be suitable for her, and which she would be keen to pursue. She gave evidence that she had been advised, by both Superintendent Mark Colbran and (then) Sergeant Donna Hall, that she was able to submit a "deferred" NPSC application, which in substance stated that she would "like the opportunity to use other avenues first" before being compelled by the NPSC to take a placement chosen by the NPSC. I note at the time of trial Sergeant Hall had changed her surname to Sloane and had left the AFP. Some time was spent in evidence about whether there was, in fact, such a thing as a "deferred" application to the NPSC. In the end, this seemed to be something of an arid debate over terminology, which I have not found necessary to resolve. 33 The content of DS Richens' application to the NPSC assumed some significance at trial. On its face, it is clear DS Richens requested further time to try to identify a suitable operational vacancy for herself - this was the "deferred" aspect of her application. As the form then required her to do, DS Richens also identified a number (nine in fact) of positions in other portfolios to which she would accept a transfer. I note that the term "portfolio" appears to be a preferred internal descriptor used by the AFP and, where appropriate in these reasons, I have adopted it. One position she nominated was in the portfolio titled "Learning and Development". 34 This is what DS Richens said in her application about this proposed position: 3) Learning and Development: Advised that a Team Leader vacancy exists. Submitted my EOI and CV to Manager Learning and Development and yet to discuss my suitability for this vacancy with her. 35 In other words, DS Richens had already applied for a vacant position in Learning and Development before submitting her NPSC application in June 2013. Learning and Development is where she in fact was transferred, and is the subject of some of DS Richens' further allegations. 36 In the email sent enclosing her application, the applicant told the NPSC: NPSC Secretariat, RE: APPLICATION FOR PLACEMENT BY THE NATIONAL PLACEMENT SUB COMMITTEE Please find attached my application for placement by the National Placements Sub Committee. I was requested to submit this application for the NPSC scheduled 13/6/13, however wish to seek deferment to have this tabled at a later NPSC for the following reasons: • I was advised on 28/5/13 that there is unfortunately no position for me in Crime Operations following my withdrawal from a transfer to Crime Operations Melbourne. • Between 28/5/13 - 6/6/13 I have been proactively seeking vacancies in other portfolios suitable to my skills set. These enquires are incomplete and there are indications due to various restructures and budgeting outcomes that a suitable vacancy may arise in the coming weeks, for which my CV will be closely considered. • I do not feel I have been afforded suitable time to respond to the request to identify a new position for myself prior to this NPSC, and as such request either an extension of time to finalise my proactive enquiries, or alternatively be considered for placement to an operational vacancy (or proposed vacancy under restructure) within one of my identified portfolios of interest. I am on leave 7-17/6/13, but available at any time on [REDACTED] should you require further information. Submitted for your action. Thanks, Kath Richens (Original emphasis.) 37 While the NPSC process was underway, DS Richens was still applying, separately, for other positions, including a position in Counter Terrorism in Canberra. 38 On 17 June 2013 the applicant was informed by David Turner, the AFP's then Acting Manager Human Resource Strategies, that the NPSC had decided to place her in Recruit Training in Canberra, on a fixed-term mobility position in the Learning and Development portfolio. She was, as the name suggests, to be involved in teaching AFP recruits. As I have noted, the applicant had already applied for a position in this portfolio. The applicant gave evidence that this position was "non-operational", was a two year position and did not allow her to apply for transfers during that period. 39 Despite being given this information, DS Richens persisted in her attempts to secure an operational position and spoke with Acting Commander Andrew Donoghoe about the positions in Counter Terrorism she had been inquiring about. She sought, through Mr Turner, to have her placement in Learning and Development "suspended" while she pursued a potential vacancy in Counter Terrorism. On the same day, DS Richens was told again, this time by Superintendent Booy, that she was to go to Learning and Development. Acting Commander Donoghoe confirmed to her by email on 21 June 2013 that the NPSC decision had to stand. Also on 21 June 2013, Superintendent Booy actioned the applicant's transfer to Recruit Training, effective 15 July 2013.

[9]

The leave requests 40 DS Richens had some leave planned between 13 and 17 May 2013. The purpose of her taking leave was to spend time with SC McPherson and attend SC McPherson's mother's 60th birthday party in Victoria. The leave had been approved in March 2013. There were other officers taking leave at the same time and one of the adverse action allegations made by DS Richens concerns the contention that Commander Hurst "targeted" DS Richens by requiring her to meet with Commander Hurst regarding her leave and to find a backfill for her position, while other officers taking leave were not required to identify backfills. 41 At the end of May 2013 there was a further issue with DS Richens' leave. She had applied (on 24 May 2013, a day after she had turned down the Melbourne transfer) to take leave from 3-6 June 2013. In her affidavit evidence, DS Richens described this leave as "a matter of urgent wellbeing need", and deposed that its purpose was to spend time with SC McPherson. Her request was declined by Commander Hurst (through Detective Superintendent McQuillan), who informed her she could take leave the following week, from 11-14 June 2013. DS Richens then booked some non-refundable airfares to Brisbane. However, she was later told by Detective Superintendent McQuillan that in order to take that leave she needed to find a backfill for her position and the position of another AFP officer who was taking leave at the same time. DS Richens alleges she was targeted for unfair treatment by Commander Hurst in how her leave (which had been approved) was placed in jeopardy. Ultimately, DS Richens managed to find backfills, and took her leave, apparently from 11 June 2013. 42 It appears to be common ground that DS Richens was directed by Commander Hurst to make her application to the NPSC prior to commencing this period of leave. It also appears to be common ground DS Richens submitted that application on 6 June 2019. 43 A little later, after the NPSC decision to which I refer above, and due to the stress she was feeling, DS Richens applied for another round of leave - this time, long service leave. DS Richens applied for long service leave from 1-12 July 2013. She did this in the usual way by submitting an application form to her supervisor, Superintendent Booy. 44 It should be noted that the time period during which DS Richens was seeking to take long service leave overlapped with her last two weeks in the Crime Operations team, before she moved to Recruit Training. On the evidence the applicant's last day of long service leave was 12 July 2013 (a Friday), and she commenced in Recruit Training on 15 July 2013 (a Monday). That fact is relevant to the circumstances which arose after her request was lodged. 45 In her affidavit evidence, DS Richens described the way she felt which prompted her to apply for this leave: I applied for LSL because I felt incredibly stressed and bullied by Commander Hurst, Superintendent Booy, Sergeant Anderson and Mr Turner. I felt that I could not attend work in Crime Operations without being harassed and intimidated. It took courage for me to attend work each day and I sat at my desk trembling, shaking and like my life was in crisis. I wanted to immediately remove myself from this environment. 46 These are the kind of matters about which it is not possible to make findings, one way or the other, on the state of the evidence, because none of this kind of evidence was tested. As I have said elsewhere, I do accept, however, that when DS Richens looked back at this period at the time she swore her first affidavit in October 2017, this was her perception of how she felt at the time. There is no basis to find that DS Richens concocted this evidence. It may sound extreme, and perhaps attended with some exaggeration, but I accept that when DS Richens swore her affidavit in October 2017, this was her memory of how she felt. That is not the same finding as one which finds, as a positive fact (for example), that each time she came into the Crime Operations office in June 2013, DS Richens did sit at her desk trembling and shaking. It is, however, clear that DS Richens was very unhappy, and was forthright about her unhappiness. In her October 2017 affidavit, she deposes to raising with her new supervisor in Recruit Training, Superintendent James Stokes, on the first occasion she met him on 26 June 2013, that her new position was the result of an "involuntary redeployment", and the operational role in the Counter Terrorism portfolio was what she was interested in. Hardly, one imagines, what a supervisor wishes to hear from a new officer starting in her or his team. Various evidence from the respondent also confirms that during this period DS Richens presented as anxious and agitated: see for example the evidence of Superintendent Booy at [34] of his first affidavit, about his meeting with the applicant on 28 June 2013. 47 Following receipt of DS Richens' application for long service leave, Superintendent Booy and Sergeant Jim Anderson were concerned she had not completed all the tasks she needed to before she left Crime Operations. At [25] of his first affidavit, Superintendent Booy listed what those tasks included. The applicant was adamant she had a complete handover ready to go. Superintendent Booy and Sergeant Anderson called a meeting to discuss the issue, to which DS Richens brought Sergeant Hall as a support person. Sergeant Hall was, at that time, a member of the AFP's "Confidant Network", the purpose of that network being to provide officer-to-officer support regarding reports of alleged inappropriate or unethical behaviour in the workplace. At this point it is not necessary to set out the very long and detailed competing versions of what happened at that meeting. A compromise was reached: the applicant would complete some of the tasks Superintendent Booy had identified as outstanding, and her leave would be granted, but delayed by two days. The applicant did what she was required to do, a backfill for her position was identified, and she then took her leave. 48 While DS Richens was on leave, she and SC McPherson decided to write to Assistant Commissioner Leanne Close about their failed attempts to co-locate. In their email to her, the two officers described their predicament. It is a lengthy email but worth setting out in full, as it gives some context to many of the allegations in this proceeding: Dear Ma'am, I apologise for approaching you directly, however I am seeking your independent review and advice on the matter of co-locating with my partner S/C Emma McPherson in Canberra. Our request to co-locate was raised through NMA to Brisbane Aviation for consideration of Emma's release to a vacancy in Canberra. At this point the feedback from Brisbane Aviation has been particularly unsupportive and offers no resolution or ongoing consideration. Emma has been told she is not released within the next 18 months and is not to raise or discuss the request again with anyone else or possible disciplinary action may take place. The matter is distressing for us both as we have put forward reasonable solutions which are of mutual benefit to the organisation and our relationship. We genuinely feel that the request has not received balanced consideration, and Brisbane Aviation management are unwilling to negotiate the transfer into future workforce planning options. I appreciate you are very busy and I hope my contacting you direct is not viewed as inappropriate, I have just unfortunately reached a point of not knowing how to address the matter now, and persistence through the channels already addressed appear inflammatory. Brief Overview of Request We have been attempting to co-locate since January 2013. After I was found highly suitable for the International Network over the past 2 years the selection panel afforded feedback that I should expand my operational skills in regional operations to assist with placement into the network. As a result I requested positions in Brisbane but was declined any permanent vacancies. As there were vacancies in Canine Melbourne, we both progressed transfers there. In April 2013, through the NPSC process (EOI Mobility Transfers for Team Leaders) I was afforded a transfer to Crime Operations Melbourne, however Emma was declined through an informal process addressed to Canine and Brisbane Aviation. We attempted to seek reconsideration of her transfer by resubmitting the request through CMS for NPSC placement, however this was also declined citing nil vacancies as the reason. Brisbane Aviation A/Superintendent Brendan Withers then consulted Canine Canberra and advised there was an opportunity for her to transfer back to Canberra as an alternative option following an email from Superintendent Andrew Clarke indicating vacancies there. We viewed that option as attainable and I withdrew from the Melbourne transfer to align my career aspirations with my work-life balance requirements, however the opportunity for Emma to transfer was then declined. Following my withdrawal from Melbourne I was advised there was no longer a position for me in Crime Operations Canberra, and through the NPSC process was reassigned to a permanent position as Team Leader, Recruit Training, Learning and Development commencing 15 July 2013. We have been resilient to non-constructive feedback including but not limited to ongoing statements such as our circumstances are not comparative to the co-location of heterosexuals who meet genuine compassionate reasons, it's not the AFP's problem we live apart nor is it the AFP's responsibility to co-locate people with their partners, and if Emma feels aggrieved by not being released she should see Davison Trahaire and find herself a share house to make some friends and save some money. We have both engaged Wellbeing Services and the Confidant Network and have been appreciative of the guidance and support they have provided to date. We understand that retention of females in the AFP is important and combined we have 26 years of experience. The AFP has invested in our careers, I am within a leadership role and Emma is within a specialist role with additional skills retention in OST. We want to be fully efficient in our jobs whilst obtaining a healthy work-life balance, however it feels the medium to long-term option confronting us is to seek alternative careers outside the AFP in order to obtain that. We are seeking review of our request for Emma to transfer at our own cost from Brisbane to a vacancy in Canine Canberra. There are current and planned vacancies in Canine Canberra and several additional Canine vacancies becoming available for general purpose dogs assigned to ACTP. There are Canine courses in progress with an opportunity for Emma's vacancy in Brisbane to be filled, and we genuinely offer to repay the costs borne by the AFP ($4,500) for her original transfer to Brisbane to enable that process. Emma's dog specialises in explosives / firearms detection to which there are 8 of the same purpose in Brisbane, and 3 of the same purpose in Canberra. Emma also has a genuine interest in being the first female to perform duties as a dual handler / general purpose handler in Canberra, however has been advised she will be ineligible for the general purpose Canine EOI as she is Brisbane based. I am currently in Brisbane on LSL with Emma, and would be happy to discuss further at any time that is convenient with you. I have cc'd Brigid Ryan on this email as she was supportive from a Wellbeing perspective in my approaching you outside formal chains of command. Kind regards Kath Richens (5685) and Emma McPherson (18908) (Original emphasis.) 49 Assistant Commissioner Close replied in a sensitive way. Again, it is worth setting out the whole response: Hello Kath Apologies for the delay in my response, but I was on leave last week. I have made enquiries in recent weeks about the potential for Emma to return to Canberra with the Aviation portfolio. I did this after you approached the Confidant Network and sought their advice. Donna Hall asked told me your concerns about this matter and advised you were happy for me to make those enquiries with Aviation. I spoke to NMA Shane Connelly about this three weeks ago. Initially, he agreed with me that this sounded like an option. However, upon making enquiries with his management team, he found out that Emma has not been in Brisbane very long at all. The investment in having her train and transfer to Brisbane was significant and Aviation have advised Emma that they want to have her work there for the two years minimum as was agreed at the time of the transfer. I cannot override the decision of Aviation, but I will forward your email to NMA for his information and to ensure there are no other options that might be considered. On the matter of people saying to you or Emma your "circumstances are not comparative to the co-location of heterosexuals who meet genuine compassionate reasons" can you send me the emails or details of the conversations so that I can investigate. It is not appropriate for anyone to make these sorts of comments. I want to make sure that whoever did so is advised that their comments are inappropriate and contrary to the values of the AFP. Kind regards Leanne 50 This sort of evidence makes the applicant's overall case challenging. Responses such as that from Assistant Commissioner Close (and there are others in the evidence) appear fair, and proportionate, disclosing a rational basis for why past decisions have been made. In contrast, despite what was said in DS Richens' and SC McPherson's email, on Assistant Commissioner Close's evidence DS Richens herself did not respond to Assistant Commissioner Close and did not produce to her any of the allegedly discriminatory communications of which she and SC McPherson had complained. Nor was the Court referred to any evidence of such communications despite (one might have thought) such evidence being material to some of the applicant's adverse action allegations. 51 However, the Court Book does contain email correspondence between Assistant Commissioner Close and SC McPherson in late July 2013, in which SC McPherson provided an example of the "inappropriate comments" referred to in the 9 July 2013 email. SC McPherson prefaced her description of the comment with the following statement, in which I note she uses the pronoun "we": As I am sure you can appreciate the nature of these kind of comments and behaviours come with other pressures having me feeling very uncomfortable in my current workplace. We mentioned this comment to show the kinds of things we have been dealing with and to justify the fact that we believe that my request has not been viewed with equal respect and fairness as other couples. 52 The example that SC McPherson provided was from a conversation with her then Team Leader on 1 May 2013, about her transfer request. SC McPherson stated she was told she should not "get her hopes up" for a transfer. She stated that there was a discussion about what would constitute "compassionate circumstances" for a transfer. SC McPherson stated her Team Leader said her personal circumstances didn't fit within that concept, and gave an example of such circumstances as being an AFP member coming to Brisbane, who wants to be with his wife, who won't move to Canberra. When SC McPherson told her Team Leader she wanted to be with her partner, she stated that her Team Leader responded "but that's different". 53 As I have noted, this was not an example provided to Assistant Commissioner Close by DS Richens, but by her partner, and it did not directly involve DS Richens. Nevertheless, it is an example from the evidence. Nothing of it was made on behalf of the applicant. Whether or not Assistant Commissioner Close "looked into" what SC McPherson had said (see her affidavit of December 2017 at [26], where she deposes she would have looked into any such comments if provided to her) did not emerge from the evidence, as Deputy Commissioner Close (as she was at the time of trial) was not cross-examined about this. 54 This is an example of how difficult the parties, and particularly the applicant, have made the Court's task, by not referring the Court to aspects of the evidence which would appear to have been relevant to her discrimination claims, and by not testing material aspects of the AFP's witness evidence.

[10]

DS Richens' Performance Development Agreement in late 2013 55 After she had commenced in Recruit Training, Superintendent Booy was finalising DS Richens' Performance Development Agreement (PDA). As Superintendent Booy explained in his evidence, the PDA is an agreement between each officer and her or his supervisor, applying to a defined period of time. The supervisor is often required to "review" an officer's performance, measured against what was agreed (in advance) to occur during that period of time. The review process has a binary outcome: either the officer is rated as having "fulfilled" or "not fulfilled" the aspects of her or his PDA. There is no dispute that Superintendent Booy, when he completed the applicant's PDA review in October 2013, rated her as having fulfilled all aspects of her PDA for the period of March-August 2013. DS Richens was, however, unhappy with six comments made by Superintendent Booy in his review, which she contended amounted to "explicit and implicit claims of underperformance". The circumstances surrounding DS Richens' subsequent complaint about Superintendent Booy's review is the fifth claim in DS Richens' final set of allegations, and I will set out where necessary the detail of the facts in my findings on those claims. 56 Officers can apply for a review of their PDA assessment, in certain circumstances. DS Richens sought to have her PDA reviewed. Superintendent Booy stood by his observations when first contacted by the AFP's Human Resources department, saying they were fair and justified. After what appears on the evidence to have been a somewhat protracted process, during which the applicant continued to assert Superintendent Booy's comments were "defamatory" and without a basis, in December 2013 Ms Julia Lynch (then employed by the AFP as a Team Leader, Performance Management Unit, Human Resource Management) told DS Richens there could be no review of her PDA. Ms Lynch stated this was because PDA reviews were only available where an officer had been rated as having not fulfilled aspects of the PDA and as "underperforming", or in circumstances where a Management Team is unable to resolve a "serious intractable performance dispute" (this latter category being one Ms Lynch considered did not apply in DS Richens' case). Since DS Richens' PDA was rated as "fulfilled", and Superintendent Booy's observations were only commentary, Ms Lynch did not consider there was any basis for a review. The applicant continued to complain about this outcome, and press for her PDA to be changed, into 2014. 57 As part of the Fair Work Commission outcomes, the issue of DS Richens' PDA review was revived again. A review was one of the two agreed outcomes before the Fair Work Commission. If anything, the PDA review produced a more unfavourable report to DS Richens, which she described in her October 2017 affidavit. It is not necessary to set out the content of what was said by various AFP officers in that review (including Commander Hurst, Superintendent Booy, Sergeant Anderson and Detective Superintendent McQuillan).

[11]

Attempts to transfer to other positions until May 2015 58 It is not necessary at this point to set out the very considerable evidence relating to the efforts the applicant, and SC McPherson, continued to make to transfer to positions which would mean they could co-locate. The evidence shows constant effort to do so, especially on the part of the applicant, and so much so (in terms of the amount of correspondence) that it does lead one to wonder how the applicant had time to perform her duties. 59 The applicant was obviously still finding the situation very stressful. Her evidence is that after consulting her general practitioner in mid-February 2014, she was a given a medical certificate and granted personal leave from 17 February-14 March 2014. The absence of any solution to the co-location issue, and a number of events to which DS Richens deposes in her October 2017 affidavit, led her to return to her general practitioner in mid-March 2014 and be granted the appropriate certificate for a further two months of personal leave, until 2 May 2014. 60 When she returned to work on 5 May 2014, DS Richens deposed in her affidavit evidence to receiving considerable support from Superintendent Stokes, who, as I have noted above, was her supervisor in Recruit Training. 61 The applicant immediately commenced actively looking for other positions, including in Counter Terrorism. Despite her apparent aversion to the portfolio, she also tried to transfer to Learning and Development in Brisbane. During this time, DS Richens also learned of the transfer of one Sergeant Peter Lamont to a position in the AFP's Counter Terrorism unit - a unit she was very keen to work in. The applicant's evidence is that this transfer of Sergeant Lamont appears to have been arranged by Commander Hurst. 62 The applicant continued to apply for and enquire about vacancies and transfers, including to Counter Terrorism in mid-September 2014, when expressions of interest were called for. The applicant submitted an EOI and deposed to being "excited" about it, and of having confidence in her application. 63 However, the applicant was clearly still very worn down by the inability to co-locate with SC McPherson, or to secure a placement out of Recruit Training and back into an investigative role. She deposes that in a conversation with Superintendent Stokes in mid-October 2014, she said the following to him, when he asked her "so, how's life": … what life, I don't live life, I pass time, I go home to nothing each day, and I struggle to get up in the morning to come to work. 64 With the assistance of Superintendent Stokes, DS Richens attempted to find positions such as temporary backfill positions in Brisbane, with limited success. Superintendent Stokes was clearly trying to be supportive of DS Richens and her situation, but at least on DS Richens' evidence, he could not see an answer. DS Richens deposed to this conversation about her application for a temporary backfill position in Brisbane: Me: "Well 3 months is better than nothing and I would appreciate the respite because in addition to my FWC conference next week, Emma has her Human Rights conciliation in Brisbane on 31 October 2014 that I need to attend with her". Superintendent Stokes: "At some stage you need to give up" Me: "Give up what? My partner or my job?" Superintendent Stokes: "I don't know" Me: "well what do you mean give up, why did you say that. I'm good at my job and I love my partner so what am I supposed to give up?" Superintendent Stokes appeared frustrated by my response and stated words to the effect: "I don't know Kath, I don't know what I mean. I guess at some stage you need to stop because it is making you unwell" Me: "well that's why I'm asking to work in Brisbane, so I can have a normal life" 65 After considerable persistence, DS Richens commenced a four week backfill position in Brisbane in early November 2014. It was in Learning and Development. It appears to have turned into a longer stay. It appears that while she was in Brisbane, DS Richens' preoccupation with securing a position she was happy with continued. SC McPherson deposes: Between 30 October 2014 and 12 February 2015, Kath was in Brisbane backfilling the Sergeant Learning and Development positon. Kath spent a lot of time seeking updates from Mr Turner on the progression of the FWC undertakings as she was stressed and continued to be denied vacancies. 66 In late November 2014, DS Richens was informed she was unsuccessful for the position she had applied for in mid-September 2014 in the Counter Terrorism unit in Canberra. In her affidavit, she deposes that she considered this outcome was "pre-determined" because Mr Turner had told her at the Fair Work Commission conciliation conference she would not get a role in Counter Terrorism. Mr Turner denied saying this. The AFP objected to the applicant's evidence on the basis it was inadmissible opinion. I consider the evidence is admissible as evidence of her state of mind at the time, but no more than that. 67 There was further communication between DS Richens and Mr Turner about possible transfers right up until the end of 2014 and into early 2015. The possibility of a "swap" with an AFP officer who was stationed in the Aviation division in Melbourne arose in December 2014, and DS Richens pursued this. Her affidavit evidence deals with what she saw as a consistent stream of obstacles put in the way of this "swap" being effected. However, as I outline from [78] below, this "swap" eventually occurred.

[12]

The Fair Work Commission complaint 68 The applicant lodged a complaint with the Fair Work Commission on 7 September 2014. 69 SC McPherson had also lodged a complaint, but with the Australian Human Rights Commission. 70 A conciliation conference was held at the Fair Work Commission on 21 October 2014. There is some dispute between the parties about what precisely were the outcomes of the conference. However, there is no dispute that whatever occurred was taken by both sides as being capable of resolving the applicant's complaint to the Fair Work Commission, although formally the Commission appears to have left the complaint "open" for some time. Ultimately it appears the Commission closed the file. 71 Mr Turner deposed the respondent agreed to two outcomes as a result of the conference: (a) a review of the applicant's PDA; and (b) that the respondent would look for sworn operational roles in Melbourne and Canberra at the applicant's level that suited her skill set. 72 Mr Turner's summary is consistent with the substance of the following email exchange between Jasmine Millar, Senior Legal Counsel at the AFP, and DS Richens, immediately following the Fair Work Commission conciliation conference. It is useful to set out that correspondence in full. 73 On 21 October 2014, Ms Millar sent the following email to DS Richens: Dear Detective Sergeant Richens, I refer to the conciliation conference at the Fair Work Commission this morning. As discussed at the conference, the AFP is willing to undertake the following actions to resolve your general protections dispute: 1. Conduct a review into the PDA comments; and 2. Identify operational roles in your preferred location of Melbourne which may be suitable to you. We understand that you may consider operational positions in Canberra and we may also identify these for your consideration. It would, of course, remain open to you to apply for any position in which you have an interest. Could you please confirm that the above accords with your understanding of the outcomes agreed today? On the practical side of things, we would propose to move forward on these items as follows: 1. PDA comments review - Dave Turner will identify the appropriate person to conduct the review and initiate the review process by 29 October 2014. You will be advised who will be conducting the review and the expected timeframe for completion. 2. Suitable positions - Dave Turner and his HR Team will commence work on identifying operational positions that may suit your preferences. This may involve some consultation with operational areas and L&D. Dave Turner will contact you in the next 2 weeks about potential roles and confirm the process going forward. Should you have any questions in relation to the above or wish to discuss please do not hesitate to contact me. Kind regards, 74 On 22 October 2014, DS Richens replied to Ms Millar's email. It is immediately apparent how prescriptive her response is: Dear Jasmine, Thanks for your email. My understanding is that AFP will undertake the following actions to assist in resolving my general protections dispute, and that these actions are to be conducted within reasonable time. I note you indicate timeframes to commence the actions which are acceptable to me. 1) AFP will explore the issues of co-location with my partner in my location preference identified as (1) Melbourne. Positions in location of preference for my partner remain subject of HRC 2014-11449 in strict consultation with her Solicitors at Maurice Blackburn. I stated Counter Terrorism (CT) as my operational functional preference. AFP will identify Outcome 1 operational roles in my preferred location of Melbourne which also may be suitable to me. AFP understand that I may consider operational positions in Outcome 1 Canberra and AFP may also identify these for my consideration. AFP have provided consent to apply for any position in which I have an interest. I raised that operational vacancies in Melbourne (ie: new CT Team formed under recent NPI) are managed through HR processes at a local HR level and therefore will require National HR consultation with operational functional areas to identify and consult those specific operational vacancies. 2) Conduct a review into the disputed PDA comments in accordance with PDA Procedures, Section 17 - Performance Review Audit. In regards to the second point, I will submit a portfolio of evidence for this review to Dave Turner this week. Deputy President Kovacic has left my file open with the Fair Work Commission, and as such I clarify that these actions are not a deed of release to my general protections dispute. Thanks, Kath Richens 75 The reference to SC McPherson appears to be to her Australian Human Rights Commission complaint, and I infer Maurice Blackburn were her solicitors in relation to that complaint. There was no direct evidence in this proceeding about the terms or outcome of SC McPherson's complaint. SC McPherson was one of the witnesses the AFP did not require for cross-examination. 76 The next day, Ms Millar replied to DS Richens: Dear Kathryn, Thank you for your email. We will start to action the items. In relation to your portfolio of evidence for the PDA review, please provide this to the investigator at the appropriate time rather than Dave Turner. I understand that Dave Turner will be in a position to advise you who the investigator will be shortly. Kind regards, 77 It seems that aside from the above email exchange between DS Richens and Ms Millar, to which DS Richens refers in her affidavit evidence, there is no record of the agreed outcomes of the Fair Work Commission conciliation conference. There was certainly no formal agreement between the parties. Subsequent events demonstrated that no lasting resolution was achieved.

[13]

DS Richens' transfer to Melbourne Aviation 78 This transfer occurred in May 2015. In February 2015, Mr Turner informed DS Richens that the swap had been approved, and that although he had thought it had "fallen through", the AFP had "managed to resurrect it". It was a permanent transfer to "Melbourne Aviation". 79 Mr Turner stated there would be no relocation costs attributable to the AFP. He saw the applicant's transfer as being not dissimilar to a "compassionate move" and therefore one which, under the AFP's guidelines, an officer must fund herself or himself. DS Richens disagreed with this, maintaining that it was part of the Fair Work Commission conference options for resolution that the AFP would pay the reasonable relocation costs for any position to which she was transferred. She also maintained that in any event, she was being treated differently from other AFP officers who had their relocation costs paid in circumstances similar to hers, including Sergeant Lisa Coleman, with whom she "swapped" roles. These costs form part of DS Richens' claims of loss in this proceeding. 80 DS Richens describes the Melbourne Aviation role as a "community policing role", attending incidents within the Melbourne Airport precinct, without any investigative aspects to the role. In her October 2017 affidavit, DS Richens' description of her attitude to that role appears negative from the time she commenced in it. She also applied for rental assistance in Melbourne, on the basis of her transfer from Canberra, and was denied it, thus fuelling further complaints by her. In her October 2017 affidavit she describes how difficult and stressful it was to transfer to Melbourne without the assistance from the AFP to which she claims she was entitled. In that affidavit, she describes those effects in the following way: Arranging my own transfer caused me significant stress as I was not afforded the same entitlements as other members including having my home packed and moved interstate by a removalist, having temporary accommodation in my new location until I could secure a rental property and having rental assistance until I could find a new home to purchase. I was also not afforded the usual financial disturbance and pet allowances and assistance to establish myself in my new location. At the same time I had to move out of my home and stay at my sisters in Canberra to enable my home to be rented. In Melbourne you cannot apply for a rental property unless you have inspected the property prior to application. This caused me significant distress and financial pressure in travelling back and forth between Melbourne and Canberra to inspect properties. At times these properties were rented out prior to my inspection. I slept on a friend's floor until I could find a rental property. I felt very unwell trying to co-ordinate my relocation without any assistance.

[14]

Continuing attempts to transfer after May 2015 81 DS Richens clearly was unhappy with the role she took up in Melbourne Aviation. In her evidence she conveys the impression she felt she had little choice but to take it, although it was not the kind of role she was seeking. She deposes (at [265] of her October 2017 affidavit): My placement at Melbourne Airport Uniform Policing caused my skills to diminish, experience to lapse and delimited my competitiveness for opportunities. 82 DS Richens' evidence is that she continued to apply for "multiple opportunities" for transfer to an investigations team, as they became available, but was always unsuccessful. In mid-2015, her evidence is that staffing levels at Melbourne Airport were reduced, but there was an increase in resources and funding being allocated to Counter Terrorism. This led DS Richens in late July 2015 to lodge an EOI for a position in Counter Terrorism in the Melbourne Office. Her evidence is that although she was told her EOI would be forwarded to the relevant Superintendent, she heard nothing further. I accept this evidence, it is consistent with other aspects of DS Richens' evidence, and she was not challenged on it. The applicant, of her own motion, made an enormous number of inquiries and applications, and it may not be surprising that she did not receive a response to each and every one of them. 83 A further opportunity in the Melbourne Office arose in August 2015, this time for the position of Sergeant, Counter Terrorism Community Liaison. DS Richens applied for that role. She also applied for another role in the Joint Counter Terrorism Team. Her evidence discloses she made her interests in these positions known to various relevant officers within the AFP, through a variety of means. It is clear DS Richens left no stone unturned to try and secure an investigations role again, in particular a role in the Counter Terrorism area. Again, it appeared DS Richens was unsuccessful for these positions. In her evidence, which I accept on this aspect of her narrative in terms of the considerable efforts she was putting into securing a transfer back into an investigative role, she deposes to a conversation about a much more junior AFP officer, who somehow was successful in being transferred to the Joint Counter Terrorism Team. She was not cross-examined on this evidence and I accept the following conversation occurred: In this meeting OIC Lane also spoke about a colleague and friend Constable Astrid Auliciems (Constable Auliciems) who was being transferred to JCTT. She had only graduated from Recruit Training around July 2015 and been deployed to Melbourne Airport three (3) months, OIC Lane stated words to the effect: "She has already done her time in Community Policing. She did a few years in Queensland Police prior to joining the AFP so she's experienced and does not need to be at the Airport ... she already has the skills". I said words to the effect: "well I've done eight (8) years in Community Policing, and this is now my third (3) year in a training and mentoring role... so when will I be going". OIC Lane stated words to the effect: "I will follow up with Superintendent Burnage. You will go at some stage you just have to keep asking" (Original emphasis.) 84 In cross-examination, DS Richens clarified the point of the example (noting Constable Astrid Auliciems was appointed to a Constable position) as follows: The role that Constable Orlisiams was offered but didn't get?---Yes. But the point is is that they required a female in the team, and I was a female sergeant, and I had applied for the sergeant's position but found not suitable for reasons unknown. They subsequently required a female in the team, and they asked Constable Orlisiams to move there. 85 I note Constable Auliciems' name was incorrectly transcribed. 86 There were other matters, which were perceived by DS Richens as indications that she was being consciously not chosen for the roles for which she was applying. Superintendent Ian Bate told her, in an email in mid-October 2015: Whilst the positon of Team Leader Client Liaison Team in the CT portfolio is still to be filled I wanted to inform you that the Melbourne Office management team's decision was not to place you in this position as we are keen to give you the opportunity to take on an operational role when one becomes available during 2016. It was the general consensus that giving you an operational role would better provide for you continued development as a Team Leader. Please do not hesitate to contact me if you wish to discuss this any further. 87 A few days later a colleague of DS Richens at Melbourne Aviation, Sergeant Craig Orr, told her he had received a text message from Superintendent Bate offering him the Counter Terrorism Community Liaison Team Leader vacancy. He told DS Richens he declined as he did not apply for it and was not interested in the role. 88 DS Richens received a further rejection when she applied for another position in late October 2015, for which she was interviewed, but received feedback that her responses during the interview were not up to standard. 89 This pattern of DS Richens applying for positions and not being successful continued into early 2016, despite DS Richens also being told there was a shortage of experienced female officers in the AFP's Melbourne Office. The pattern continued into April 2016, despite DS Richens reminding the relevant officers (and (then) Superintendent Neil Burnage in particular) that (in her words) the AFP had given an undertaking to the Fair Work Commission in October 2014 to transfer her into an operational role. Superintendent Burnage told the applicant the following by email in May 2016: I will continue to present your name and credentials at all up-coming HR Committee meetings. Opportunities will also arise for transfer which is subject to advertisement and application, this also forms part of the HR Committee's deliberations. I would encourage you to continue to watch for emails in this respect. 90 In May 2016, DS Richens was offered a position as a Sergeant in the AFP's Operations Monitoring Centre. She described the position in correspondence with another officer (OIC Bradley Lane) as one which involved "assessing new jobs against the CCPM and allocating them to teams to investigate", and told OIC Lane, who offered her the position, that it was an administrative and not an investigative role. She was not challenged on this evidence. DS Richens rejected the offer. 91 The lack of transfer opportunities to the kind of investigative role she wanted continued for DS Richens well into August 2016, notwithstanding matters such as her achievement of an Executive Dean's Award for her academic performance in her Master of Terrorism and Security Studies. OIC Lane reassured her that her transfer to the Melbourne Office continued to be supported, although DS Richens deposed that she did not feel supported at all. Again, I accept that when she swore her affidavit in October 2017, this was DS Richens' genuine recollection of how she felt at the time. 92 DS Richens filed her complaint under the FW Act with the Federal Circuit Court on 24 August 2016. 93 By November 2016, nothing had changed from DS Richens' perspective. She gave evidence of the following statements during a conversation with Superintendent Martin Goode on 15 November 2016: "I'm aware of your "situation" but not the intricacies - just that you have a matter in the "system", and "Commander Beveridge will not be facilitating any transfers of Team Leaders until Co-ordinator positions are determined in 2017", and "Other Sergeants will also be transferring from the airport, I'll keep you informed on the process but not advise you who and when another Sergeant will be transferred". I stated words to the effect: "My transfer has been continually re-prioritised and I feel unsupported", and "I've been continually placed in a position of structured redundancy", and I have my Masters and full qualifications for CT yet am retained at the airport which offers me nothing for my resume", and "I was recently found as requires development after a Band 8 interview", and "My experience now 3 years older than everyone else. I'm no longer competitive for opportunities and no longer have the same opportunities as other people", and "I'm treated differently to other Sergeants transferring", and "The situation causes me to need time off work", and "Commander Beveridge telephoned me in September 2016 and stated that he was transferring people in October / November 2016 however that's never occurred", and "There are a number of Constables on long term higher duties in Sergeants roles in Melbourne Office". Superintendent Goode acknowledged that I was over skilled for the Melbourne Airport and stated words to the effect: "I feel your frustration - the issue can't go on indefinitely". 94 DS Richens exhibited contemporaneous notes she took of this conversation. She was not challenged on this evidence. I accept a conversation with Superintendent Goode occurred on 15 November 2016. Superintendent Goode's affidavit evidence also exhibits some notes that he took of that conversation. He states he did not agree with certain statements made by DS Richens during that conversation, but did not deny the particular terms of the conversation. He was not required to attend for cross-examination. This is another example of evidence left by both parties at a level of dispute and inconsistency, without cross-examination. 95 In his affidavit, Superintendent Goode contended that the "work at the airport is challenging and provides Team Leaders with an excellent platform to move on to other more intensive supervisory investigation roles". It did not appear to have had this effect for DS Richens. 96 DS Richens had her Master's degree in Terrorism and Security Studies from Charles Sturt University conferred in December 2016. She had still not been transferred. She received another Executive Dean's Award for outstanding academic achievement. 97 Just before Christmas in 2016, Commander John Beveridge called DS Richens to inform her about some upcoming vacancies at Team Leader level, some in Counter Terrorism, and some in other areas. When she expressed her preference for Counter Terrorism, he asked her how she felt about working with Commander Hurst, who was at that stage Commander of the Counter Terrorism unit. DS Richens replied that she would behave professionally. However, during the period of February-May 2017, on DS Richens' own evidence (on which she was not challenged in cross-examination) more officers were transferred to Counter Terrorism, and she was not. Some were at lower levels of seniority and experience than her. 98 DS Richens deposed, and was not challenged in cross-examination, that from early March 2017 she began hearing from other AFP officers, mostly junior to her, that she was to be transferred to Crime Operations. She expressed her reluctance to take on such a role. She also deposed to another female officer being informed she was to be transferred to Counter Terrorism, despite her not wanting to be transferred. 99 The AFP objected to some of this evidence on the ground of hearsay, where it concerned statements attributed to other officers not called as witnesses. I consider the statements admissible for the fact they were made to DS Richens and appear to have affected her state of mind, and her perception of being unfairly treated. The truth of the statements is not relevant to any of the six claims of adverse action now made. 100 In May 2017, DS Richens was informed she would be transferred to the Counter Terrorism Community Liaison Team, which she considered was not an investigative role. She protested to a number of people, including Commander Beveridge, about this proposed transfer. However, as it turned out, in mid-May 2017, DS Richens was informed she would be transferred to the AFP's Organised Crime and Cyber - Joint Task Force. This was an investigative role, and she accepted the transfer, commencing on 5 June 2017. 101 By this stage, her FW Act complaint was almost ready for trial in the Federal Circuit Court.

[15]

DS Richens' allegations 102 The terms of the applicant's originating application were, to say the least, brief. In written opening submissions filed prior to trial, the allegations were set out in more factual detail. They were not tied in any ordered way to the provisions of the FW Act. In its opening written submissions the AFP identified 17 allegations it contended were being made by the applicant, and framed its response around those 17 allegations. In his opening oral submissions at trial, counsel for the applicant stated he would not "quibble" with the AFP's characterisation, although - as I set out below - he then put the case rather differently during the rest of his opening. Contrary to some suggestions in the AFP's closing written submissions, I do not accept the applicant's counsel adopted these 17 categories in his opening submissions, and there is no basis to hold the description of the applicant's claims to how they were categorised by the AFP. 103 In oral closing submissions, and with the greatest of respect to the applicant's counsel, it was challenging for the Court to identify what facts the Court was asked to find and how they were contended to fit with alleged contraventions of the FW Act. There were many exchanges between the Court and counsel during oral closing submissions which were designed to have the applicant identify how her case was put. That exercise was not successful. Counsel for the applicant assured the Court (and the AFP) that these matters would be clarified. The Court's expectation was that this would occur in closing written submissions. Contrary to the AFP's closing written submissions, it was not the Court's understanding that any new or separate document was to be filed by the applicant ahead of closing written submissions. However it is also true that by the conclusion of the applicant's closing oral submissions, many if not most of the core aspects of the applicant's claims had not been clarified. 104 When DS Richens' closing written submissions were filed, they did clarify how her claims were put, but they presented a rather different approach to the applicant's case. It is unclear whether counsel prepared the applicant's closing written submissions, as they are not signed by counsel. In correspondence to the Court on 15 and 22 February 2019 the applicant's solicitors indicated that the applicant's closing written submissions were being drafted with the assistance of different (and more senior) counsel to the counsel who appeared for the applicant at trial. However, it is not possible for the Court to know who prepared the submissions, and in what circumstances. 105 However, in general terms at least most of the key factual events and conduct upon which the applicant bases her case have not altered. Rather, the characterisation of those events and conduct, and how they are contended to fit within the provisions of the FW Act, is what has been rather fluid, and not clarified until closing written submissions. 106 I accept the difficulties this has caused the AFP, although as I said earlier in these reasons, the AFP is well-resourced and has been able to respond to what the applicant has put, and has not asked for more opportunities to do so, save for short extensions on closing written submissions, which were granted. There were other circumstances which resulted in the AFP needing an extension of time, unrelated to the way the applicant put her case. In particular, as I have noted, the factual events on which the applicant placed reliance have been tolerably clear all along. 107 Accordingly, the fluidity of the applicant's case reached its inevitable end point with her closing written submissions. It is the case put in those closing written submissions which the Court will rule upon. However, notwithstanding the fluidity, there were certain features of the way the applicant's case was opened at trial which I consider have always been at the forefront of her evidence, and of her allegations, and those matters should also be set out to fairly represent her allegations in their proper context. 108 Although there are now six discrete allegations of contravention, it is also important to bear in mind that what the applicant's case raises, clearly enough I am satisfied, is a pattern of treatment of her which has its origins in two matters: the fact she is in a same-sex relationship, and the fact that she has continued to complain about AFP decision-making concerning her employment. 109 In oral opening submissions, the applicant's counsel began by outlining four matters that the applicant says affect an employee the most: Your Honour, the applicant opens her case by submitting that there are four most significant issues that face any employee. Firstly, where you live and the impact on your personal life. Secondly, what work you are performing and the scope for your career and professional development. Thirdly, how you, as an employee, are assessed, which is linked to pay, opportunities, promotion. And fourthly, your Honour, to be in a workplace that's safe, not just from an occupational health and safety perspective, but in a workplace that's conducted lawfully and, relevantly, in a non-discriminatory manner in a way which complies with the existing law. 110 From this general categorisation flowed, the applicant's counsel submitted, the particular conduct forming the adverse action against the applicant. In opening, the narrative was described as involving a "before and after" scenario: the applicant contends her previously solid mentoring relationship with Commander Hurst broke down after she commenced a relationship with her current partner, SC McPherson. Counsel for the applicant submitted that the applicant had always been seeking operational positions, in particular investigative roles, and, indeed, this was the intended outcome of the Fair Work Commission process. Counsel submitted the AFP was to identify an operational role for the applicant, but that this never happened.

[16]

First claim: proposed transfer from Canberra to Melbourne (January-May 2013) - adverse action because of the exercise of a workplace right 111 This claim of adverse action is put on two different bases. First, the adverse action is alleged to have occurred because of DS Richens' exercise of a workplace right to withdraw her transfer application. This is alleged to be a contravention of s 340 of the FW Act. Second, it is alleged to have occurred because of Commander Hurst's disregard or disapproval of DS Richens' same-sex relationship with SC McPherson. This second aspect relies on s 351 of the FW Act. 112 The claim concerns a series of events and decisions about whether DS Richens would be able to transfer from Canberra to be with her partner, SC McPherson. Initially, DS Richens applied to transfer to a position in Brisbane, where SC McPherson was then located. Commander Hurst arranged for a transfer to Brisbane to a temporary position. DS Richens was not content with a temporary position and did not accept the transfer, and instead applied for and was offered a transfer to a role in Melbourne. SC McPherson also applied to transfer to Melbourne, but was not successful. That event appears to be part of what caused DS Richens to decide not to go to Melbourne. The adverse action is alleged to be that, on making that decision, DS Richens was told by Commander Hurst that there was no longer a role for her in Crime Operations in Canberra, although DS Richens contends Commander Hurst had previously assured her that her role in Crime Operations could continue if she did not transfer. Instead, DS Richens alleges Commander Hurst forced her to apply to the NPSC for a transfer out of Crime Operations in Canberra. As a result of this, DS Richens ended up being transferred to Learning and Development, into a position she alleges she never wanted and which has hampered her career advancement. 113 The adverse action is alleged to be not keeping the Canberra Crime Operations position available for DS Richens and instead moving her to Learning and Development. This is contended to have "injured" DS Richens in her employment, because it adversely affected her short-term and long-term career. It is also alleged to have altered DS Richens' position to her prejudice because it took her out of an active investigative role. 114 The persons alleged to have engaged in the adverse action are: Commander Hurst, in terms of not adhering to her assurance to DS Richens that she could return to the Canberra Crime Operations role if she did not transfer away from Canberra, and requiring DS Richens to apply to the NPSC; and four members of the NPSC, in terms of their decision to place DS Richens in Learning and Development in Canberra. Precisely how the June 2013 NPSC decision is drawn into this first claim is a matter to which I return later in these reasons. 115 The workplace right identified by the applicant as the reason for the adverse action was her right to withdraw her transfer application. The applicant contends she had a workplace right to apply for a vacancy by her transfer application in January 2013, and then again in March 2013 (when she formalised her application), which transfer applications she alleges she also had a right to withdraw. 116 As I have noted, there is a second reason alleged for the adverse action: namely a disapproval of DS Richens' same-sex relationship with SC McPherson, or alternatively, a refusal to equate that relationship with the relationship enjoyed by heterosexual partners who are AFP officers.

[22]

The applicant's claims of loss summarised 137 DS Richens claims both economic and non-economic loss, as well as declaratory relief, and the imposition of penalties against the AFP, which she submits should be ordered to be payable to her. The latter forms of relief were not the subject of her closing written submissions, which only concerned her claims for compensation. However, it appeared to be common ground at the start of the trial that if the Court were to uphold any or all of DS Richens' allegations of contraventions of the FW Act, insofar as those allegations concerned a provision which was a penalty provision, the question of the imposition of penalties should be dealt with separately, and subsequently to the remainder of her claims. The Court has proceeded on that basis. 138 In oral opening submissions, counsel for the applicant made it clear she also did not press any form of mandatory injunctive relief relating to requiring the AFP to transfer her to a Team Leader role in Counter Terrorism. 139 There are six heads of compensation which are claimed. They are: (a) Loss of Higher Income: $400,000.00 (b) Cost of Dual Living Expenses: $6,253.00 (c) Annual Leave and Personal Leave: $107,334.00 (d) Airfares and Travel Expenses: $6,253.62 (e) Relocation Expenses: $75,932.39 (f) Hurt, Humiliation and Injury to Feelings: $100,000.00 SUB-TOTAL: $695,773.01 (g) Interest on the compensation (as at 25 February 2019): $173,011.59 TOTAL: $868,784.59 (in fact, this adds up to $868,784.60) 140 I deal with these claims in more detail below. In this part of my reasons it suffices to set out a brief description of how these claims are put. 141 The "loss of higher income" claim is put on the basis that several of DS Richens' claims involved denial of an opportunity for promotion and/or a liaison officer posting. She contends: Absent the adverse action by reason of the redeployment Richens into a non-operational area, the applicant would have continued to maintain her role as an investigator and develop appropriate skills that may lead to a promotion or at the very least higher duties. Given that in previous investigative roles Richens had been given a period of higher duties as a Superintendent, on the balance of probabilities the applicant submits that such a promotion would be likely to have occurred but for the adverse action in placing her in a non-operational role not only in learning and development on a fixed term period of two years but also in relation to the deployment of the applicant to Melbourne Airport (another non-operational role). 142 DS Richens also claims that her previous performance assessments, positions held and posting offers suggest she would have received promotions or higher duties appointments in the usual course. She sets out in detail her attempts to secure promotions and investigative roles. For her calculations she relies on her documentary record of the positions she has held, the favourable assessment she had previously been provided for liaison officer postings, a payslip showing the salary and additional allowances she received when performing higher duties, and the terms of the AFP Executive Level Enterprise Agreement 2011. The AFP disputes that the applicant is able to rely on some of these documents, which were the subject of an earlier agreement between the parties that they would not be tendered. I address this issue in more detail below. 143 The "annual leave and personal leave" claim is put on the basis that it was the alleged adverse action of the AFP which caused DS Richens and SC McPherson not to be able to co-locate, and for DS Richens to have to use her annual leave to see her partner. This also appears to be the basis for the claim for "airfares and travel expenses". 144 For her claim to "relocation expenses" for when she moved to Melbourne, the applicant relies on the AFP Permanent Transfers Relocation Handbook, the AFP Application for Rent Assistance, cl 63 of the AFP Enterprise Agreement 2012-2016 (which I refer to in these reasons as the "AFP Enterprise Agreement") and the record of a dispute she raised under cl 70 of that Enterprise Agreement seeking relocation costs. She also sought to rely on evidence about other AFP officers to whom relocation payments have been made, and who were in what she contends to be comparable circumstances. The applicant also contends she raised this claim before the Fair Work Commission, as part of the conciliation conference negotiations and the proposal that she transfer to an investigative role in Melbourne, and contends that Mr Turner did not indicate she would be ineligible for such a payment. The AFP makes similar submissions about some of these documents having been the subject of an agreement between the parties that they would not be tendered. 145 The "cost of dual living expenses" claim is put substantially on the same basis as the leave claim: in other words, the applicant contends that the adverse action was responsible for her and SC McPherson having to live in different cities, and therefore incur two sets of living expenses rather than one. 146 The claim for non-economic loss (the "hurt, humiliation and injury to feelings" claim) is based on allegations DS Richens has suffered psychological damage, and is having regular and on-going psychiatric treatment. She contends the evidence discloses the adverse action has caused her very high levels of distress over a number of years. 147 DS Richens emphasises that none of her evidence on compensation/loss and damage was subject to challenge in cross-examination. 148 It is appropriate also to extract from DS Richens' October 2017 affidavit her description of how the treatment she alleges she has received from the AFP since 2013 has affected her. I note the AFP objected to this evidence on the ground it is opinion evidence about matters which are ultimately for the Court to determine. I consider the evidence is admissible as evidence of the applicant's state of mind, and is relevant to the assessment of any compensation to which she might be entitled if her claims were upheld. DS Richens stated: As a gay female in the AFP I have felt completely unsupported and that the AFP Values in employment do not apply to my family unit, partner, and career. The AFP has copious policies, procedures and support networks in relation to reporting inappropriate workplace behaviour, which I personally recognise as very different to reasonable managerial action. For the first time in my career I accessed, trusted and utilised these avenues to seek constructive resolution. As a result my family, lifestyle, and career have been subject of adverse action and discrimination because I made complaints about my employment. The issues detailed in my affidavit have dominated my life over the past four (4) years, jeopardised my career, and caused psychological harm. The AFP have damaged my confidence, self-esteem, resilience, reputation, depleted my ability to overcome and cope with normal setbacks by persistently treating me differently because l made a complaint, damaged my mindfulness and wellbeing, strained many personal relationships, and destroyed many professional relationships that I previously had without those people having to consider how their career or life may be affected if they try to help or are simply seen to be my friend. The issues in my affidavit have cost me financially through paying for legal representation, keeping me separated from my partner for over 3 years causing dual living expenses and exhaustion of my leave, diminishing my career and making me unsuitable for promotions and postings that peers of the same vintage have enjoyed, and refusing to acknowledge and appropriately utilise my qualifications that have cost me through time and university fees. I have not been afforded protection in my employment from the AFP. I have been unable to fully trust and embrace the cultural reform publically broadcast by the AFP put in place by the Broderick Review of the AFP as I have been enduring pain and suffering since 2013. I genuinely believe that my career in the AFP can never be restored to what it was in 2013 prior to making this claim. For the remainder of my employment with the AFP I am deeply concerned that I will have less opportunity, never be promoted, never receive higher duties, never be posted offshore, be limited in training and never work where I am qualified. My reputation will never be the same, management will continue to treat me how they think the AFP should treat whistle blowers, and some colleagues will continue to disassociate with me out of fear. This experience has very sadly caused me to consider options that l had never before contemplated. I have continually tried to rectify my grievance through internal mechanisms. The AFP does not intend to provide meaningful resolution to my employment complaint in the absence of external intervention.

[30]

The relevant legislative provisions 164 The following extracts of the applicable provisions are from the version of the FW Act relied on by the parties at trial. Section 340 of the FW Act provides: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4‑1). 165 Section 341(1) provides: 341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. 166 Section 12 provides the definition of "workplace law": workplace law means: (a) this Act; or (b) the Registered Organisations Act; or (c) the Independent Contractors Act 2006; or (d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters). 167 Section 342(1) relevantly provides: 342 Meaning of adverse action (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by ... if ... 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer.

[31]

168 Section 351 provides: 351 Discrimination (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) Each of the following is an anti‑discrimination law: (aa) the Age Discrimination Act 2004; (ab) the Disability Discrimination Act 1992; (ac) the Racial Discrimination Act 1975; (ad) the Sex Discrimination Act 1984; (a) the Anti‑Discrimination Act 1977 of New South Wales; (b) the Equal Opportunity Act 2010 of Victoria; (c) the Anti‑Discrimination Act 1991 of Queensland; (d) the Equal Opportunity Act 1984 of Western Australia; (e) the Equal Opportunity Act 1984 of South Australia; (f) the Anti‑Discrimination Act 1998 of Tasmania; (g) the Discrimination Act 1991 of the Australian Capital Territory; (h) the Anti‑Discrimination Act of the Northern Territory. 169 Section 361 provides: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction.

[33]

Objections and rulings 171 Initially, objection was taken by the AFP to a number of specific documents on which the applicant sought to rely. Broadly, these were documents relating to some of the applicant's tasks on projects being conducted by the AFP under Australia's mutual assistance obligations with other countries. No more need be said in these reasons than that. 172 Objection was made relying on s 43C of the Mutual Assistance in Criminal Matters Act 1987 (Cth), a provision inserted by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth), and also on the basis of public interest immunity (relying on s 130 of the Evidence Act 1995 (Cth)). 173 During the course of the trial, it became apparent that the details contained in these documents were unnecessary, and irrelevant, to the claims which the applicant sought to press. Counsel for the applicant properly accepted that to be the case. Therefore, no rulings on the AFP's objections were required, but some agreed redactions were made to some documents which remained in the Court Book. 174 There were also some orders made prior to trial by Registrars Luxton and Ryan relating to objections to subpoenas issued by the applicant to individuals to give evidence, and a request initiated by the applicant to set one of those subpoenas aside. Further, an application was subsequently made during the trial for Commander John Bourke to be excused from complying with a subpoena addressed to him dated 23 August 2018. 175 The respondent's interlocutory application to set aside the subpoenas issued by the applicant to Commander Bourke, Commander Michael Chew, Senior Constable David Koster and former Sergeant Hall was dismissed pursuant to Registrar Luxton's orders of 18 September 2018. The subpoena addressed to SC Koster was subsequently set aside, at the initiation of the applicant, by Registrar Ryan's orders of 6 December 2018. In reasons I delivered ex tempore on 14 December 2018, the fifth day of the trial, I set aside the subpoena issued to Commander Bourke with immediate effect, in light of evidence which had been put before the Court by his legal representatives, the Australian Government Solicitor.

[34]

Other evidentiary issues 176 In its opening written submissions, the AFP stated it had filed 50 affidavits on behalf of 40 witnesses. In its closing written submissions, the AFP noted that 14 of those witnesses were ultimately cross-examined, and that it had read affidavits of a further 23 witnesses. 177 The Court had indicated to the parties during case management that if the parties wished the trial to be by affidavit (which they did, and indeed that was the way the trial had been prepared in the Federal Circuit Court before its transfer to this Court), that any evidence on matters which were to be central to the applicant's allegations or the respondent's defence, and involved issues of credibility or reliability, was to be given by way of oral evidence. The parties accepted that approach, and what follows is a summary of what occurred at trial in that respect. 178 On 8 May 2018, an order was made requiring the applicant to file: …a joint agreed note of the topics or aspects of the evidence where reliability or credibility will be in issue and, in relation to each witness, which topic or topics of their evidence should be adduced orally in chief. 179 That joint agreed note was filed on 15 October 2018. The note indicated that evidence would be adduced orally in chief from witnesses on the following topics, where reliability or credibility would be in issue: (a) Reasons for any decision made by the Respondent relating to any and all of the following: (i) the proposed transfer and transfer of the Applicant from any AFP role to any other AFP role, and conditions and decisions made associated thereto; (ii) annual leave and long service leave arrangements and decisions concerning the Applicant, in particular, but not confined to, decisions made concerning conditions related to the granting of such leave; (iii) redeployment of the Applicant out of Crime Operations; and (iv) National Placement Sub-Committee processes, deliberations and decisions including deliberations and decisions to place or not to place the Applicant in Counter-Terrorism. (b) Reasons for decisions concerning: (i) Performance Development Agreement processes and assessments of the Applicant; and (ii) the subsequent review processes initiated by the Applicant. (c) Following institution of proceedings by the Applicant in the Fair Work Commission (the FWC) in 2014, reasons for subsequent decisions and actions by the Respondent about the implementation of the FWC outcomes, and all related and consequential issues concerning the non-payment of relocation costs and reasons for decisions related to the placement and transfer of the Applicant in the Melbourne area not confined to Counter-Terrorism. (d) Reasons for any other decisions or actions that the Applicant alleges by way of this Proceeding amount to adverse action by the Respondent (eg alleged discrimination between the Applicant and Sergeant Lamont given the latter's placement in Counter-Terrorism). (Original emphasis.) 180 The note identified, on behalf of the applicant and the respondent, each of the witnesses from whom such evidence would be adduced orally in chief (where applicable). 181 This approach was broadly adopted during oral evidence. 182 During case management, the Court also indicated to the parties that as a general approach, it would be preferable that the parties make submissions about the weight to be accorded to particular evidence, rather than traverse the enormous amount of affidavit material and take objections on a line by line or paragraph by paragraph basis. It was apparent that, particularly in the applicant's material, there was likely to be quite a lot of statements which could properly be the subject of an objection. To deal with the objections on an item by item basis would have taken days, and would have been a disproportionate and inefficient use of the Court's and the parties' resources. 183 Accordingly, the AFP attached to its opening submissions a table of objections which it accepted would not be the subject of individual rulings in advance but which was said to be a "repository of the matters within the applicant's evidence to which the court, with respect, must not have regard". Where necessary in these reasons, I have taken the contents of that table into account, and I have indicated the view I have taken on particular evidence to which the AFP objected, if I have expressly relied on that evidence. 184 The applicant sought to tender and rely upon the Broderick Report. The full title of the report, by former Sex Discrimination Commissioner Elizabeth Broderick, is "Cultural Change: Gender Diversity and Inclusion in the Australian Federal Police". The applicant's opening written submissions extracted parts of that report, dealing with the circumstances facing female officers in the AFP. The applicant's opening written submissions at [5] stated she would "rely on the entirety of the report and tender the report at trial". The AFP objected to the tender of the report on the ground of relevance, but also contending the purpose of the tender would be as tendency evidence: see footnote 64 to the AFP's opening written submissions. As it turned out, there was not a single reference to the Broderick Report in the applicant's closing written submissions. Without any specific submissions, it is not possible to see the contents of the report (if otherwise admissible, which I assume for present purposes) as tending to prove any fact in issue, or facts relevant to any fact in issue. Therefore, on the applicant's case as put in her closing written submissions, the Broderick Report is irrelevant and should not form part of the Court's evidentiary record of the trial. An order has been made to that effect. 185 The applicant made no objections to the AFP's affidavit evidence.

[36]

DS Richens' evidence 190 The affidavit evidence filed by DS Richens was substantial, and the contents of the affidavits were highly detailed. Having now read and listened to how those within the AFP who have worked with DS Richens, or supervised her, describe her, the way her affidavits were composed is consistent with those descriptions. She is a person with considerable attention to detail, which is no doubt often a positive attribute for an AFP officer. However, in her evidence in this proceeding, it has led her to focus on minutiae, and then to interpret the minutiae in a way that an objective assessment of events, or communications, might not support. 191 Many examples could be given, but for the purpose of supporting the observations I make, I refer to the following. At [40]-[41] of her first substantive affidavit, where she describes her first attempts to transfer from Canberra to co-locate with SC McPherson, DS Richens gives the following evidence: In mid-January 2013 I spoke to Commander Hurst and requested a permanent transfer to Brisbane Office. I told Commander Hurst about Emma. I provided Commander Hurst an email from Manager Brisbane Office Commander Mark Walters (Commander Walters). This email identified Sergeants vacancies in Crime Operations Brisbane. These positions fell within Commander Hurst's business area and delegated powers to directly assign me. Commander Hurst declined stating Brisbane Office had a merit list of suitable Constables to promote to the Sergeants vacancies in Crime Operations Brisbane. Her advice was unsupportive. The same email identified a backfill opportunity for a Sergeant in Crime Operations Brisbane Office. Commander Hurst agreed, however imposed conditions that the position was non-ongoing for an indefinite period of time, she could not guarantee me an operational position upon my transfer back to Canberra, I would not be entitled to living away from home allowances, and the relocation or storage allowance of my personal belongings would be set at $5,000. I sought advice from the AFP Employee Relations Team and then declined the backfill. (Original emphasis.) 192 When the email correspondence to which DS Richens refers (being Exhibit KR-5) is examined, it does not convey the kind of attitude from Commander Hurst that DS Richens' evidence might lead one to expect. Rather, Commander Hurst's correspondence is positive but firm and pragmatic, as one would expect from an officer in her position. Further, the tone of DS Richens' own emails is rather more grateful to Commander Hurst than her affidavit evidence might suggest. For example, this was DS Richens' email to Commander Hurst on 14 January 2013, informing her she had accepted the Brisbane transfer, but asking a few questions: Hello Ma'am, Re: DEVELOPMENT TRANSFER TO BRISBANE CRIME OPS I accept the offer of the development transfer to Brisbane Crime Ops, and thank you so much for providing me with this very important opportunity. With regards to the conditions - I have a few things I just want to cover off on please: 1) With regards to the payment of to $5k for removalist / storage, could you please confirm if that is one way of both ways? I checked with relocations team the cost to transfer between Canberra and Brisbane and they suggest $6k one way. I explained that it would not be a full uplift, and they suggested to reduce costs an alternative of driving a truck myself taking the items I need and storing the rest, and transporting my car for approx $900 each way. They are yet to advise the cost of truck hire, however I would be happy to relocate myself that way. I checked costs of 12 months storage and it's approximately $1700. So the car transfer plus the storage costs equate to approx. $3500. Would you therefore be happy to cover the cost of the truck hire for both ways, absorbing the costs of funding my travel to and from Brisbane into that equation? 2) With regards to the accommodation, I anticipate finding a rental prior to transfer. If I can achieve this would I please be able to use the accommodation allowance to cover the bond payment (which would be refundable at the end of the lease)? 3) With regards to my return to Canberra, I accept this will be into a position which would not be identified until closer to my return, however could I be assured that I would at least return with the same salary conditions (IE: to a position where I will retain my composite allowance). This is important as I have two mortgages. I look forward to your reply. Kind regards, Kath 193 Commander Hurst's response was: Hi Kath I am very pleased that you have accepted this development opportunity. In regards to the below questions: 1. The funding would be $5,000 in total for the removal/storage - from the figures below would the $5,000 cover that?? 2. Not sure that we can pay the bond - can you check with relocations team and if that is Ok -then we can make that arrangement 3. Unfortunately, I cannot guarantee a composite on return - I can guarantee your same salary level; but could not guarantee your move into a position that receives a composite - it will depend on where the vacancies are when you are returning Can you come back to me on these things so I can write it into a Minute 194 DS Richens was clearly unhappy with this response, and replied: Hello Ma'am, I will wait for relocations to come back to me with the costs for trucks, and ask them regarding the bond. With regards to the return position, the option of potentially no composite is a massive risk for me financially. Would a permanent transfer to Crime Operations in Melbourne still be a viable option to reduce the costs and risks that I have to consider with this current opportunity? Kind regards, Kath 195 To this, Commander Hurst replied: Hi Kath Suggest that we push forward with an EOI to a permanent TL position in Melbourne as I cannot guarantee a composite position on your return to Canberra from Brisbane. You can send the EOI through to me and I will discuss with Scott LEE 196 In my opinion, what has happened through much of DS Richens' affidavit evidence, is that she has viewed events through the prism of this litigation and her keen sense of injustice which she carries, from her perception of how she has been treated. That is a very human thing to do, and I do not criticise her for it. However, it does mean that I find her account of historical events, including some significant ones, can be at times somewhat coloured by the "case theory" she had after she commenced these proceedings, about what was driving certain AFP officers and decision-makers at various critical times. It has led her to cast certain historical events in a more negative light than they objectively should be cast. That includes, in my opinion, attributing to many AFP officers or employees particular motives and attitudes during many of these historical events, which the objective evidence does not bear out. 197 In one of her early emails to Ms Ryan, the AFP psychologist she was seeing during 2013, DS Richens said the following, after withdrawing from the Melbourne transfer: …so for all I've invested in this organisation I can only hope they eventually support the life balance they promote. 198 This comment is revealing, and consistent with my impression gained from an overall consideration of the evidence, including listening and seeing DS Richens give evidence. She had high expectations of what the AFP would do to facilitate her co-locating with her chosen partner. She also had high expectations of what she could achieve in her career, and when. She also had high standards about what she considered she was entitled to as an AFP officer. She appears to have been constantly disappointed in all three areas. I do not consider that was because any person within the AFP was treating her differently or adversely for a prohibited reason. Rather, it may well be the result of a very large, somewhat rigid (perhaps necessarily so) organisation, and because of opinions and attitudes amongst higher ranking AFP officers that were not the same as that of DS Richens, in terms of where their priorities lay. Perhaps they expected more "sacrifice" from their officers, and less complaining or opposition to what officers were told to do. Perhaps that is what happens in a command structure organisation. In saying this, I make no judgment on such opinions and attitudes: rather, I seek to explain my general impression from the evidence. 199 The impression I have of DS Richens, from the way her affidavit evidence is expressed, including the way she describes particular events, from the factual narrative of the steps she has taken to try to secure a position she considers is right for her, and for her relationship, and from her oral evidence, is that she is a person who is highly determined, and indeed dogged. She has a somewhat rigid view of people and her working world. If there are two ways in which to take something that is said or done, she is likely to take it in a way which is negative, and personally hurtful. These attributes have, in my opinion, somewhat coloured her perception of events directly and indirectly related to her general protections claims.

[37]

Commander Hurst's evidence 200 I did not form an entirely favourable impression of Commander Hurst while she gave oral evidence. I have reflected carefully on that impression, and considered her affidavit evidence. I am not persuaded she was as even-handed and unemotional with DS Richens as her evidence (oral and written) sought to suggest. 201 Rather, I consider she was more annoyed and frustrated with DS Richens than she was prepared to admit in the witness box. I consider it is likely that she did say many of the things DS Richens attributes to her in DS Richens' affidavit evidence. I find it is likely that Commander Hurst was short, brusque and on occasions (given the position as DS Richens' commanding officer) came across as overbearing, intolerant and insensitive. 202 I do not accept Commander Hurst's evidence (at [73] of her first affidavit) that she was, during the events in 2013, concerned about DS Richens' welfare. None of her conduct supports that evidence: she continued to impose requirements on DS Richens, which were what Commander Hurst considered were necessary, but there was no "give" or apparent empathy that might be consistent with a concern for DS Richens' welfare. There was nothing in her email correspondence to suggest any such concern. There was firmness, and pragmatism, but no sympathy or empathy. The communications of Assistant Commissioner Close provide a contrast. In my opinion Commander Hurst had lost patience with DS Richens, wanted her out of Crime Operations, and was not inclined to achieve that outcome in a way that was in any way sympathetic to DS Richens. 203 That said, although I have reflected carefully on the question, I am not satisfied a reason for this behaviour, and this attitude in Commander Hurst, was any view Commander Hurst had about DS Richens and SC McPherson being in a same-sex relationship, or about their sexual orientation. Nor, save for one aspect of DS Richens' first claim, do I accept her treatment of DS Richens was actuated by the reasons attributed to her by DS Richens, relating to transfers, leave and complaints. Commander Hurst had developed a considerable level of antipathy to DS Richens, but the evidence (and the minimalist approach to Commander Hurst's cross-examination) does not enable the Court to identify any comprehensive list of the causes for it. What I do conclude is that no prohibited reason was operative on Commander Hurst's mind in any of the alleged adverse action.

[38]

Resolution 204 As I have noted, in a proceeding with such a volume of evidence, the Court relies on the parties to indicate, in their submissions both oral and written, on which pieces of evidence they rely for findings they contend should be made, or for submissions they contend should be accepted. It is not the Court's function to go trawling through the evidence to see if it can discover evidence which either supports or contradicts a finding of fact one party contends should or should not be made, where the parties have not referred the Court to that evidence. While it may be open to the Court to rely on evidence to which the parties' submissions are not directed, it would usually be the case that some caution needs to be exercised in doing so, if for no other reason than that the parties have not been heard on how that evidence affects their respective cases, or why the Court sees it as important. 205 One other matter should be noted at the outset of this part of the Court's reasons. By the end of the trial, the parties had reached an agreement, which was announced to the Court, about which documents they intended to rely on within the Court Book, and which they did not. That agreement was indicated by the marking of items in the Court Book, which had previously been the subject of some dispute as to their admissibility, by either red or green. Green for reliance and admissibility, red for non-reliance and non-admissibility. During oral closing submissions, it became apparent that even at that stage, counsel for the applicant intended to rely on a document which had been agreed to be marked as red, and not admitted. The following exchange then occurred: MR SNADEN: Only one thing. It was a slightly distressing observation about the court book, and the green and red that we handed up, and that there might be documents in red that, after I gave my oral closing, now want to be put into green. HIS HONOUR: Yes. MR SNADEN: That, as I say, is the source of some distress for the respondent. HIS HONOUR: Yes, I can understand that. MR SNADEN: There has been no application. I simply make that observation. This is what we're going on. The red and the green. HIS HONOUR: All right. If there's one document that's an oversight, that might be in one category. MR SNADEN: It depends what - - - HIS HONOUR: If there's a lot of documents, it might be in another category. MR SNADEN: The problem is I've said what I've said. HIS HONOUR: Yes. MR SNADEN: And now they're trying to address it. That's the concern. MR McKENNEY: Well - - - HIS HONOUR: So the submission goes even to the enterprise agreement. MR SNADEN: Well, I can take instruction on that. There has been no formal closing of the case, and the - I understand that, but I've made oral submissions, and it's not kosher, in my submission, that the applicant - or indeed any party - should, having heard the submission, try and supplement the evidence. MR McKENNEY: Well, your Honour, I'm not trying to supplement the evidence, with respect. It's referred to in a loss and damage. I was unaware, until it was pointed out to me, that that document had been removed, your Honour. It's in the particulars of loss and damage. I'm obviously going to address that issue further. My learned friend will have the opportunity to respond. I don't see how there's any prejudice to the respondents, your Honour. HIS HONOUR: Well, that's why I just made the observation I did, Mr McKenney. If it's one document of that nature, that's one matter, but I don't think it would be fair to permit the applicant to revisit the forensic decisions that have been made by the production of that table in any wider sense than that. MR McKENNEY: And your Honour, I've not suggested that, and I don't - and I'm not - and I have not suggested that, your Honour. HIS HONOUR: All right. So the only proposal from the applicant is that that one document - the AFP Executive-level Enterprise Agreement 2016-2019 be moved into the green category, if I might call it that; is that right? MR McKENNEY: Yes, your Honour. Yes, your Honour. 206 That is how the matter was left. The Court was clearly told no further document which had been identified as marked in red would be relied on by the applicant. Then, when closing written submissions were filed, the applicant went back on the position put to the Court. Perhaps that was inadvertence. No formal application has been made for documents to be admitted which had been previously withdrawn, in circumstances where the AFP had relied on the agreement reached between the parties. Instead, an email was sent to Chambers "requesting" the Court consider some of the documents the parties had previously agreed would not be tendered. I do not propose to consider any such documents: to do so would be procedurally unfair to the AFP, and it would be allowing the applicant to conduct her case contrary to the position previously put to the Court. There must be finality, and certainty in what evidence parties rely upon. In an approach which was already generous and favourable to the applicant on questions of admissibility, that point was reached during oral closing submissions. Where necessary below, I refer to those documents in these reasons. However, to be clear, any document to which the applicant has referred in her closing written submissions which is one which had been previously agreed to be not pressed for admission in evidence, has not been considered by the Court and does not form part of the Court's record at trial. To clarify that position, an order has been made to that effect.

[39]

The themes underlying DS Richens' allegations 207 In Baird v Queensland [2006] FCAFC 162; 156 FCR 451, Allsop J (as his Honour then was) emphasised at [17] the need for a court to understand the substance of what is alleged by a party, by having regard to the context, and not only the form, in which such allegations are made: The pleading is to be understood in its context. It is not to be read divorced from counsel's opening and how the case was otherwise litigated. This is not to say that the pleadings are other than central to understanding what was fought below and thus what can be raised on appeal. But to the extent that context may cure or ameliorate ambiguity or lack of clarity, it is not to be ignored. 208 His Honour also made the following observations (at [25]-[29]) regarding the claims made in that case in reliance on s 9 of the Racial Discrimination Act 1975 (Cth): A number of matters appear to flow from, and can be said in consequence of, the above outline of the presentation of the case. First, read in their context, the amended application and the Consolidated Statement of Claim contain a case based on s 9 of the RD Act not dependent upon any finding that the appellants were employed by the State. Secondly, the case put forward was in effect that determining and paying the grants in the amounts that were fixed had the effect of at least impairing the enjoyment of a relevant human right (the right to equal pay for equal work, by reference to applicable award rates) because the grants did not permit or did not enable the Church to pay award rates or because the grants effectively determined the amount to be paid in wages by the Church. Thirdly, the reference to the payments of the grants as the "acts" for s 9 incorporated, from time to time, notions of decisions concerning how the grants were calculated. The primary case of the appellants was to the effect that the State in fact and in practical reality calculated the amount of the wages to be paid in the calculation of the grants. This threw up for consideration, as a central issue in the case, how the grants were calculated and the relationship between the calculation and payment of the grants and the payment of below award-wages. Fourthly, there was a degree of imprecision and confusion in the identification of the distinction, exclusion, restriction or preference for the purposes of s 9(1) and the relationship of such with race. What can be said, it seems to me, is that within the pleading and submissions can be found the assertions that the acts of calculating and paying the grants involved taking into account that the funds would be required to fund below-award wages as distinct from award wages and that the calculation of the grants was made on that basis. This occurred, so it was said, because the ultimate recipients of the below-award wages were Aboriginals. Fifthly, in fairness to the pleader, some of the difficulty in enunciating how the case fits into s 9 on the hypothesis that the State was not the employer of the appellants can be seen to flow from the almost elusive simplicity of s 9(1), the content of which can be described as "vague and elastic": see Gibbs J in Gerhardy v Brown (1985) 159 CLR 70 at 86. Nevertheless, what was thrown up for debate and consideration were the calculation of the grants, the relationship between the amounts of the grants fixed upon and paid, the payment of below-award wages, the reasons why the appellants were paid below-award wages, and why the amounts of the grants were calculated as they were. 209 In Wotton v Queensland (No 5) [2016] FCA 1457; 157 ALD 14, I stated the following (at [64]) in reliance on the above excerpt from Baird: Although, especially in a large and wide-ranging proceeding such as this, it is important to hold a party to the party's 'case' (including, as a cornerstone, the pleadings), in order to do justice between the parties, the Court must strive to ascertain, as Allsop J put it, what is "thrown up for debate and consideration" by the case as it has been framed. 210 I have taken these principles into account when considering the allegations made by DS Richens. Indeed, they were taken into account in the way the Court permitted the applicant to conduct her case during and after trial. However, there is a point beyond which the fluidity and lack of clarity in the allegations made by DS Richens cannot be accommodated within principles of this kind. 211 At [90] of her October 2017 affidavit, DS Richens deposes: Emma and I were unsupported by the AFP in our relationship status regarding our co-location. Vacancies were available in Melbourne and Canberra for both of us in our specialist roles but the AFP did not recognise or value our relationship status and we were treated differently to others who enjoy a work-life balance in their chosen career. 212 The AFP objects to this as opinion evidence but I admit it only for its purpose in proving DS Richens' perceptions. 213 I accept this is an accurate and honest reflection of what DS Richens perceived, by October 2017, to have been wrong about the AFP's decision-making. The difficulty for DS Richens in this proceeding, however, is at least three-fold: (a) the AFP has offered her many opportunities; they have just not been on the terms which she was happy with, or in positions which she most wanted; (b) there is insufficient evidence for the Court to be satisfied on the balance of probabilities that she has been treated differently because of her sexual orientation, or the fact of she and SC McPherson being in a same-sex relationship with each other, where the comparator appears to be AFP officers in heterosexual relationships. I make that finding being cognisant of the effect of the reverse onus in s 361 of the FW Act; and (c) the provisions of the FW Act upon which DS Richens relies do not require or authorise any general inquiry by the Court into the fairness, or unfairness, with which an employee has been treated. 214 There is ample evidence, much of which was not challenged by the AFP, about the considerable attempts made by both DS Richens and SC McPherson to find positions which would enable them to live and work in the same location, and would deliver the job satisfaction and opportunities for advancement in the AFP which they sought. That aspiration is a perfectly reasonable one for a couple to pursue. One view of the evidence is that the harder DS Richens tried to achieve that outcome, the less accommodating the AFP became. 215 There may be many explanations for any increasing resistance by the AFP to DS Richens' attempts to transfer, and many of those explanations may not involve any prohibited reasons under the FW Act. DS Richens' own evidence discloses something bordering on an obsession with securing a position she considered was appropriate. I am prepared to infer, on all the evidence, that what became an obsession affected her ability to perform her job. Indeed, as the claims made by DS Richens in this proceeding show, that obsession - and her distress when she could not achieve the outcomes she wanted - was responsible for her taking a great deal of leave. To say as much is not to be critical of DS Richens, but rather to observe that was the factual situation the AFP hierarchy had to deal with. Individuals such as Superintendent Stokes and OIC Lane appear to have done their best to assist and support DS Richens. It must have been obvious to all those within the relevant hierarchy of the AFP who had to interact with DS Richens that she was distraught by her circumstances. It must have been obvious to Mr Turner, who apparently at the Fair Work Commission agreed on behalf of the AFP to try to find positions both suitable to her and within the AFP's operational objectives. That appears to have been a task that could not be completed in the way the parties might have thought when they agreed on this outcome at the Fair Work Commission. 216 While I am not satisfied on the evidence that any of the AFP's conduct under the six claims constituted adverse action contrary to s 340 or s 351, I am satisfied the AFP, as an institution and an employer, and individual officers such as Commander Hurst and Superintendent Booy, could have adopted a more proactive and supportive approach to achieving the co-location of these two women. In an organisation the size of the AFP, I do not accept that was an impossible or unreasonable task. There appears to be have been a rigidity, and a lack of understanding and compassion, at work. In the latter part of the relevant chronology, and in particular since around 2015, there appears to have been something approaching a stubbornness not to appoint DS Richens to any of the positions for which she applied, or expressed interest, or might otherwise have been suitable. These matters do not reflect well on the AFP as an employer. Perhaps there were aspects of the fact that the two women were in a same-sex relationship which led to some unconscious bias within the AFP - that is one possible explanation. Perhaps the dogged nature of DS Richens' general complaints and the way she agitated for different positions was irritating for those in a position to make decisions about placement. Perhaps she was not as compliant as an AFP officer is expected to be. There is an insufficient evidentiary basis for any of these matters to be found as facts on the balance of probabilities, largely because of how the applicant chose to run her case. There was simply no exploration, through cross-examination, of what was motivating individuals, or what their attitudes were, at critical points in time. The absence of that exploration no doubt made it easier for the AFP to discharge its onus under s 361.

[42]

Workplace right 218 As I noted above, this claim is put on two bases: first as adverse action because of the exercise of a "workplace right" by DS Richens contrary to s 340(1) of the FW Act, relying on the definition of adverse action in s 342(1) items 1(b) or (c). Second, as adverse action contrary to s 351 of the FW Act. I note that in [179] of the applicant's closing written submissions there is some mixing up of the names of the key players, but it is clear enough what the allegation is. 219 The workplace right is first said by the applicant to be the right to apply for a transfer: see [180] of the applicant's closing written submissions. The applicant then submits that the right to withdraw a transfer application is also a workplace right for the purposes of s 341 of the FW Act: see [182] of the applicant's closing written submissions. As I observe below, it appears to be the right to withdraw the transfer application which is pressed in the applicant's closing written submissions. 220 In closing written submissions, the applicant relies on s 341(1)(a) and contends that DS Richens was "entitle[d] to the benefit of a workplace law, workplace instrument or order made by an industrial body". Relevantly, she identifies that she had applied for a vacancy (as an expression of interest) in accordance with Commissioner's Order 7 (CO7), which in turn is said to be supported by reg 3 of the AFP Regulations 1979. There are a large number of regulations relating to the AFP. The 1979 Regulations appear to have been in force at the time of the conduct relevant to the applicant's first claim, and the AFP did not suggest otherwise. The AFP Regulations 1979 appear to have since been repealed and replaced by the Australian Federal Police Regulations 2018 (Cth). 221 Division 2.1 of the AFP Regulations 1979 is entitled "Employment decisions". Regulation 3 provides: AFP values Employment decisions in the AFP must be based on the following values: (a) impartiality and professionalism; (b) merit; (c) freedom from discrimination; (d) openness and accountability; (e) fairness; (f) equity in employment; (g) effectiveness. (Original emphasis.) 222 The affidavit of Detective Superintendent McLennan, filed on behalf of the AFP, exhibits a copy of CO7. Its purpose is stated to be, relevantly, to outline the selection principles relating to the filling of vacant roles in the AFP. The AFP did not contend that CO7 was inapplicable to DS Richens' employment at the AFP, although it contends there is insufficient evidence to establish her transfer application was made under CO7. The AFP also complained that CO7 had not been referred to in the applicant's oral opening or closing submissions. 223 CO7 and reg 3 of the AFP Regulations 1979 were given as particulars in the applicant's particulars of claim at [5]: Under paragraph 7: The Applicant had applied for a vacancy in accordance with Commissioners Order 7 (CO7). Employment decisions in CO7 are enacted by Regulation 3 of the AFP Regulations. The Applicant had the workplace right to withdraw from the vacancy as per the employment values defined in Regulation 3 (ie: with freedom of discrimination). The Applicant's formal application stated "If you wish to withdraw your Application you may do so at any time". The Applicant's offer to transfer also stated that if she declined the offer she would remain in her current position. 224 Paragraph 7 of the applicant's amended complaint stated: The applicant claims that Commander Hurst took adverse action against the applicant because she had exercised her workplace right to discontinue the transfer. The applicant claims that Commander Hurst took this adverse action because she disregarded or disapproved of the applicant's relationship. Commander Hurst treated the applicant differently to Sergeant Joey Thorn. (Original emphasis.) 225 Thus, the terms of CO7 and reg 3 were clearly an aspect of the first claim made by the applicant, regardless of whether they were expressly mentioned in the applicant's oral opening and closing submissions. I note there was also some (limited) cross-examination on them. 226 However, as [7] of the applicant's amended complaint makes clear, the actual workplace right alleged to have been exercised by the applicant was the right to withdraw from the Melbourne transfer. That was also where the emphasis seemed to end up in the applicant's closing written submissions, given the nature of the adverse action alleged, which related to what Commander Hurst was said to have done upon the applicant's withdrawal. 227 Clause 2.2 of CO7 refers to, and picks up, the terms of reg 3 of the AFP Regulations 1979. Various powers are given to the AFP Commissioner or a person delegated by the Commissioner to exercise powers under CO7, consistently with relevant requirements of the Australian Federal Police Act 1979 (Cth) or the AFP Regulations 1979. The following provisions of CO7 should be noted: 2. Selection and Advancement Principles 2.1 The filling of vacant roles must be undertaken without patronage or favouritism as provided under section 69 of the Act. … 2.3 A decision is based on merit if: a) an assessment is made of the relative suitability of the applicants for the duties of the advertised vacant role, using a competitive selection process; b) the assessment is based on the relationship between the applicants' work-related qualities and the work-related qualities genuinely required for the duties; c) the assessment focuses on the relative capacity of the applicants to achieve outcomes related to the duties; and d) the assessment is the primary consideration in making the decision. 2.4 All parties to the selection processes and employment decisions (including applicants) are required to observe the principles of confidentiality and privacy in respect of' the AFP's selection processes. 2.5 Nothing in this Order precludes or fetters the exercise of the Commissioner's power under section 40H(1) of the Act. 3. Notification of Employment Opportunities 3.1 AFP employment opportunities shalt he notified consistent with the requirements of the Act and Federal Government policy to ensure that all eligible members of the community have a reasonable opportunity to apply. 3.2 An 'Expression of Interest' may be used to notify roles to be filled internally in accordance with the National Guideline. 3.3 A Delegate may restrict eligibility to apply for APP roles based on grounds of cost or operational efficiency. Such roles shall be classed as 'restricted roles' and include the following: a) roles which require the exercise of police powers; b) roles which are determined to require the application of police experience, knowledge and training; or c) roles which are to be advertised internally, with eligibility restricted to AFP employees or other specified categories of persons. 228 Section 40H of the AFP Act (mentioned in cl 2.5 of CO7) confers a power on the Commissioner to assign an AFP employee to particular duties. Clauses 4 and 5 of CO7 deal with the constitution of an Independent Selection Advisory Panel or "ISAP" and review of the ISAP's decisions. There was no suggestion in this proceeding that the NPSC was constituted under those clauses of CO7, or that any ISAP was used to make the decisions impugned by the applicant on the first claim. An ISAP is part of the allegations in the sixth claim. 229 As cl 3.2 of CO7 notes, the expression of interest process may be used to fill vacancies advertised internally through the process set out in the AFP's "National Guideline on Selection for Vacant Roles". This particular guideline does not appear to be in evidence. However, what is in evidence is a guideline titled "National Guideline on General Recruitment and Selection", which refers to CO7 and addresses how external and internal vacancies are to be advertised by the AFP. 230 Neither CO7, nor reg 3 of the AFP Regulations 1979, say anything about an AFP member having a right to withdraw from a transfer application. Nor does the National Guideline which is in evidence (and which, as I have noted, may not be the specific guideline to which CO7 refers). It is correct, as the applicant submits, that the EOI the applicant submitted to the NPSC in March 2013 advised candidates that: If you wish to withdraw your Application, you may do so at any time 231 It is also correct that the terms of Commander Hurst's email to the applicant in April 2013 suggested she could decline the transfer offer: Please note the formal advise below from the NPCSC. Melbourne Office will be in contact with you soon. Can you advise whether you accept this offer to transfer please. The National Placements Sub-Committee has agreed to transfer you to Melbourne Office. Specific allocation to a position will be considered, and advised by the relevant Regional Staffing Committee/Operational Committee. If you decline the offer, you will remain in your current position. You will also remain in the pool but the offer will be extended to another employee from the pool. 232 In some circumstances, a right to withdraw from a transfer or promotion application might be implied. There would be little difficulty in describing any such implied right as a person being "entitled" to a "benefit", but there are at least two problems confronting such an approach in the current circumstances. The first is identifying the source of such an implied right or entitlement as lying in a workplace law, a workplace instrument or an instrument made by an industrial body (such as the Fair Work Commission). The word "entitled" in s 341(1)(a) refers, in my opinion, to an "entitlement" in the form of a legal right of some kind. The applicant's closing written submissions on the first claim made no attempt to identify any source of a "workplace right" other than CO7 and reg 3 of the AFP Regulations 1979. Even if each of these falls within the definition of "workplace law" or "workplace instrument", the applicant's submissions made no attempt to identify where in either document such an implied right of withdrawal might be located. The EOI application form, or Commander Hurst's email of April 2013, cannot be characterised as one of these three sources. 233 The second difficulty is that any implication of such a right to withdraw in the context of the AFP as an employer would need to grapple with the existence of powers in the AFP Commissioner to assign AFP employees to specified duties: see, for example, s 40H of the AFP Act to which I referred above. It may well be that ultimately, provisions such as s 40H (and there may be others) are intended to empower the AFP to compel officers to transfer to particular positions or locations. This might be inconsistent with any implication that an officer has an implied entitlement, unilaterally, to withdraw from a transfer the officer has accepted. I make no finding on these matters because the applicant simply failed to develop any argument about how a withdrawal fell within s 341(1)(a). 234 I reject the applicant's contention that she had a "workplace right" to withdraw a transfer application she had made. She was permitted to do so, but it was not an "entitlement" sourced in one of the three sources to which s 341(1)(a) refers. 235 While the National Guideline in evidence, CO7 and the AFP Regulations 1979 might, whether cumulatively or separately, be seen to confer an "entitlement" on AFP employees to apply for transfer or promotion (that being a plain incident of establishing a merit-based system through these documents), this was not how the applicant put her case in her amended application or particulars. 236 Even if she were permitted to rely on such an argument, it would fail at the next stage on the same basis that the right to withdraw argument would fail, once the alleged causal nexus for any adverse action is considered, and rejected as it must be. I turn now to those matters.

[43]

The s 340 adverse action arguments 237 In this section, I consider whether the conduct on which the applicant relies in this first claim is capable of constituting adverse action (even if she had otherwise made out the workplace right argument). 238 The applicant contends she was both injured in her employment (item 1(b) of s 342(1)) and had her position altered to her prejudice (item 1(c) of s 342(1)), because her (investigative) position in Crime Operations in Canberra was not retained for her following her withdrawal of the transfer to Melbourne, contrary to what Commander Hurst had said in her email, which I have extracted above. 239 I discussed the scope of the concept of prejudice to an employee's position in Sayed at [133]-[138], and I adopt what I set out in those paragraphs. The inability to return to a previous position is capable of falling within this item. Here, there is no doubt that DS Richens lost the ability to continue on in an investigative role, and instead was required to apply to the NPSC and seek other roles. I accept what is submitted at [184] of the applicant's closing written submissions concerning how, after May 2013, DS Richens' ability to secure investigative roles was expressly affected by the fact that she could not return to Crime Operations and continue to hold a position in an investigative team. While in cross-examination Commander Hurst disputed that the applicant's role in Crime Operations was an investigative one, she agreed that it was a role requiring her to inquire into and provide reports to her Superintendent. On any view DS Richens' role was in an active investigative unit, and it was much closer to an investigative role than what she ended up doing for the next four years. 240 While it is correct that the applicant was looking to move out of Crime Operations in Canberra, in my opinion, the evidence discloses she concentrated her search on roles where she could co-locate with her partner, and continue in an investigative role. She was not looking for other roles because she wanted to leave Crime Operations. 241 The AFP relies on Commander Hurst's explanation for why she believed it was in the interests of the applicant's professional development that she be sent to a position where she could lead a team, because in her Crime Operations position in Canberra, although DS Richens was classified as a Team Leader, there was no-one else in her team. I do not find Commander Hurst's explanation probative of why there was no longer a position for the applicant in Crime Operations, immediately after she declined the transfer to Melbourne, and I do not accept Commander Hurst's explanation that DS Richens' position was not altered to her prejudice. 242 DS Richens was briefly cross-examined about what occurred after she declined the Melbourne transfer. It was put to her that she was applying for other roles almost immediately after she declined the Melbourne transfer and that she wanted to move out of Crime Operations in Canberra. DS Richens stated: By this time, I had been told that there was no role for me in crime operations anymore. 243 Contrary to the thrust of the cross-examination, there was no inconsistency in DS Richens' evidence about the timing of her search for new roles: she knew by then she was not welcome in Crime Operations and there was no place for her. As the cross-examiner then noted in a following question: Now, after your meeting with Commander Hurst on 22 May, it was pretty clear to you, wasn't it, that you couldn't go on working in her crime operations team?---It was clear, yes. 244 Earlier, DS Richens had rejected a suggestion she did not wish to work with Commander Hurst: I see. If you had it your way, you would never have moved into Commander Hurst's team. Is that fair?---Well, Commander Hurst was a mentor to me at that time. I was happy to work for Commander Hurst. 245 I accept DS Richens' evidence. I find that Commander Hurst's change in attitude towards her was sudden. I find that change in attitude occurred first, after there was a suggested postponement of the timing of the Melbourne transfer and second, after DS Richens declined the Melbourne transfer. 246 As to the reason for the refusal to allow DS Richens to stay in Crime Operations, the applicant's closing written submissions tend to conflate the first claim with the third claim. While there is a factual connection, in that chronologically one flows from the other, they are put distinctly. The adverse action in the first claim is the refusal to allow DS Richens to return to Crime Operations. DS Richens had not even put in her NPSC application at that point in time. That was something Commander Hurst subsequently directed her to do. However, that direction came after Commander Hurst had decided DS Richens could not return to Crime Operations. 247 The only person in the AFP, on the evidence, who was responsible for the decision that DS Richens could not return to Crime Operations was Commander Hurst. That decision appears to have been made on or around 28 May 2013, when Commander Hurst met with DS Richens and informed her she did not have a place in Crime Operations. The first claim needs to be considered on this basis. 248 Commander Hurst denied in cross-examination that she wanted DS Richens out of Crime Operations: All right. But you had told her that her time was up with Crime Operations, hadn't you?---No, I didn't say that. We had had a discussion, a discussion over an extensive period of time, about her moving out of that particular area because she needed further development in other areas. 249 I do not accept this evidence. I consider that it is a reconstruction. 250 Commander Hurst initially appeared to describe the applicant's time in Crime Operations as lasting three years, until eventually in cross-examination she clarified it was for a period of three months. She also accepted that there was nothing in her contemporaneous diary notes of a discussion at the time with Assistant Commissioner Stephen Lancaster where she had referred to the need to move the applicant so she could lead a team. 251 Commander Hurst also accepted that there was a gap in Crime Operations because DS Richens was not returning to her position (due to her subsequent transfer to Learning and Development): Okay. All right. And what was your view at the time, Commander, about the role that the applicant previously performed in Crime Operations? What were you going to do about the immediate absence, or gap, in relation to that?---We would either - we were talking about the transfer of Joe Thorn into that role, but he couldn't transfer at the time. So we would either have looked at a backfill-type arrangement - - - Right. And what did actually happen - - -?---I can't remember. 252 Further, only in January 2013, Commander Hurst had told DS Richens that she needed more time in Crime Operations. In the context of explaining why she would not support DS Richens transferring to the Serious and Organised Crime portfolio, Commander Hurst said in an email: I wouldn't support you going into SOC - all their operations are large scale narcotics matters - you need some time In Crime Ops before you go to SOC. 253 This is not the attitude of a supervising officer who considered her junior officer had had enough time in Crime Operations. 254 Commander Hurst also agreed she had not consulted the applicant about her decision to reduce the size of the team in Crime Operations, and that she should have: Okay. Now, in relation to the position regarding the decision to reduce the team leaders in the - in national crime operations, did you consult with the applicant about the possibility of that occurring?---No. I wouldn't have. No. Because you gave evidence this morning that you spoke about it - I think you said talking about it for months, and you said you did mention, Commander, that was with superintendents and others. To your knowledge, do you know if anyone consulted with the applicant about the potential change to her position?---I don't know. Okay. Do you agree that it would have been proper for the applicant to have been consulted about the impact on her position potentially here?---Yes. I do. 255 It is clear on the evidence the applicant had no idea her position in Crime Operations would not be available to her if she declined the Melbourne transfer. 256 It is also clear on the evidence that Commander Hurst was frustrated and angry with the applicant about, first, an apparent postponement to the start date of the Melbourne transfer, and second, about the applicant declining that transfer. The two are connected and it is necessary to set out the applicant's evidence about Commander Hurst's reaction on 22 May 2013: Commander Hurst called me into her office. She was sitting at her round meeting table furious about "a change of date to the transfer". Superintendent Ben McQuillan was also sitting at the table. She was aggressive, trembling, sitting with her arms crossed and speaking through her teeth at me. She repetitively insisted I tell her why I could not transfer in July. I was shocked and speechless by her reaction to the consultation I had with Constable Thorn regarding transfer dates. Commander Hurst ranted words to the effect: "You agreed to go in July and better not pretend you don't recall that agreement, I now have a transfer notice for January 2014, and who gave you the right to make a dog's breakfast of the transfer?" and "It's not all about you and fuck everyone else"; and "You had no right to change the date". I wrote this in my diary. ... Commander Hurst directed me to submit a list of reasons by close of business that day detailing why I could not transfer in July. She said words to the effect that she would consider the list but could already guarantee it would not be acceptable. Sergeant Thorn was not required to submit a list of reasons for his preferred transfer date. (Original emphasis.) 257 DS Richens made contemporaneous notes of this event in her electronic diary, which was exhibited to her October 2017 affidavit. She was not, in my opinion, shaken in her cross-examination. I accept her evidence as I have set it out. 258 At [98] of her December 2017 affidavit, Commander Hurst denied the applicant's evidence concerning the meeting on 22 May 2013 was accurate. Commander Hurst was also cross-examined about DS Richens' account of this meeting, and she denied DS Richens' account. As to some of the details (for example, about her body language), Commander Hurst's evidence was that she could not recall. She denied being frustrated with DS Richens. I did not find her denials persuasive. 259 My view of the evidence is supported by at least one aspect of Detective Superintendent McQuillan's evidence. His affidavit evidence was that at the meeting on 22 May 2013, he recalled Commander Hurst saying to DS Richens: You had no right to make changes to suit yourself. 260 This is more combative than Commander Hurst herself characterised her attitude to DS Richens during the meeting on 22 May 2013. I find it is accurate. Detective Superintendent McQuillan denied that Commander Hurst was aggressive, or inappropriate, and said he did not recall her using any swear words. I accept he may not recall that, but I am nevertheless persuaded that DS Richens' recollection of the meeting (see [256] above) is likely to be more accurate. 261 DS Richens withdrew from the Melbourne transfer on 23 May 2013. I have set out the terms of her email explaining why she did so at [27] above. Given Commander Hurst's behaviour in the meeting, it is little wonder DS Richens started looking for other positions outside Crime Operations. 262 Commander Hurst had expressly told the applicant on 26 April 2013 in an email (see [231] above) that if the applicant declined the Melbourne transfer she would remain in her current position. A month later, that did not occur. On 28 May 2013, Commander Hurst directed the applicant to meet in her office. This is how the applicant describes what occurred: On 28 May 2013, Commander Hurst directed me into her office. She stood behind her desk flicking a small calendar. Commander Hurst said words to the effect: "your time in the Crime Program is done, I have no positions for you in Crime Operations. It's time to move on". I said words to the effect "I appreciate your support with my transfer to Melbourne", and "I have already commenced vacancy enquiries however in the interim my transfer offer stated that if I do not transfer to Melbourne I will remain in my current role, and remain in the mobility pool". Commander Hurst ignored me and issued me a direction to submit another application to the NPSC by 6 June 2013. Referring to her calendar she stated words to the effect: "on the 12 June 2013 you will be raised at the NPSC and placed in ACT Policing, AFP Operations Co-ordination Centre (AOCC), or Aviation". (Original emphasis.) 263 Again, the applicant took contemporaneous notes of this meeting in her electronic diary, which are broadly consistent with her affidavit evidence. I note, however, that in contrast to her affidavit evidence, the applicant's diary notes do not record her referring to her transfer offer to Melbourne stating that if the transfer didn't go ahead, she would remain in her "current role" and "in the mobility pool". She was not challenged on her description of this meeting in cross-examination. 264 I find Commander Hurst is unlikely to have any detailed recollection of what she actually said, or how she behaved, in the 22 and 28 May 2013 meetings. The Commander was, and is, a very busy and senior member of the AFP. At the time of the conversation, there was no reason she would need to recall it. Her affidavit evidence is, I find, constructed from her diary notes, and that is unsurprising for a person in her position. DS Richens was but one officer of many for whom she performed a supervisory and command role. In contrast, DS Richens has every reason to recall that conversation, its detail, tone and language, and indeed took notes of those matters. For DS Richens it was a critical conversation about her professional future, and I accept her evidence that it was clear to her that Commander Hurst was very angry with her, and showed it. 265 I find, in conclusion, that Commander Hurst's conduct in determining there was no continuing place for the applicant in Crime Operations in Canberra was adverse action within item 1(c) of s 342(1) of the FW Act. DS Richens' position was altered to her prejudice. The prejudice was in not being able to return to a familiar role which had some investigative aspects, and being compelled to apply for new roles which would not necessarily be of her choosing. I consider the description in item 1(c) better fits the facts as I have found them than the description in item 1(b) on which the applicant also relied.

[44]

Why did Commander Hurst refuse to allow DS Richens to remain in Crime Operations? 266 I am satisfied on the balance of probabilities that the reason Commander Hurst refused to allow DS Richens to remain in Crime Operations was because DS Richens had withdrawn from the transfer to Melbourne, and because of DS Richens' request to postpone the start date of the transfer. The withdrawal from the transfer was an operative reason for the refusal to allow DS Richens to stay in Crime Operations. I adopt my observations on this issue from Sayed at [238]. 267 However, I have found the withdrawal from the transfer was not the exercise of a workplace right, in the sense used in s 341(1)(a) of the FW Act. It was conduct which the AFP as an employer permitted, as is apparent from the EOI application form the applicant submitted to the NPSC in March 2013. However, it was not an "entitlement" in the sense of something the AFP was bound to respect and act consistently with, because the entitlement was conferred by one or more of the sources set out in s 341(1)(a). As I have noted, although this matter was not the subject of any argument, to imply such an "entitlement" would encounter difficulties with some of the powers given to the Commissioner in the AFP Act. Since no argument was developed along these lines, I make no concluded finding on the issue: what is important is that the applicant has failed to identify a source of the asserted entitlement, and to prove it was properly characterised as an entitlement, and therefore as a workplace right. 268 The applicant also contends that Commander Hurst refused to allow her to return to her position in Crime Operations because she "disregarded or disapproved of Richens' relationship with McPherson": see the applicant's closing written submissions at [200]. 269 The applicant's submissions, unhelpfully, move between different descriptions of the protected attribute: for example, "sexual preference", "sexual orientation", and the applicant's "relationship". In the protected attributes identified in s 351(1) of the FW Act, only "sexual orientation" appears. Although the parties did not expressly address this matter in their submissions, I am satisfied that the term "sexual orientation" should be construed as including characteristics which flow from that attribute. Relevantly, sexual orientation to persons of the same gender can include the characteristics of having a partner of the same gender. I adopt the observations I made in Sayed at [194]-[195] on this matter. See also RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 at [124] (Perry J) and Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 at [110]-[125] (Katzmann J). 270 For this aspect of her argument, the applicant relies substantially on what occurred at the June 2013 NPSC meeting. While anything said by Commander Hurst at that meeting might be capable of tending to prove her state of mind about DS Richens' sexual orientation and same-sex relationship, given the proximity of the meeting in time and its connection with the refusal to allow DS Richens back into Crime Operations, in my opinion, there was nothing said by Commander Hurst at the June 2013 NPSC meeting which fell into that category. There were remarks made by others (and at least one reaction by Commander Hurst), to which I return below. 271 The present focus is on what were Commander Hurst's reasons for refusing to allow the applicant to return to and remain in her position in Crime Operations. The question, one of fact, is whether the AFP has proven that the fact that DS Richens is a gay female (as DS Richens describes herself), and was in a relationship with another woman, was not one of the reasons why Commander Hurst refused to allow DS Richens to return to, and remain in, her previous position in Crime Operations in Canberra. 272 I am satisfied the AFP has discharged its burden of proof on this issue. Although there were many aspects of Commander Hurst's evidence I found unsatisfactory, and while I found that overall she sought to gloss over or minimise her antagonism to DS Richens, and to present an overly anodyne narrative of her previous interactions with DS Richens, I accept her evidence that the way she treated DS Richens was not because DS Richens is a gay female, or because she was in a relationship with another woman. Any remarks made by Commander Hurst, or reaction to the comments of others, might have demonstrated some inappropriate informality, or even dislike of DS Richens. They were not evidence of her state of mind being one where her decisions were actuated by DS Richens' sexual orientation. 273 As I explain below, Commander Hurst's negative and somewhat pejorative attitude at the June 2013 NPSC meeting was in my opinion driven by the same frustration and anger which drove her refusal to allow DS Richens to remain in Crime Operations. It was a punitive attitude. But it did not spring from any prejudice against DS Richens because she is a gay female. It was grounded in Commander Hurst's views about DS Richens' choices about transfers, her unyielding determination to find a position that was acceptable and which would enable her to co-locate with SC McPherson, and the somewhat dogged approach which DS Richens adopted. 274 I am also satisfied there is nothing in the surrounding circumstances, in the documentary evidence, or in the evidence of any other witness, which would cause me to disbelieve Commander Hurst on this matter. Further, some of the other evidence on which the AFP relies supports the finding I have made. 275 It is common ground, and acknowledged in DS Richens' own evidence, that Commander Hurst had been a mentor to her, and had supported her professional aspirations. This was borne out in the way Commander Hurst supported the applicant's request to transfer to Brisbane (a sought-after location for AFP officers) so she could co-locate with SC McPherson. Even when DS Richens rejected the Brisbane transfer she was offered, in an email of 14 January 2013, Commander Hurst still supported - strongly - the applicant's expression of interest for the Melbourne position. As the AFP submits, this support from Commander Hurst continued at the April 2013 NPSC meeting. That support is also apparent in the applicant's own evidence about what Commander Hurst said to her on learning she had been successful in securing the transfer to Melbourne: I saw Commander Hurst in the office and she made a confronting comment to me. She said words to the effect: "you better hit the ground running in Melbourne. They will be watching you closely. They didn't want you and only wanted to promote their own people. I had a fight on my hands to get you there". (Original emphasis.) 276 While the applicant describes this comment by Commander Hurst as "confronting", this is an example of the hindsight in her evidence, to which I refer at [196] above. 277 Finally, in her October 2017 affidavit the applicant also refers to advice given to her by Commander Hurst regarding transfer applications being made by SC McPherson. The tone and content of the comments attributed to Commander Hurst (that SC McPherson would have to "fight" to get the transfer) is indicative of support, not prejudice. 278 The aspect of the first claim concerning withdrawal of the Melbourne transfer, and the applicant not being permitted to remain in Crime Operations, must fail. I turn now to consider if there is a second aspect of the first claim, how it is put, and how it should be resolved.

[45]

Is there a second aspect to the first claim? 279 As I have noted, it is challenging to discern the final iteration of the applicant's claims in this proceeding. Given the approach taken by the applicant, and what the Court said during closing oral submissions, the Court is taking what is set out in the applicant's closing written submissions as the articulation of the applicant's claims, so long as that articulation can fairly be said to fall within the parameters of the amended complaint. 280 However, even adopting this approach, which gives considerable latitude to the applicant's case, it has been difficult to discern the parameters of some of the applicant's claims, especially the first claim. A key example of this difficulty is ascertaining whether, in the first claim, there is a second aspect which goes beyond the allegations about the consequences for the applicant of withdrawing from the Melbourne transfer, in terms of the decision that she could not remain in Crime Operations in Canberra. 281 In the heading after [178] of the applicant's closing written submissions the claim is described as: The Applicant's First Claim: Proposed Transfer to Melbourne - breach of s.340 of the Fair Work Act 2009 - adverse action because of the exercise of a workplace right 282 When the applicant's submissions are examined it is apparent the claim goes beyond reliance on s 340 and extends to reliance on s 351: in other words, two distinct kinds of adverse action are alleged. I have dealt with those above. 283 At [183] of the applicant's closing written submissions, still under the "transfer" heading, the applicant contends (with my emphasis added): In May 2013, the AFP did not keep Richens' position for her within Crime Operations in Canberra but rather removed her from that role into the LDRT unit. That action was "adverse action" within the meaning of s.342(1)(b) of the FW Act because it injured her short-and-long-term career. Her career in crime investigations fell away and her career trajectory has been lost. (Footnote omitted.) 284 At [186], the applicant's closing written submissions appear to confine the allegation back to simply the decision not to allow DS Richens to remain in Crime Operations (with my emphasis again): The decision by the AFP to prevent Richens from continuing in her role was clearly prejudicial. She was not able to recommence and develop her career as a crime investigator, including overseas, which was her career objective, until several years after she should have been able to. (Footnotes omitted.) 285 Yet in the very next paragraph, the applicant extends the allegation: To succeed, the Court must conclude that one of the reasons (one being sufficient - s.360) why the AFP took the adverse action referred to above of removing her from Crime Operations in Canberra and placing Richens in the LDRT unit (under s.342(1)(b) and (c)) because Richens exercised her workplace right to stay where she was within Crime Operations in Canberra (by withdrawing her transfer application). (Emphasis added.) 286 Then at [188] the applicant contends (with my emphasis added): As the events between January and 17 June 2013 (when Richens was formally placed into the LDRT unit) reveal, AFP's the adverse actions of: (a) removing Richens from her Crime Operations role; (b) putting her to an entirely inappropriate body (NPSC) for placement; (c) putting her into the LDRT unit role; (d) disengaging her from her investigations experience, thereby inhibiting her future career, occurred for a number of reasons, one of which was a prohibited reason: (e) Hurst was angry and frustrated by the extension of time for Richens and Thorn moving from Canberra to Melbourne (and vice versa), Hurst considering that Richens was meddling in the timing and challenging Hurst's authority (she was not) - not a prohibited reason; (f) Hurst was angry and frustrated by Richens' application and withdrawal of a proposed move to Melbourne, having earlier made an application to move to Brisbane and having withdrawn from that. Hurst was sick-and-tired of this - she indicated as much in the meeting on 13 June 2013, namely in relation to Richens' moving initiatives, "I think I'm done with that now." (emphasis added) - this was a prohibited reason. (Footnote omitted.) 287 The extension of the impugned conduct to the placement of the applicant in Learning and Development can also be seen in that part of the applicant's submissions under the first claim which deal with the alleged contravention of s 351 (at [205]): The prejudice against Richens' sexual preference and therefore her relationship with McPherson, grounding the decision to remove Richens from her role and put her into the LDRT unit is demonstrated by the exchange between members in the NPSC meeting on 13 June 2013. (Emphasis added.) 288 Further, it is the case that a large portion of the applicant's closing written submissions on the first claim concern what occurred at the June 2013 NPSC meeting, which is principally relevant to the matter of the applicant's placement in Learning and Development. 289 On balance, it appears that the applicant does press a second aspect of the first clam, and identifies the NPSC decision to place her in Learning and Development as adverse action, as well as Commander Hurst's decision that she could not remain in Crime Operations in Canberra. 290 There are some terminology differences, which should also be clarified. The applicant refers to "Learning and Development". As I have noted, that is the portfolio. The applicant also refers to "Recruit Training", which is a unit within that portfolio. I have attempted, for consistency, to use the term "Recruit Training". Nothing turns on the difference for the purposes of the resolution of the claim. 291 In proceeding to consider this aspect of the first claim I note the contents of an agreed statement of facts filed by the parties on 11 December 2018, shortly after the commencement of the trial. The statement clarified that the only relevant decision-makers against whom the applicant pressed her adverse action claim in relation to the decision made to transfer the applicant to Recruit Training (which occurred at the June 2013 NPSC meeting) were Commander Hurst, Commander Chew, Commander Drennan and Mr Turner. This rather suggests the parties understood this was an aspect of the applicant's claims.

[46]

The AFP's approach to the first claim in its closing written submissions 292 By way of a general submission, directed at the restructuring of the applicant's case into six discrete claims, the AFP relevantly submits (at [6] of its closing written submissions): Two months after the close of evidence, the applicant seeks to make submissions in a manner fundamentally removed from the way in which the applicant conducted herself at the trial. It is submitted that this departure from the way the trial was opened and conducted reflects an acknowledgement by the applicant that large parts of her case were not made out at the trial. (Footnote omitted.) 293 However the AFP also fairly concedes (at [7]): … the six allegations are not entirely new and not incapable of being addressed by way of the evidence already adduced by the respondent's witnesses. (Footnote omitted.) 294 The AFP reiterates these points at [70] and [71] of its closing written submissions. They have considerable force, and the Court agrees that the applicant's case has been conducted in an unsatisfactory way, without the focus which is appropriate to factually intensive allegations of contraventions of provisions such as s 340 and s 351 of the FW Act. 295 While at [8] the AFP goes on to submit that the lack of precision "undermines [the applicant's] capacity to rely on the reverse onus", the AFP does not go so far at that point in its submissions as to submit s 361 is not engaged in relation to the applicant's claims. Yet it goes further at [64]: In the circumstances, given the way in which the applicant's case has been agitated, the applicant does not have the advantage of the reverse onus provisions and must positively prove each aspect of each of them. (Footnote omitted.) 296 No authority is cited for this proposition, aside from a reference to the applicant needing to prove each aspect of those provisions "[t]o the satisfaction required by s.140 of the Evidence Act 1995 (Cth)". Despite this submission, the bulk of the AFP's submissions, including on each of the six claims, proceed on the basis s 361(1) is engaged. 297 There are some passages in the Full Court's decision in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 (especially at [14]-[19]) which might be seen to support, to some extent, the AFP's submission. The Full Court in Hall did not go so far as to outline when, as a matter of law, s 361 would be somehow disengaged. Rather, the Full Court pointed to the precision necessary in order to determine whether the preconditions in s 361(1)(a) and (b) were met, so that the reverse onus (or presumption) applied. 298 In my opinion, even on the aspect of the first claim presently under consideration, the applicant's argument does not lack so much precision that s 361 is somehow disengaged. Ultimately, since I have found the AFP has discharged its onus on each claim, I would have in any event found the applicant had not proven any of her claims on the balance of probabilities. 299 At [28], the AFP relevantly submits: The applicant does not assert that any comments during the June 2013 NPSC meeting in themselves constitute adverse action. It is only if the Court finds that any such comments reflected the reasons why the applicant was subject to what she claims is adverse action that those comments become relevant. (Emphasis added.) 300 That submission appears to be a recognition of the relevance of the evidence about the June 2013 NPSC meeting to the applicant's claims as put in closing written submissions. 301 The AFP then approaches the first claim, from [72] of its closing written submissions onwards, on the basis that it has "two parts". It identifies (at [72]) the first part as relating to what I shall call the "workplace right" aspect of the applicant's claim. 302 It identifies the second part of the first claim (at [93] and following) as what I shall call the "protected attribute" aspect of the applicant's claim. In the description the AFP provides of this aspect of the claim (cross-referenced to [200]-[202] of the applicant's closing written submissions) the focus is on Commander Hurst's "removal" of the applicant from her position in Crime Operations. 303 In other words, the way the AFP divides its response to the first claim is by reference to the prohibited reasons identified: exercise of a workplace right on the one hand, and a protected attribute on the other. 304 There is less focus on what is said to be the adverse action. That is not a criticism of the AFP, given the lack of clarity in the applicant's case. Relevantly, the AFP has confined itself to adverse action in not maintaining a place in Crime Operations for the applicant (first claim) and a direction that the applicant apply to the NPSC (third claim). Consistently with the AFP's approach, the applicant's amended complaint does not allege in terms adverse action by the NPSC, or certain members of it, by the decision to place the applicant in Recruit Training. Insofar as the closing written submissions of the applicant purport to identify the NPSC decision as adverse action, they go beyond the applicant's case on her amended complaint, and should not be determined. That is my principal finding on this possible second aspect to the first claim. 305 However, for two reasons I propose to explain why I would have rejected such a claim in any event. First, in case I am wrong in how I have understood the amended complaint. Certainly there are also some pleadings in the AFP's defence which might suggest at that stage it understood the NPSC decision was allegedly adverse action, but cf [7] of its opening written submissions. Second, because of the centrality given to the June 2013 NPSC meeting at trial and the capacity of what was said at that meeting to, at least, be evidence of the state of mind of those who are alleged to have taken one or more of the six alleged adverse actions against the applicant - in particular, Commander Hurst and (possibly) Mr Turner. Therefore, the findings I make in this section of my reasons about what was said at the June 2013 NPSC meeting will in any event be relevant to the resolution of aspects of the six claims which rely upon the protected attribute of sexual orientation.

[47]

The impugned conduct 306 On this alternative hypothesis, the impugned conduct is said to be the actual decision of the members of the NPSC to place the applicant in Recruit Training. The evidence discloses this decision was made, in substance, at the June 2013 NPSC meeting, although Mr Turner informed the applicant about the decision on 17 June 2013. The AFP admitted in its amended defence that the NPSC decision to transfer the applicant to Recruit Training was "effective from the date its minutes were circulated on 18 July 2013". 307 It is therefore the effect of this decision which must be capable of being characterised as adverse action, and it is this decision which must have been made for reasons which included, as a material reason, a prohibited reason. In the extracts I have set out above, it appears that the applicant relies on two reasons: s 341 (her exercise of a workplace right to withdraw from the Melbourne transfer) and s 351 (her sexual orientation, a characteristic of which was that she was in a same-sex relationship with SC McPherson). 308 Mr Turner was the Chair of the NPSC in June 2013. He described the constitution of the NPSC in his December 2017 affidavit as follows: The NPSC consisted of representatives from around 15 different functions of the Respondent and me as a representative of People, Safety and Security. Each representative was required to be aware of their function, the vacancies available in their functions, the skills of the members within their function who had applied to the NPSC and the members within their functions that were looking to move to another function. … The NPSC decided on what was the most appropriate placement for a member based on a balancing exercise of a number of factors including: (a) The organisational needs of the Respondent; (b) The needs of the function area; (c) The preferences of a member; (d) The requirements of a particular role; and (e) The skills a particular member had. These factors and others that the NPSC had to consider are set out in part 2.2 of the Terms of Reference. 309 Although he does not say as much, it is clear that the factors Mr Turner describes are factors which the members of the NPSC assessed from their own perspectives. In other words, the "skills" of a particular member were what the NPSC members assessed to be the member's skills. That is an obvious observation, but not unimportant in addressing the way the applicant puts her claims. 310 At [20] of his affidavit, Mr Turner described the context for the June 2013 NPSC meeting: On 13 June 2013, the NPSC met to discuss the placements that needed to be allocated that month. I chaired the meeting and Commanders Jennifer Hurst and Fiona Drennan, amongst others attended the meeting. I recall that in mid 2013, the NPSC was having to consider and place up to 30 people per meeting. This was because we had a few international missions come to an end and therefore there were a large number of members who were finishing their international deployments needing to be placed in Australia. There was also focus on placing members at a sergeant rank where there were operational needs within the Respondent as there were a number of members at that rank that needed to be placed. 311 I accept all of the evidence of Mr Turner which I have extracted above. 312 The AFP's amended defence admits that the members of the NPSC on 13 June 2013 were Mr Turner, Commander Hurst, Michael Chew, Shalini Dantan, Fiona Drennan, Greg Harrigan, Clive Murray, Charmaine Quade, Andrea Quinn, Jamie Strauss, Mark Walters, Petula Curcio, Brett McDonald and Christie Stonham. Not all these people attended that particular 13 June 2013 meeting, at least according to the Minutes of that meeting in evidence. Although at one stage the AFP foreshadowed that it considered it necessary that each member of the NPSC would need to provide affidavit evidence in order for the reverse onus in s 361 to be discharged, this did not occur. Only Mr Turner, Commander Hurst and Commander Drennan provided affidavits. Commander Chew was the subject of a subpoena to give evidence issued by the applicant, and gave evidence in this proceeding under that subpoena. The evidence may have ended up being limited to these four individuals because of the agreed fact which I have referred to at [291] above. It is not possible to be certain. 313 The AFP contended in its amended defence that the NPSC made its decision about the applicant: …because the Applicant had listed 'Learning and Development' as a preference in her transfer application form and because there was an operational need for members to transfer to Recruit Training Canberra[.] 314 In evidence was both a recording of the June 2013 NPSC meeting, obtained through discovery, and a transcript of the recording, which had been prepared by DS Richens. Ultimately, the AFP did not object to the transcript being adduced in evidence and DS Richens was not cross-examined to suggest it was materially inaccurate. I accept DS Richens did her best to produce an accurate transcript, although as I find below, she has embellished the transcript somewhat with her own interpretation of the participants' behaviour at certain points. Where she has not been able to identify a speaker, or a word or words, she has said so in the transcript. Key parts of the recording were played to the Court on behalf of the applicant, notably during cross-examination of Commander Chew. 315 In Commander Hurst's December 2017 affidavit, there was a summary of the June 2013 NPSC meeting, and the Minutes of the meeting were also produced as an exhibit. The applicant describes this evidence as a "heavily sanitized" version of what occurred. I reject that description, if it intends to suggest some kind of deliberate omission. The Minutes are detailed, and contain what one might expect to see for a meeting of this kind. Commander Hurst's evidence is descriptive, and that is to be expected. 316 What the applicant appears to be contending is that some of the key individual remarks and comments which were highlighted during oral evidence are not reproduced in either document. That is correct. However, it was also not suggested to Commander Hurst, Commander Drennan or Mr Turner in cross-examination that there was some deliberate or conscious concealment occurring when their affidavit evidence was prepared. Nor was Commander Chew examined on any such basis. 317 The transcript prepared by DS Richens is the best evidence before the Court of what was said at the meeting. The recording was also important to get an impression of the tone of some remarks, but in general, a reliable impression can be gleaned from the transcript, read in conjunction with the cross-examination, in particular of Mr Turner, Commander Hurst and Commander Chew. Having reflected on the evidence and the parties' submissions on this matter, I make the following findings. 318 The transcript commences at about 53 minutes into the NPSC meeting. This is when the applicant is first discussed. Mr Turner accepted in cross-examination that DS Richens was not on the official agenda for the meeting circulated the day prior, but said he had been told her placement needed to be raised, and this is what he did. I accept that evidence. 319 There is an initial exchange between Commander Hurst and Commander Chew, which illustrates Commander Hurst's level of antipathy towards DS Richens: Jenny Hurst Mmmmm Mick Chew Kath Richens…you got her? Jenny Hurst Would you like her. Mick Chew NOOOO

[48]

320 The "NOOOO" is clearly DS Richens' interpretation of how Commander Chew replied, but having listened to the recording I am satisfied he was emphatic and this mode of transcription is intended to reflect that emphasis. For Commander Hurst to say "would you like her" indicates the low regard she had for DS Richens at this point in time. I do not accept Commander Hurst's evidence that this question was asked because she thought Commander Chew had a position available for DS Richens. I find she intended the sarcasm which comes across in writing and on the recording. 321 Mr Turner then said: Kath Richens has indicated or she has accepted the fact that she needs to come to the NPC Sub Committee but she has asked to defer until August as she's looking for her own outcomes. I'm not ahhh...I don't know any background to that other than that....Ummmit doesn't seem unreasonable but I suspect there might be another view around the table. 322 Commander Hurst then described the situation, from her perspective, to the persons present at the meeting. This included why she considered DS Richens needed to move on from Crime Operations, although some of her comments clearly also reflected her frustration with the approach taken by DS Richens to proposed transfers to this point, such as the following: …we have had some discussion concerning it....she agrees that she needs to move...however Kath's opinion is it's under her terms and to a location of her choice otherwise she won't move (scoff then laughs...)...so that's what I'm dealing with there. 323 Again, the "scoff then laughs" is DS Richens' interpretation of what she heard on the recording, but having listened to the recording I am satisfied it is accurate. 324 It was in this part of the meeting where Commander Hurst described DS Richens as having been in the "Crime Program" for three years, although she admitted in cross-examination DS Richens had only been in Crime Operations since January 2013. 325 The next person who spoke, Mark Walters, also evidenced a relatively negative view of DS Richens: I support Jens comments...of you know...we have spoken about it...and ummm... we moved heaven and earth but you and she was coming to Brisbane and we changed a few things and you know...to accommodate her...and then she pulled the pin on that for.. ahhh...whatever reasons.... I think the same reasons came into play with Melbourne...and ahhh Scott was keen to promote somebody from Melbourne and ummm aquias to that placed her in Melbourne and then she renigged [reneged] as on that. Again...um...it's to what extent do we you know....everything's a balance...I think you know there's a line in the sand here...and we just need to make a decision around that and I fully support Jen's view on trying to find her a position. 326 There is then an exchange between Commander Chew and Commander Hurst which was the focus of considerable cross-examination at trial: Mick Chew Is her partner still in the job? Jenny Hurst Yeah…ahhhh Mick Chew So She's a two for one…. Jenny Hurst Ahhh …well no…ummm Unknown …(indistinct laughs) Mick Chew That's just another consideration

[49]

327 Commander Chew maintained in his oral evidence that, although he did not have a clear recollection, he thought this comment referred to whether if DS Richens was transferred, the AFP would be moving one or two people. The applicant makes no submissions in her closing written submissions about this exchange, and I have no evidentiary basis to reject it, although it may have been capable of meaning other things. 328 Thereafter, Commander Hurst again makes some comments which demonstrate her level of frustration with DS Richens: Yeah…yeah…yep…I mean there's another issue here as well I mean you known if I was offered four of those opportunities…two overseas posts, Brisbane or Melbourne…I can tell you right now there's people in this ummm organisation that would NEVER get offered those opportunities 329 Commander Chew then says: She would have been fragged by most people at IDG 330 In his oral evidence, Commander Chew said that "IDG" was the International Deployment Group. He was not asked anything further about this comment. He then described what "fragged" meant: It's a military term or a term of where people are unhappy with their team leaders or their leaders and they do everything they can to try and move that team leader on. 331 Again, this was not explored any further. The applicant's closing written submissions contend: The Oxford Dictionary defines "fragging" as a military term to describe a soldier blowing up an officer with a hand grenade (a 'frag')[.] 332 I accept that is the definition given in that Dictionary. Since this was not explored in evidence with Commander Chew, it is difficult to know what to do with the applicant's submissions. At most, I find, this observation by Commander Chew continues the negative light in which DS Richens is being cast during this meeting - especially as her being somehow ungrateful and over-demanding. I do find that this dictionary definition makes more sense when put alongside the next remark, by a person who (fortunately for him or her) was not able to be identified: Put her out in South Sudan 333 Some laughter follows this comment. Then there is the following exchange, led by Commander Hurst: Jenny Hurst And now where in a situation where Kath is saying she will move when a position opens up that she is happy with…well you know what… Mick Chew It doesn't work that way. Jenny Hurst …I think I'm actually done with that now. Unknown Put her in South Sudan Jenny Hurst …laughs…shut up you…you're most unhelpful Jenny Hurst Ummm…but she really does need to develop as a Team Leader…there's that …she needs to Supervise a Team and she needs to mature…ummm in that particular role.

[50]

334 These comments reflect poorly on those officers involved in this conversation, including in particular Commander Hurst who appears to be going along with what she saw as a joke, but which is obviously not at all a matter for humour. In its closing written submissions the AFP recognises some of the comments made during the meeting were "inappropriate". That is too mild a description. 335 The next material exchange concerns DS Richens' placement. Mr Turner lists the placements she has asked for. Commander Hurst is recorded as saying "here we go" and DS Richens has described her as scoffing. I do not agree. That is too strong a description. There may be some sarcasm, but that is all. That is consistent with the findings I have made about Commander Hurst's attitude to DS Richens at this point in time. This was the subsequent exchange which took place with Commander Drennan, who was at this time in charge of the Learning and Development portfolio: Fiona Drennan I could ahhh offer her an L&D place Jenny Hurst Would she be ahhhh…managing people there Fiona? Fiona Drennan If I put her into Recruit training yes she would Jenny Hurst Would she? Fiona Drennan Yeah…it will only be a small team but it's certainly…and.. Mick Chew But she will have all the recruits as well wouldn't she Fiona Drennan She will have to manage all the Recruits as well which are under PDA as well…I tell you there's enough.. Mick Chew "issues"…(laughs) Fiona Drennan Development opportunities there to manage them …like once a week NPSC …(laughing)…(hysterical laughing). Jenny Hurst I'll ummmm…I'll take that. Fiona Drennan Yeah… Jenny Hurst I think that will be good…I thing that would be a good challenge Fiona Drennan As long as yeah…I mean to have someone with her operational experience coming in from National would be fabulous down there. Unknown Mmmmmmmm Fiona Drennan Really good. …indistinct… Unknown It looks like she was…it looks like she was well sought after by the all the positions she knocked back Jenny Hurst Mmmmmm

[51]

336 I do not accept that DS Richens' interpretation of the level of laughter as "hysterical" is accurate. I consider it is exaggerated. There was certainly audible laughter; that is my finding. 337 Nevertheless, I accept the tone of the comments, and their substance, indicates that Commander Hurst was relieved to have DS Richens placed away from Crime Operations: that is a testament to how frustrated and angry she had become with DS Richens. 338 The applicant contends in her closing written submissions: What the transcript of the meeting on 13 June 2013 transparently reveals is that the AFP (including Hurst) were sick-and-tired of Richens seeking to relocate herself for development reasons and to be with her partner, with Richens accordingly making applications and withdrawing them to achieve this. The AFP had decided enough was enough of that conduct and simply dumped her into the LDRT unit. (Footnotes omitted.) 339 That is somewhat more extremely expressed than I would characterise the situation, and I do not accept that it is accurate to describe the frustration as being directed at DS Richens' attempt to co-locate, as she was offered a co-located position in Brisbane, which she turned down for other reasons. 340 I note there is another portion of the transcript of the June NPSC meeting, upon which there was considerable focus in oral evidence, especially the evidence of Commander Chew and Commander Hurst. This appears towards the end of the transcript. It concerns a series of comments about the relationship of SC McPherson and her previous partner, and also about the relationship between SC McPherson and DS Richens. Much of that conversation, which goes over a page of transcript, also does not reflect well on the officers involved, and appears to be a series of gratuitous comments in particular about SC McPherson and her former and current relationships, but also about the applicant: Jenny Hurst Have you been briefed…on that Aviation girl in Brisbane….Kath's partner…Emma…is that her name? Mick Chew YES….she's not going anywhere. She got her own problems with her previous partner. Jenny Hurst Has she? Mick Chew Mmmmm….the one she broke up with. That's why they moved to Brisbane Jenny Hurst That's right Mick Chew Now she wants to go to Melbourne….(indistinct) said nothing…she's not going anywhere Whispering Mick Chew ….yeah yeah I know the background to it. Jenny Hurst Chewy…did John Bourke speak to you about the advice I gave him last week concerning that Emma girl? Mick Chew Noooo…Frank…I spoke to Frank Jamieson Jenny Hurst I've just been speaking to John and they are lying to the fact that ummmm….(indistinct)…not so much us but Aviation might. They're been talking about ummmm taking it on through ummmmm…the Association. Mick Chew She's already written to Justine Jenny Hurst I know she has…(indistinct)…that's what Kath wrote to Justine. I'm disrupted mmmm but anyway the reason I know this is because they've Facebooked it….I've had it read out to me. There's nothing referred on or anything like that just be alive to the fact…what we will see is they will take it to Fair Work Australia and the Association. But I know that girl got transferred up there…was in a relationship up there now that has fallen apart… Mick Chew Well Jo Jones is up there in Brisbane Jenny Hurst Who's Jo Jones Mick Chew Jo Jones…she worked for the Brisbane Office…she works for you doesn't she? Mark Walters Sorry? No Mick Chew Yeah but Emma-Kate first got a transfer to…first got a transfer to Brisbane…because of her partner (indistinct)…and now that relationships gone sour Mark Walters Ohhh this is with Kath Jenny Hurst This is with Kath…Kath Richens Mick Chew Yeah she's out at the airport…(indistinct)…Jo Jones is…Canine…McPherson yeah… Jenny Hurst So that's why she wanted to go to Melbourne cause that's where Kath was going and she couldn't go there so Kath pulled the pin on everything…and now she's straight into Kath and they are trying to organise a swap between some other dog handler in Canberra. Mick Chew I've told Clarkey that Shane's view is 12 months in one location is not long enough and she's staying there for an operational perspective…so bring it on!! Mick Chew That side of the fence Jen! Jenny Hurst Yeah

[52]

341 In the recording, which is more difficult to follow at this point as people are talking over one another since the meeting has formally ended, there appear to be other comments interspersed with the transcribed comments, and these are not all reflected in the transcript. No point was made of this by the AFP. The key comment attributed to Commander Chew can be distinctly heard if one listens carefully, as can Commander Hurst's response. The applicant submitted the "that side of the fence" comment of Commander Chew to Commander Hurst was a reference to the applicant's sexual orientation. When asked during oral evidence about what he meant by this comment, Commander Chew responded that he "ha[d] no idea". Commander Chew was under subpoena, so the applicant's counsel could not ask leading questions and the AFP properly objected when he did. As a consequence, counsel appeared to give up on exploring with Commander Chew whether his answer should or should not be accepted at face value. 342 Having reflected on Commander Chew's evidence, and having reflected on the context of his comment during the NPSC meeting, I find it difficult to accept Commander Chew had no idea what he meant by that comment. He was otherwise a confident witness, who gave very clear evidence. He had no particular difficulties with his recollection. Why he had not provided an affidavit for the AFP was not explored with him. Commander Chew was able to explain, confidently, what was meant by comments made during the meeting, such as the use of the term "fragged". Commander Chew looked uncomfortable when asked what he meant by saying to Commander Hurst about (apparently) DS Richens and SC McPherson "that side of the fence Jen". 343 My impression was, when giving his answer that he had "no idea", Commander Chew well understood that his comment about "that side of the fence" could be taken as a sarcastic remark about gay people. Given he was under oath, it may be that unless he was very sure that is what he meant, he did not feel obliged to speculate and so give an answer that would not reflect well on him. Since his answer was not explored any further, I do not consider there is a sufficient evidentiary basis to make what would be a serious finding that Commander Chew's answer in evidence was not the whole truth. The most I am prepared to find is that his answer to that question stood in contrast to the certainty he displayed in the rest of his evidence. However, that may be as much because he was given no further chance to explain his answer, as anything else. 344 This aspect of the NPSC transcript does not, therefore, lead me to find that Commander Chew, or Commander Hurst, were making decisions about the applicant because of her sexual orientation. In cross-examination by the AFP, Commander Chew expressly denied this proposition. The questions asked of him were leading and formulaic and it is difficult to place much weight on answers given in that situation. Nevertheless, the denial was expressly made.

[53]

Whether adverse action 345 The AFP states in its amended defence at [23(c)]: … save that it admits that the role in Recruit Training Canberra was not a role in which the Applicant could obtain investigations experience, it denies that the role involved a loss of income, loss of mobility and right to transfer or apply for positions in the same location as the Applicant's partner[.] 346 Relevantly, and despite what some of the evidence might have suggested, it is not formally contested by the AFP that the applicant could not obtain any investigations experience in her placement in Recruit Training. 347 I consider that the placement of the applicant in Recruit Training could have been characterised as adverse action, within the terms of item 1(c) of s 342(1). Since DS Richens had been in (at least) an operational role in Crime Operations, which may (I find) have had some investigative aspects to it, and since this is what she strongly desired to pursue, moving her to a placement such as Recruit Training was an alteration of her "position" to her prejudice, in the sense I have described in Sayed. It did, as the evidence shows, make it harder for her to identify operational experience in her subsequent applications, and it did deprive her of further investigative experience. 348 However, I do not make that finding, because on the evidence DS Richens applied for a position in the Learning and Development portfolio herself, ahead of the NPSC meeting. That is, she voluntarily put herself forward for such a position. She did not limit herself to applying for an investigative position. The terms of item 1(c) of s 342(1) require "action" taken by an employer against an employee, and requires that "action" to alter the position of the employee to her or his prejudice. Here, I find DS Richens had, voluntarily, decided to alter her own position to her prejudice by applying for the position in Learning and Development. The Court should assume if she had been offered that Learning and Development position before the NPSC meeting, she would have taken it. The Court was not directed to any evidence from her that she would not have taken it. 349 I find there was no adverse action taken by the AFP against DS Richens in placing her in Recruit Training as a result of the NPSC meeting in June 2013.

[54]

Prohibited reason 350 Even if I had found there was adverse action, I am not persuaded there was a prohibited reason. For the reasons I have expressed elsewhere, I do not consider there was a workplace right to withdraw from a transfer. Even if there was, I do not consider that the four members of the NPSC to whom the agreed fact at [291] relates made their decision because DS Richens had withdrawn from her transfer to Melbourne. 351 In my opinion those four members of the NPSC made their decision because DS Richens' name had been added to the NPSC agenda for that meeting by Commander Hurst, or at Commander Hurst's request (whether through Mr Turner or otherwise). The members of the NPSC were not actuated by the fact DS Richens had withdrawn from the Melbourne transfer. They were actuated by the fact that they had been told by Commander Hurst that DS Richens needed to move out of Crime Operations. That was the factual circumstance with which they were presented. That is what actuated their decision. On the evidence, once Commander Drennan volunteered that she would welcome having DS Richens in her Learning and Development team, the other members of the NPSC were content with that outcome. The evidence shows Commander Hurst was relieved, and that Commander Chew also appeared to consider it was good to move DS Richens. Beyond that, I am satisfied the AFP has discharged its onus of proving that it did not take adverse action for a prohibited reason relating to the exercise of a workplace right. 352 As to the second reason (if that is advanced) - namely the applicant's sexual orientation and her relationship with SC McPherson - that part of the NPSC transcript where the applicant's relationship is discussed shows some snide and sarcastic comments, which had no place at a meeting of a body such as the NPSC, but I do not consider the comments go further than that. 353 The remainder of the transcript also shows some antagonism by Commander Hurst to DS Richens, sarcasm from her and Commander Chew and some disparaging comments by a person unknown, which were in the poorest of taste in many respects. I do not consider the transcript reveals more than this. 354 In general terms, and subject to the findings I have made above, I accept the evidence from the AFP's witnesses, in particular Commander Chew, Mr Turner, Commander Drennan and Commander Hurst, that the decision they made at this meeting was not actuated by the sexual orientation of DS Richens, or the fact she was in a same-sex relationship with SC McPherson. I am satisfied the AFP has discharged its onus of proving that it did not take action for a prohibited reason relating to the applicant's sexual orientation, contrary to s 351 of the FW Act.

[55]

Second claim: proposed annual leave in May and June 2013 - adverse action because of the exercise of a workplace right 355 As I have explained above, this claim concerns the conduct of Commander Hurst and (possibly) Detective Superintendent McQuillan, in requiring DS Richens to find "backfills" for her position before she would be permitted to take leave in May and June 2013. DS Richens contends she was treated differently from other officers applying for leave at the same time (Sergeants Drake and Anderson). 356 There were two leave requests, relating to 13-17 May 2013, and 3-6 June 2013. This claim is only pressed on the basis of adverse action because of the exercise of a workplace right to take leave, not on the basis of a protected attribute. Further, the AFP accepts that requests to take leave involve the exercise of a workplace right. 357 The AFP's closing written submissions on this second claim only address the May 2013 leave, and it appears that the June 2013 leave is addressed as part of the AFP's closing written submissions on the third claim. However, it is clear enough that the AFP took the same approach during trial to the June 2013 leave: that is, that DS Richens was treated no differently to the other sergeants in her team. I consider the claim on that basis. 358 The questions therefore are: (a) was there adverse action?; and (b) if so, has the AFP discharged its burden of proving a reason for the adverse action was not the applicant's exercise of her right to take leave? 359 The applicant relies on s 342(1) item 1(d), alleging she was treated differently to Sergeant Drake (in relation to the May 2013 leave) and was discriminated against (in relation to the May 2013 and June 2013 leave) as between herself and the other officers taking leave (Sergeant Drake and Sergeant Anderson), whom she alleges were not required to find backfills for their positions. 360 I accept the AFP's submission that on the May 2013 leave request DS Richens was not treated differently, and was not discriminated against, when compared to Sergeant Drake and/or Sergeant Anderson. 361 I make the following findings based on (now) Detective Sergeant Anderson's evidence, which I accept. Detective Sergeant Anderson deposes that both he and the applicant were members of the same team in Crime Operations, and reported to Superintendent Booy, who was in charge of the organisational priorities of the team (and ultimately reported to Commander Hurst). Superintendent Booy was deployed to Indonesia in the first half of 2013. During this period, Detective Sergeant Anderson deposes that both he and Superintendent McQuillan "acted up" on various occasions in Superintendent Booy's role. 362 Detective Sergeant Anderson describes the situation about annual leave in the following terms, which I accept: When I was in Crime Operations Canberra, Commander Hurst made it clear that the team had to maintain a minimum staffing level at all times, to ensure the ongoing functioning of the team's responsibilities. This is because the team was very small in size. My recollection is that in order to maintain minimum staffing levels, Commander Hurst gave the direction that two team members could not take leave at the same time. So, while responsibility for approving recreation leave technically rested with the member's direct supervisor, the Commander's directive also had to be adhered to. I recall that Commander Hurst verbally reinforced this requirement with me and I also received this in an email dated 3 May 2013. 363 The terms of Commander Hurst's email of 3 May 2013 were: Dear all Please note that, in future, there is to be at least 2 out of the 3 TL's here at any time. I expect that when the TL's are requesting RL that this should be discussed and co-ordinated by the 2 x Co-ords to ensure that we have sufficient coverage on the floor 364 The AFP submits, and I accept, that the evidence establishes DS Richens understood at the time the directive from Commander Hurst was to apply to all three of the sergeants who were proposing to take leave. Detective Sergeant Anderson's evidence is: In response to paragraph 67, I confirm receiving an email from the Applicant which she sent to Sergeant Karen Drake and me stating that "MCO wants us to have a meeting to discuss our conflicting leave and provide a solution to her on Monday. Can we please get together ASAP to discuss". This indicated to me that Commander Hurst just wanted the issue of leave coverage fixed between us. I understood from the Applicant's email that it was the responsibility of the three of us to find this solution. 365 The applicant's email reveals this understanding: MCO wants us to have a meeting to discuss our conflicting leave and provide a solution to her on Monday. Can we please get together ASAP to discuss. 366 I also accept Detective Sergeant Anderson's evidence to the following effect: I deny that I targeted the Applicant to relinquish her annual leave. If a backfiller was not identified for this period of time, then one of us was probably going to have to change our leave plans. The pressure was on me, the Applicant and Sergeant Drake to find a solution so that the team wasn't short staffed. I considered that it was a reasonable and appropriate conversation to have with the Applicant to determine whether her plans were changeable. 367 Commander Hurst also denied in cross-examination that she targeted DS Richens to forfeit her annual leave or provide a backfill position. 368 The context of the applicant taking this leave should be recalled. These events were occurring only shortly after the applicant was told she had been endorsed by the NPSC for a transfer to Melbourne, and a few months after she had rejected the Brisbane backfill position. The applicant was, on her evidence, feeling distressed and unsupported. I find she may have perceived she was being "targeted" to change her leave, and may well have felt her need for leave was greater than that of other sergeants. That may well have driven her sense of being targeted. However, on the evidence, I find she was not. 369 As to the June 2013 leave request, this involved interactions with Detective Superintendent McQuillan, but also some directions from Commander Hurst. This leave request was filed by DS Richens on 24 May 2013, for leave on 3-6 June 2013. Again, the timing should be noted: this is just after, or around the same time as, DS Richens had declined the Melbourne transfer. Further, Detective Superintendent McQuillan had only been acting in Superintendent Booy's position for a matter of days. 370 In his affidavit evidence, Detective Superintendent McQuillan explained the usual process for approving leave requests, and explained why he felt it necessary to consult Commander Hurst regarding the applicant's request. He spoke of the coincidence of several team members going on leave at the same time and the challenges this posed for the team being able to provide the support Commander Hurst required. He deposed (at [21] of his affidavit of August 2018): The Applicant had made the leave request on a Friday and I believe that she then followed up with me the following Tuesday 28 May 2013, about the status of her leave request. Because of others being on leave at the same time as the period of leave as the Applicant's leave request I discussed with Commander Hurst that the Applicant should be asked to take her leave in the following week. The request would be made to the Applicant because her leave was unplanned and at short notice. This was also to maintain a suitable capacity within the team to provide the support required by Commander Hurst. I recall that I was concerned that if the Applicant took this period of leave I would have been left to do the entire team's work on my own and that was not sustainable. I telephoned the Applicant on 28 May 2013. I do not recall being with Commander Hurst when I made this call. I asked the Applicant if she could change her leave dates and she agreed. It was agreed that the Applicant would take leave from 11 to 14 June. This was an easy compromise and the Applicant seemed happy with the arrangement. 371 He then explained why this proposal was not, in the end, a workable one, because it would still mean that team members would be on leave at the same time. It was in that context he raised whether the applicant could cancel her leave. He stated: The prospect of the Applicant cancelling her leave between 11-14 June 2013, was raised with the Applicant, as a potential solution to the staffing issue. The Applicant told me that she had already booked and paid for her flights because the leave had been approved. I understood that the Applicant raised this because she was trying to support why her leave needed to be taken. I spoke to Commander Hurst about this and she asked me to confirm that this was the case. I then asked the Applicant to provide me with details confirming the terms of her booking. If the Applicant had not paid for her flights, or they were flexible in their terms and conditions, it may have been easier to again ask the Applicant to change her leave dates however the Applicant confirmed that she had paid for her flights. I verbally requested that the Applicant consider again varying her leave, however she was not willing to do so for personal reasons, which I believe related to her partner's days off, in addition to the fare term and conditions, I deny that the Applicant was asked to provide a submission as to why she should retain her leave. 372 Detective Superintendent McQuillan's evidence was that once he received an explanation from the applicant about the penalties she would incur in relation to cancelling or changing her flights, and her personal reasons for taking leave, he accepted these were "reasonable objections" to changing or cancelling her leave, although that he had not required that level of detail. He confirmed that Commander Hurst made it clear to him there needed to be two members at work, and therefore two positions needed to be backfilled. His evidence was: After I had spoken with Commander Hurst, I told the Applicant that we needed to have at least two members working in the team to backfill. I did not tell the Applicant that she would not be able to take leave unless 2 people were found to backfill. This conversation took place on 30 May 2013. I did not tell the Applicant that she was directed to find a backfill in order to take leave. My comments to the Applicant were intended to be collegiate and aimed at finding a solution to a problem, I was saying to her we have to find two members to backfill let's do that together to fix the problem. I was certainly not leaving this all up to the Applicant. As a solution to the issue I said words to the effect of, you find one and I will find one. This is recorded in my Official Diary for 30 May 2013. I have recorded "Discussed leave situation and M-COR requirements with Richens. Offered to attempt to source 1 x TL replacement via CP-CR [note: Crime Program - Corporate Reporting Team] and Richens to source via Colbran BST. Discuss possibility of Schindler [note: FA Tanya Schindler] acting with Pigram [note: Sam Pigram, the Team Leader of the CP-CR team]". … I have also reviewed my diary notes for that period and I state in those notes that I spoke with the Applicant on Thursday 6 June 2013. I informed her that her leave had been approved due to a number of circumstances, which included her own personal welfare and circumstances, and the need for her to consider her future placement options within the AFP in conjunction with her partner, who was also an AFP member. I was aware that the efforts of the Applicant and her partner to coordinate their deployments had not been successful, and this was causing significant distress to the Applicant. In my notes I make mention about being concerned about the Applicant's welfare and that the leave was approved for welfare reasons including issues with the Applicant's partner that she raised in her email dated 29 May 2013. I was very mindful to be as supportive of the Applicant as possible because I was aware that it was difficult for the Applicant not to be with her partner. I had noticed that throughout my time within the team, the Applicant had seemed withdrawn, upset and pre-occupied. I strongly believed that, regardless of any alternative arrangements which had been put in place, it was important for her own wellbeing to take time away from the workplace and to sort out the many issues she was dealing with, including her future career management, attempts at co-location with her partner, and matters pertaining to her property. (Original emphasis.) 373 I accept this evidence. Detective Superintendent McQuillan was frank in his oral evidence, and my sense of his evidence was that he was conscious he did not handle the backfill issue and the leave requests as well as he might have. I found him to be a straightforward witness, and I found his evidence indicated he understood the strain the applicant was under, and that he attempted to accommodate what he considered was in her interests, as well as the team's operational needs as Commander Hurst explained them to him. 374 Insofar as it was suggested that Commander Hurst was the person responsible for imposing more onerous conditions on DS Richens than the other sergeants before she could take her second period of leave, I am not satisfied on the evidence that Commander Hurst's conduct was designed to, and did, treat DS Richens differently from the other sergeants. An important factor in that conclusion is the evidence - given by Commander Hurst and as I understand not contested - that the second leave request was put in by the applicant relatively late; that is, only a couple of weeks before the leave date. By this stage, it appears that other officers had already submitted their requests for leave and had that leave approved. 375 As I have found, Commander Hurst was already frustrated with DS Richens around this time. She admitted as much in cross-examination. She denied being angry, but I have found she was. It might be the case that this frustration and anger led Commander Hurst to be more insistent than usual with Detective Superintendent McQuillan that two backfill positions needed to be identified before DS Richens could take her leave on 11-14 June 2013. If that was the case, that insistence could be described as differential treatment, but the problem for the applicant remains that the reason for the treatment is not that she sought to exercise her right to take leave. The reason for the treatment was Commander Hurst's annoyance with her for rejecting the transfers to Brisbane and Melbourne that Commander Hurst had worked hard to support her to secure. The second claim would fail on that basis. 376 However, although as I say it might have been the case that Commander Hurst was more insistent about backfill than she might otherwise have been, I am not persuaded the applicant has proven this on the balance of probabilities. The reverse onus does not apply to proof of adverse action - only to the reason. This issue is about whether there was adverse action at all, in the sense of differential treatment. Commander Hurst was cross-examined briefly about this, and I do not consider the applicant has established Commander Hurst was in effect singling her out to impose more onerous conditions on her leave. Rather, Detective Superintendent McQuillan having thought he had solved the issue by changing the leave dates then discovered there was still shortfall, which Commander Hurst insisted be addressed. DS Richens was taking leave in somewhat urgent circumstances, because of her distress, and had locked herself into flights. There was no doubt a real sense of tension around her request for leave. But I am not persuaded Commander Hurst was, on this matter, being simply vindictive, which is what the applicant's allegation amounts to. In any event, as I have found, on the basis of Detective Superintendent McQuillan's evidence, it was he who was required to find two backfill positions, and he passed the task of finding one of them onto DS Richens. There is nothing discriminatory about that. 377 As to the reason for the treatment, even if I am wrong in my conclusion on adverse action, I do not find DS Richens was treated as she was because she exercised her right to take leave. 378 She was treated as she was because Crime Operations was a small and busy team, and too many officers had been approved to go on leave at once. Commander Hurst set about putting arrangements she considered necessary in place to ensure coverage, and to ensure the work which needed to be done could be done. The AFP has discharged its onus of proving that the exercise of DS Richens' right to take leave was not a reason for her treatment, because it has proven that operational considerations within Commander Hurst's team constituted the reason underlying that treatment.

[57]

The allegations about the NPSC application and "deferral" 379 On the applicant's case, the AFP's conduct on this claim arose because she sought to take the leave which is the subject of the second claim. When what I shall describe as the "backfill requirements" were made known, the applicant complained about being treated differently. The applicant's particulars of claim (at [11]) allege she complained, orally and in writing, to at least four different people: Ms Ryan, Superintendent Colbran, Sergeant Hall and Detective Superintendent McQuillan. 380 This claim seeks to link both her seeking to take leave, and her complaints about the backfill requirements imposed on her, with Commander Hurst's direction to her that she needed to make a transfer application to the NPSC in June 2013, which process was scheduled to take place while she was on leave. 381 The adverse action is said to be directing DS Richens to apply for a transfer through the NPSC process, and then not permitting her to defer her application so that she could try and secure a transfer to positions for which she sought to apply, independently of the NPSC process. 382 It is not in dispute that it was Commander Hurst who directed DS Richens to apply to the NPSC, and therefore it is her reasons for doing so which must be evaluated. The "deferral" allegation is less clear, in terms of who the actor is alleged to be, but in [22] of the amended complaint it would also appear to be Commander Hurst. 383 This aspect of the third claim must be rejected. That is because: (a) first, as I explain below, it is not even consistent with DS Richens' own evidence about the sequence of relevant events; (b) second, there is no evidence her taking of leave was the catalyst for the requirement to apply to the NPSC; and (c) third, Commander Hurst was not aware of DS Richens' complaints to Ms Ryan or Sergeant Hall, and irrespective of being aware of some "tension" concerning the leave through Superintendent McQuillan, this could not have been a contributing factor to Commander Hurst's conduct. 384 These matters are sufficient to dispose of this aspect of the third claim, even if the Court were to assume in DS Richens' favour that the requirement she apply to the NPSC, and the refusal to allow her to "defer" that application, could constitute adverse action within the terms of item 1(c) of s 342(1) of the FW Act. I turn to explain why these matters are sufficient. 385 On DS Richens' own evidence, she withdrew from the Melbourne transfer on 23 May 2013, by sending an email to Commander Hurst. That was after the unpleasant interaction with Commander Hurst on 22 May 2013 about the proposed delay in the timing of the Melbourne transfer. SC McPherson was told on 24 May 2013 that her application to transfer to Canine Melbourne had not been successful. It was on the same day that DS Richens submitted her leave application for 3-6 June 2013, only ten days ahead of her proposed leave dates, and on the basis of her "urgent wellbeing need", as she describes it in [91] of her October 2017 affidavit. There was then the conversation on 28 May 2013, in which Commander Hurst told the applicant her time in Crime Operations was at an end, and on the applicant's evidence, directed her to apply again to the NPSC and told her that "you will be raised at the NPSC" on 12 June 2013 (I note that the meeting in fact took place on 13 June 2013). There then followed the sequence of events which I have referred to under the second claim about the alteration of DS Richens' June 2013 leave dates. 386 In other words, it is plain, as I have already found, that the direction by Commander Hurst that DS Richens apply again to the NPSC was because DS Richens had turned down the Melbourne transfer. Commander Hurst had decided DS Richens would not remain in Crime Operations in Canberra, and set about having the NPSC determine where DS Richens should be placed. As Commander Hurst makes clear in her December 2017 affidavit (at [73] onwards), in her discussion with Assistant Commissioner Lancaster on 6 June 2013, the issues of DS Richens' performance, and her placement, were discussed: On 6 June 2013, I met with the Assistant Commissioner for Crime Operations Steven Lancaster to have a general discussion about how the Crime Operations team was going. During this meeting, I decided to discuss the Applicant's situation in relation to transfer requests and her leave with the Assistant Commissioner and seek his guidance. It was my view that there were the following issues in relation to .the Applicant that I needed guidance on: (a) I considered the Applicant had performance issues including that I had observed the Applicant was very rarely at her desk and I often saw the Applicant talking outside on her mobile phone which was not common practice amongst other members in my team. I had also been informed by Superintendent Booy and McQuillan that the Applicant was not engaged with the team. (b) The Applicant was taking a lot of unplanned leave - which was leave that was being sought within a few days or couple of weeks of the application or soon after returning from other leave. The Applicant appeared to be making her leave requests a priority despite the fact that the team was finding it difficult to backfill positions or in circumstances where others were planned to take leave at the same time. (d) I was concerned about the Applicant's welfare given that she had told me and Superintendent McQuillan that she was stressed due to relationship issues. (d) The Applicant had sought several transfers to other roles or locations and after being offered the transfers, had withdrawn from the offers. I considered this indicative of the fact that the Applicant did not want to remain in the Crime Operations team but was only prepared to transfer in circumstances that suited her perfectly. AC Lancaster advised me that the Applicant was required to submit her preferences to the NPSC or that her move would be tabled at the next NPSC meeting regardless on the basis that Constable Thorn was going to her position in the Crime Operations team from Melbourne. AC Lancaster stated the Applicant had been in the Crime Program for over three years and as such it was a good time for her to move for her development. I provided this advice to Superintendent McQuillan. 387 Commander Hurst accepted in cross-examination that despite this evidence, it was in substance her decision that DS Richens should apply to the NPSC, and she accepted DS Richens had no choice once that decision was made: But isn't this really the scenario, Commander, that you had made that decision and you had it ratified or endorsed by Assistant Commissioner Lancaster? Isn't that really the situation?---I - I discussed it with Assistant Commissioner Lancaster and he advised that his decision was that that - go ahead and the application be put in on 6 June. You didn't put any opposing scenario to Assistant Commissioner Lancaster, did you?---No, I didn't. Right. And that's because you had already decided that's what you thought should happen, or you told the applicant that's what should happen?---I had suggested that to Federal Agent Richens on 28 May. That she should go before the NPSC?---That's correct. I see. And because it - and no matter actually was said, and there will no doubt be - views will differ and memories will differ. No, but what was said - no matter what was said, from the - you can understand from the applicant's perspective, being - you being a commander and she being a sergeant, that she would follow that requirement?---Yes, that's correct. So it was not something that she had any choice about?---No, that's - that's correct. 388 This evidence confirms that the need for DS Richens to apply to the NPSC had nothing to do with her leave, and everything to do with her declining the Melbourne transfer. The fact that Commander Hurst expressed concern about the amount of leave DS Richens was taking does not alter my conclusion. Clearly Commander Hurst had by this stage lost any sympathy she might have had for DS Richens, and was focussed on moving her into a placement away from her own area of Crime Operations. That, in my opinion, all stemmed from her admitted frustration with DS Richens declining several transfers the Commander had supported her for. 389 Finally, as the AFP submitted during the trial and during the examination-in-chief of Commander Hurst, it became apparent that Commander Hurst knew nothing of DS Richens' complaints to Ms Ryan and Sergeant Hall concerning her leave. Commander Hurst admitted she knew there was "some tension" about DS Richens' leave, and that the applicant had complained to Detective Superintendent McQuillan. However, there is no basis at all in the evidence for the suggestion that there was any link between the applicant's complaints about how her leave applications were being dealt with, and the requirement that she apply again to the NPSC for placement. This line of allegations is a good example of how the applicant appeared to see conspiracies against her in the workplace, when there were none. 390 The first aspect of the third claim must fail.

[58]

The allegations about not securing a role in Counter Terrorism 391 There is a second aspect to the third claim. It relates to events from 18 June 2013 onwards. On that day, DS Richens informed Superintendent Booy and Mr Turner that she had identified an investigations role in Counter Terrorism in Canberra, with assistance from Acting Commander Donoghoe. DS Richens deposes that Superintendent Booy subsequently told her the Counter Terrorism vacancy was no longer available to her. She deposes to finding out that another officer, Sergeant Lamont, was given the position, although he had not applied for it. The applicant alleges this series of events occurred under the direction of Commander Hurst, and appears to identify Commander Hurst as the person who undertook the adverse action. 392 The applicant contends she had a workplace right "to identify and seek redeployment to another investigations role", in Counter Terrorism, which she exercised. This would appear to refer to s 341(1)(a) of the FW Act. She relies in her amended complaint on cl 58 of the AFP Enterprise Agreement, which is entitled "Redeployment and Redundancy". The applicant appears to be contending she was "excess to requirements" in Crime Operations, and therefore that this clause was engaged. A suggestion to this effect was put to Commander Hurst in cross-examination, which she rejected. However, there was no development either by way of evidence or argument as to how DS Richens' situation fitted within cl 58, and in particular the conditions in cl 58(2) about when an employee will be considered "excess", and the notification process in cl 58(3). No basis for the engagement of cl 58 was made out by the applicant. That clause cannot be the source of any workplace right. 393 The policies which are contained in the National Guideline which is in evidence, and the apparently related CO7, may or may not give rise to some kind of implied "right" to apply for a position advertised and applied for in compliance with these policies, and such an implied right may or may not be capable of being a "workplace right" for the purposes of s 341 of the FW Act, if these policies and CO7 are properly characterised as a "workplace instrument". However, no argument of this nature was developed on behalf of the applicant. This is not an issue subject to the reverse onus. This was part of the applicant's onus: not only her onus of proof, but also her obligation, through her legal representatives, to articulate and develop a legal argument to support assertions she made. She has not attempted to make any such argument and this aspect of her claim fails at the first hurdle. 394 The applicant did not maintain in her closing written submissions a contention of adverse action based on discrimination on the basis of her sex or sexual orientation, in terms of her treatment relative to Sergeant Lamont. This had, however, featured in her opening submissions at [9]: The Applicant also alleges that there were acts of discrimination against her on the basis of sex and sexual orientation arising out of decisions made by the Respondent, including in relation to the placement of Sergeant Lamont and other male officers in counter-terrorism. 395 There was some attempted examination-in-chief of Commander Hurst directed at that allegation. It encountered difficulties, which are not necessary to set out. However, as a result of exchanges during that examination-in-chief, counsel for the applicant was asked to clarify how the allegation involving Sergeant Lamont was put. The exchange is lengthy, but it is necessary to reproduce it in order to demonstrate first, what was said not to be alleged, and second, the vagueness of what was said positively to be alleged: MR McKENNEY: Your Honour, that's why I got up to object, because I do share your concern about the nature of the questions and the relevance. The applicant's case, your Honour, on Sergeant Lamont vis-à-vis the applicant is about differential treatment. It's about - it's differential treatment in the broader sense of the term, your Honour, which will inform an argument from the applicant about discriminatory treatment, because - I don't want to advocate all the points about it now, your Honour, but, essentially, with Sergeant Lamont, he had been non-operational for a number of years. He had come back into the - he needed to be placed - - - HER HONOUR: Well, just put it this way, Mr McKenney, I mean, is one of the grounds on which the differential treatment is alleged, or the reasons for the differential treatment, said to be that Sergeant Lamont was perceived to be heterosexual? MR McKENNEY: No. It's not put in those terms, your Honour. No. HER HONOUR: So it's not because Commander Hurst thought she was appointing someone or endorsing someone who was heterosexual as opposed to not endorsing someone who was gay? MR McKENNEY: No, your Honour. HER HONOUR: That's not part of the applicant's case? MR McKENNEY: No, your Honour, and it's not put - it's not put in the complaint in those terms. HER HONOUR: Well, just let me have a look at that. Where is it in the complaint? 26th? MR McKENNEY: Yes. So it's put - it's couched in the terms of treating the applicant differently to Sergeant Lamont. HER HONOUR: There has got to be a reason alleged, Mr McKenney. MR McKENNEY: Yes. I - - - HER HONOUR: There has got to be a prohibited reason alleged, otherwise you can be treated differently on the basis of merit, and there's nothing wrong with that, for example. MR McKENNEY: Yes. HER HONOUR: So - but what you're saying for the purposes of the current objection - - - MR McKENNEY: Yes. HER HONOUR: - - - is that it is not part of the applicant's case that the applicant was treated differently to Sergeant Lamont in the sense of him being supported and obtaining the transfer into counter-terrorism because he was perceived to be heterosexual and your client was perceived to be gay. That is not part of the applicant's case. MR McKENNEY: That is not part of the applicant's case, your Honour. There's no - and there's no evidence to that effect, but what that - what that - and these, obviously, need to be expanded on in the submissions, your Honour - is about how the treatment of the applicant differently was adverse action, and there needs to be a base to understand that, your Honour. HER HONOUR: Well, I'm not sure I understand what you mean there. MR McKENNEY: Well, it will be, your Honour, on the basis - I think it's in section 342 in terms of discrimination between employees. HER HONOUR: Yes. But discrimination is given a meaning by picking up - - - MR McKENNEY: Yes. HER HONOUR: - - - all of the provisions of the state and federal anti-discrimination legislation, all of which are couched in terms of protected attributes. MR McKENNEY: Yes. Yes. HER HONOUR: So what's the protected attribute? MR McKENNEY: Well, it's not sexual preference, your Honour, no. HER HONOUR: Well, sooner rather than later, Mr McKenney, you're going to have to tell me what it actually is, rather - as well as what it's not. But for the purposes of this objection, I - that has clarified the matter and so, Mr Snaden, I am taking it - and therefore I'm taking it that you can take it that this is not part of the applicant's case. MR SNADEN: Yes. That's' - I will take it that way, your Honour, that - - - HER HONOUR: And the applicant will be held to that. MR SNADEN: And, in effect, that is an abandoning of part of paragraph 44 of the amended complaint. HER HONOUR: Or a positive clarification that paragraph 44 doesn't apply in that way to this allegation, at least. MR SNADEN: To paragraph 26, yes. I - - - HER HONOUR: Yes, that's' right. MR SNADEN: That, of course, then begs the inevitable question of whether there are other aspects. Because I'm addressing the case as we perceive, as I opened on it, and - - - HER HONOUR: Well, if there are, Mr Snaden, Mr McKenney is going to have to cross-examine Commander Hurst on it and I will give you, in the circumstances, considerable latitude in re-examination - - - MR SNADEN: All right. All right. HER HONOUR: - - - once you hear how it's put about Sergeant Lamont - - - MR SNADEN: Well, I'm grateful for the - - - HER HONOUR: - - - rather than asking you to anticipate it now. MR SNADEN: I'm grateful for that indication and I will - that will substantially shorten my examination-in-chief. HER HONOUR: Yes. All right. Can Commander Hurst be recalled, please. 396 The foreshadowed development never arrived. The Court treats this aspect of the applicant's allegations as abandoned.

[59]

Fourth claim: refusal of long service leave in June 2013 - adverse action because of the exercise of a workplace right 397 I have noted above in my summary of the allegations as finally put that the adverse action in this claim is alleged to be the refusal of DS Richens' application to take long service leave between 1-12 July 2013. This is the one allegation the AFP accepts (in a qualified way), in terms of its characterisation as adverse action, in that permission to take leave was granted, but DS Richens was required to work an additional two days before she took her leave. In other words, the AFP's admission is limited to the effect of denying long service leave for two days. 398 The timing of this impugned conduct should be recalled. DS Richens sought to take this long service leave during her last two weeks in her position in Crime Operations, before her transfer to Learning and Development which, it will be recalled, was the placement to which she objected. 399 The person alleged to have engaged in the adverse action is Superintendent Booy. He denied taking the adverse action for any prohibited reason, and his evidence was that he wanted DS Richens to finish certain tasks, or have them in a proper state of handover, before she went on leave. 400 In cross-examination Detective Superintendent Booy gave evidence that he was aware DS Richens was in a relationship with another officer, and that he knew she intended to spend this long service leave with her partner. I accept that evidence. Although Detective Superintendent Booy accepted long service leave was an entitlement under the AFP Enterprise Agreement, he also emphasised that there needed to be agreement between the AFP and the employee as to when it was taken, and he denied the proposition that it was granted "as a matter of routine": Yes. And that - would you accept this, Superintendent, that, as a matter of routine - and you've been - in terms of approving people's leave, as a matter of routine, if the request is made, it's normally approved?---Not necessarily, no. 401 As to how and why Detective Superintendent Booy specified DS Richens could take her long service leave only starting on 3 July 2013 (and not 1 July 2013 as she had requested), his evidence-in-chief was: I had met with Sergeant Richens earlier, on 18 June. It was on that day that we had spoken about her transfer, and the National Placement Subcommittee decision to transfer her to recruit training for learning and development. And it was on that day that I went through the work on hand that Sergeant Richens had, an outline of her current leave and training requirements, and certainly at that point, some five days - seven days - earlier, that long-service leave request had not been forecast. So, the meeting on the 28th was to understand the current standing and status of her work, and whether sufficient actions had been taken that would enable me to then determine that she could take that long-service leave. So, in effect, the long-service leave was not denied her, but I wanted to have a conversation - an agreement - reach agreement about what components of her work could actually be undertaken to a satisfactory degree before she commenced her long service leave. Did you reach any such agreement?---Yes, we did. And what was the nature of that agreement?---Sergeant Richens agreed that she could undertake some additional actions with respect to an - a body of work in and around immigration detention centre referrals, communicating with both internal and external stakeholders, some actions with respect to creating customised folders within a - a national PROMIS case. PROMIS is our national case management system. And finalise some handover documents and then she could commence leave. She agreed she could undertake that work by Tuesday, 2 July and then she could commence long service leave as of Wednesday, 3 July. 402 I accept this evidence. I consider Detective Superintendent Booy gave straightforward and clear evidence on this issue, which was consistent with the kind of approach one would expect in an organisation such as the AFP. 403 In her closing written submissions, the applicant contends: It follows that a reason for initially refusing the leave was a prohibited reason, that Richens had sought it in the first place and which was only approved (less two days) when Booy recognised that his stated reasons for refusing the leave were unjustifiable. The evidence shows therefore that the reason moving Booy to refuse leave initially was that Richens had exercised her workplace right to long service leave. (Footnote omitted.) 404 There is a circularity to this contention which raises immediate difficulties. There is also an illogicality: if Detective Superintendent Booy had some fixed view that the applicant should not be able to take her leave entitlement, it is more probable that he would have refused the request entirely, or substantially. Instead, he required her to spend two extra days preparing her work for handover. The applicant's contention attributes a high level of irrationality to Superintendent Booy's decision-making, for which I see no evidentiary support. The more likely explanation, and the one I accept, is the one he gave. 405 I further accept the AFP's submission (at [122] of its closing written submissions) that Detective Superintendent Booy's evidence is supported by the evidence of Ms Sloane (formerly Sergeant Hall), who attended the 28 June 2013 meeting as the applicant's support person. Ms Sloane's evidence in examination-in-chief was: The applicant felt that she had a - a substantial project file and believed that all the information anyone taking it over needed was within that file, including everything that she done and her projected work. And Superintendent Booy - I can't remember the exact words, but my impression would be that he believed it was a lot for someone to wade through and things could be missed and that he wanted, you know, just an updated status report on the project. 406 The fourth claim fails.

[60]

Fifth claim: treatment after complaint about a performance review in November 2013 - adverse action because of the exercise of a workplace right 407 This claim concerns Superintendent Booy's conduct of a review of DS Richens' work performance in October 2013. It contained some adverse comments by him, although the overall outcome of the review was that the applicant was rated as "fulfilling" the terms of her PDA. The applicant complained about Superintendent Booy's comments, and it is how this complaint was treated which is at the centre of the fifth claim. 408 The fact that DS Richens makes this allegation as part of her claims reveals much about what I consider to be some of the underlying difficulties with her proceeding, and much about her state of mind in her workplace during these years. There is no objective basis for this claim, and the AFP's conduct (and Superintendent Booy's in particular) was entirely orthodox in its context. However, DS Richens' evidence, and the fact of this allegation taken right out of its proper context, demonstrates how skewed her perspective had become. She was apparently not able to accept any feedback which had a negative aspect, or which was in any way critical of her attitudes and performance at work. That is how under siege she felt, but for whatever reason those emotions were playing out in circumstances where those around her appear to have been generally acting reasonably. As I have stated several times in these reasons, I do not doubt the genuineness of the emotions DS Richens experienced (and to which she deposed), but on the evidence before me, there was no objective basis for what she perceived was motivating those around her. Whether or not those responsible for her supervision and mentoring within the AFP might have been able to better assist her to see that some of her perceptions were disproportionate, and to assist her to feel better supported (even if in fact they considered she was supported), is not a matter on which any findings can or should be made. 409 At [276] of the applicant's closing written submissions, it is clarified that this claim is based only on an allegation that the AFP's treatment of her was undertaken because she had exercised her workplace right to complain about her PDA review. It is not alleged any person within the AFP acted as they did in relation to this event because of the applicant's relationship with SC McPherson, or because of the applicant's sexual orientation. 410 Although it is not a major point, I pause here to note that the movement between prohibited reasons is also something which, when the applicant's case is considered as a whole, tends to weaken her case, in terms of the probabilities of her alleged reasons being the true reasons for the alleged conduct. That is especially so where the applicant has either backed away from an initial allegation of conduct being based on her sexual orientation or her same-sex relationship, or where she did not identify that as a reason. In a case which concerns a course of conduct, or a sequence of conduct, by essentially the same actors over a sustained period of several years, to believe that it was only on particular occasions that their conduct was actuated by the applicant's sexual orientation or same-sex relationship when they engaged in adverse action, and on other occasions it was for a different prohibited reason, is quite a challenging exercise. 411 The applicant contends that although she complained about Superintendent Booy's comments to Superintendent Stokes, and that he asked for an audit of her PDA, the Team Leader of the Performance Management Unit, Ms Lynch, declined to conduct the audit. DS Richens relies on item 1(d) of s 342(1) of the FW Act, alleging she was treated differently to another AFP officer, Sergeant Smith, whom she alleges had a similar complaint about her PDA review and had it dealt with "by way of resolution". 412 At a factual level, it is appropriate to set out the way DS Richens first expressed her complaint to Superintendent Booy on 18 October 2013: Darren, I note that my PDA has been finalised as PDA fulfilled, however I dispute the three (3) explicit and implicit claims of underperformance made in the 'Team Leader Commentary' and 'Development Needs'. I dispute both the content of the claims and the process through which they have been raised, Below, I have provided information in rebuttal to both the content and process of these claims. I request you review my rebuttal and remove the three explicit and implicit claims of underperformance (appearing in six (6) separate comments) from my PDA within two (2) weeks (by close of business Friday 01 November 2013). I note I completed the 'Self-Assessment' for the PDA period March to August 2013 and submitted such to you as my Coordinator on 12 August 2013 and you 'Closed the Cycle' on 14 October 2013. 1. Claim of Underperformance: Work Level Standard 3: Cultivates Productive Working Relationships Comment 1: "FA Richens sat in the immediate vicinity of the team and had equal opportunity to engage with the team"; Comment 2: "At times, FA Richens appeared to be withdrawn, unapproachable and did not engender herself to the wider team", and Comment 3: "Notwithstanding this, FA Richens does need to be aware of how her outward expression of emotion is perceived by others and would benefit from employing more emotional intelligence in this regard." Comment 4: "FA Richens has outlined her personal circumstances which in some part contributed to her situation." … 2. Claim of Underperformance; Work Level Standard 1: Achieves Results Comment 5: "... FA Richens progressed areas of operational work at a satisfactory level. The work was not timely, nor outstanding, however for purposes of the PDA assessment met basic requirements." … 3. Claim of Underperformance: Work Level Standard 4: Shows Personal Drive and Integrity Comment 6: "I believe that FA Richens has further development to be undertaken before being considred by HDA at the EL level, however I am sure that her current supervisors are working towards achieving her developmetn requirements." (Sic.) (Original emphasis.) 413 DS Richens was dissatisfied. She complained to Superintendent Stokes by email on 22 November 2013. In this email, she relied on cl 17 of the AFP's PDA Procedures, which was in the following terms: 17. Performance Review Audit A Performance Review Audit (PRA) may occur where: • an employee disputes a claim of underperformance and/or • the Management Team is unable to resolve a serious intractable performance dispute (not yet the subject of employment suitability considerations) The examination of a performance dispute is managed by the National PDA Manager. The role of the National PDA Manager in a performance dispute is to review all relevant material, conduct interviews with the parties to a dispute and (if necessary) their referees, and formulate finding(s) based on the evidence presented. These finding(s) shall be submitted to the National Manager Human Resources (NMHR) for consideration and final decision. The review mechanism for dealing with PDA disputes requires communication and earnest attempts at resolving a performance issue informally. The PDA review mechanism differs from other conflict resolution mechanisms in that an independent audit can be invoked where genuine informal processes have failed to achieve an outcome. Generally, the process is as follows: 1. It is the responsibility of the team member to discuss a dispute with their team leader 2. If the team member is still unhappy with the dispute/evaluation, they are to write their rebuttal (highlighting their areas of disagreement with evidence to support their view) in the "Team Member Comments" tab in the feedback exchange section of the PDA and submit to the team leader 3. If the team leader remains unresponsive (or unwilling to shift their assessment to the mutual satisfaction of both parties), the team member and/or team leader is to notify the Manager One Removed (MOR) of the disagreement 4. The MOR is to attempt to resolve the matter without delay (seeking assistance from the Senior Business Advisor (Human Resources) or other available local and/or corporate areas as required) 5. If the performance dispute cannot be resolved within the business area by the MOR, the matter is to be referred without delay to the Management Team for review. NOTE: A Performance Review Audit (PRA) cannot be requested unless steps 1 to 5 have been observed. If the performance dispute remains unresolved, the Management Team may then refer the dispute to the National PDA Manager for 'independent' consideration and PRA review. (Original emphasis.) 414 On its terms, the cl 17 "Performance Review Audit" process only applies where there is either "a claim of underperformance" which an employee disputes, or "the Management Team is unable to resolve a serious intractable performance dispute". On any view, what Superintendent Booy had said in the applicant's PDA did not fit within the second criterion. Ms Lynch took the view (which the applicant's closing written submissions now concede was a reasonable one) that what Superintendent Booy had said did not fit within the first criterion either. That was, in my opinion, a sensible and reasonable approach for her to take. 415 This was, relevantly, Ms Lynch's evidence in cross-examination: MR McKENNEY: Now, you say you've never said anything to turn on the comments in the PDA. I gather you wouldn't rule out the possibility of that occurring?---I have never known it to occur. I have never seen it occur. … MR McKENNEY: For example - well, for example, Ms Lynch, is it possible that someone's application for a promotion when regard is had to a PDA that something may turn on the comments in the PDA?---When someone applies for a promotion, at that time, we would do a PDA check and just ensure that there was a PDA in place and one fulfilled. We wouldn't be looking at the comments. Now, would it not depend, Ms Lynch, on whether the selection panel decided to look at comments?---I'm not completely aware of the recruitment guidelines in - in that way. There may be scope for a delegate to request those but I've not - I have no knowledge of that. So in other words - now, it's not being critical but there is a possibility, is there not, that a selection panel might want to see comments made by a former supervisor about a PDA as part of the selection process?---I've never seen it occur but I can't see that it - that it couldn't possibly. 416 Ms Lynch frankly conceded in cross-examination that Superintendent Booy's comments were negative in character, and that if someone on a selection panel were to look at them (contrary to her evidence that she understood they would not) they might have an adverse effect. 417 That concession is not capable of establishing differential treatment for the purposes of item 1(d) of s 342(1). As the AFP's evidence disclosed, it may be expected that a PDA might contain comments about an officer's weaknesses, or areas for improvement, as well as her strengths and achievements. 418 Superintendent Booy did not respond to DS Richens' complaint on 18 October 2013. However, after making her complaint to Superintendent Stokes, DS Richens received the following response from Detective Superintendent Russel Smith on 9 December 2013: Kath - as discussed by phone with you just now: I have this date spoken with Det/Supt Booy who stated the PDA comments he made when finalising your PDA are from his perspective accurate and he was not willing to remove/alter same. I have since discussed this with HR advisory and if you wish to take this to the next step you will need to contact HR Advisory directly who will review the PDA process. Regards, Russ A/MCOR 419 Ms Lynch confirmed in cross-examination that on her view of how the PDA Procedures were intended to operate, if anything was to be done further about DS Richens' complaint, that would be the decision of Mr Turner, as the AFP's "Coordinator of Industrial Relations and Acting Manager". She stated that she remembered: …the feeling at the time was that there was something more going on that I wasn't aware of. 420 I infer this is a reference to Ms Lynch being aware that DS Richens had, by early 2014, been involved in making a number of complaints about various aspects of her treatment by the AFP. There is nothing inappropriate or sinister in Ms Lynch agreeing that was how she felt. Given her position in Human Resources, it is entirely understandable for her be conscious she was dealing with an employee who had, over the last year, claimed to have experienced a great deal of unfair and incorrect treatment at the hands of the AFP. After several answers in cross-examination that were non-responsive, Ms Lynch eventually admitted that it might have been fair and reasonable for her to have spoken directly to Superintendent Booy about why he made the comments he did, since DS Richens was complaining about them. That was an appropriate concession, but it does not take the applicant's allegation of adverse action any further: it is simply a recognition by Ms Lynch, with hindsight, that she could have handled the situation better than she did. 421 On the way the applicant's closing written submissions are framed, it would appear the allegation about the prohibited reason is laid at the feet of Mr Turner, rather than Ms Lynch: On the face of it, the response from Lynch, the performance review member, that the review had been "fulfilled" may be reasonable. But when Richens pressed Lynch further for the review to be done of the performance assessment, Lynch referred the review request to Turner. Turner did not give any consideration to the referral from Lynch. Turner should have provided a response to Lynch, to be fed back to Richens. This did not happen. It should be inferred that a reason for Turner's non-response was that Richens review request should go no-where. 422 Further, I note that one of the Fair Work Commission conciliation conference outcomes was that there would be a review of the applicant's PDA. The evidence of Detective Superintendent McQuillan discloses that this occurred. It is not clear to me what further relief, in those circumstances, would have been appropriate. 423 Neither party's closing written submissions referred to the evidence of Mr Turner on this matter, even though logically that appeared to be where any ultimate responsibility for how DS Richens' complaint was treated appeared to lie. However, Mr Turner was neither examined nor cross-examined on this topic. Therefore, there is no evidence one way or the other about the attitude Mr Turner brought to whatever Ms Lynch had passed onto him about DS Richens' continued dissatisfaction with the PDA audit process not being available to her. 424 I reject the applicant's contention that the way her complaint about her PDA was conducted constituted adverse action against her. The speculative possibility that in the future some unknown and unspecified member of a selection panel might look at comments made by Superintendent Booy is not probative itself of adverse action as defined in item 1(d) of s 342(1). 425 The applicant entirely failed to prove her allegation that she was discriminated against because Sergeant Smith had comments on her PDA review altered. This was her evidence on the matter (which is not in reality evidence, but a contention): When I complained about my workplace rights and pursued the dispute resolution process, I was treated different to others who have had their complaints investigated and suitably resolved. I know that Sergeant Sue Smith (Sergeant Smith) made a complaint about adverse comments made in her PDA. These comments were investigated and removed. I know this because I used the same mechanism to report the adverse comments made in my PDA. I was informed of Sergeant Smith's complaint, the similarities to my complaint and the successful resolution of her complaint by Dennis Gellatly (Sergeant Gellatly), Senior Constable Ian Bridle (Senior Constable Bridle) and Senior Constable Jon Hunt-Sharman (Senior Constable Hunt-Sharman) from the Australian Federal Police Association (AFPA). Her matter is described on the AFPA members website as a case study titled "WHS & the PDA. (Original emphasis.) 426 The AFP submitted in its closing written submissions (which at one point appear to incorrectly identify Sergeant Smith as a male) that there was no evidence before the Court about what complaint Sergeant Smith made regarding her PDA, nor any evidence as to the outcome of her complaint. The AFP referred to affidavit evidence of Ms Lynch in which she deposed that she did not make any decisions in relation to Sergeant Smith or review Sergeant Smith's PDA. Ms Lynch also deposed that her understanding was that Sergeant Smith's dispute was not about a review of comments in a PDA and was not resolved pursuant to the PDA Procedures dispute resolution process. DS Richens was briefly cross-examined on this matter and acknowledged that any information she had been told about Sergeant Smith's complaint was second-hand: either from the Australian Federal Police Association, or that Association's website. 427 Where an allegation such as this is made, that is simply an insufficient probative basis to satisfy the Court of the existence of discrimination between one employee and another, in the sense of differential treatment. 428 Even if the conduct underpinning the fifth claim was found to be adverse action, I find the AFP has discharged its onus of proving the conduct was not undertaken because DS Richens had made the complaint in the first place about her PDA review. This allegation, it can be seen, has a similar kind of circularity to the previous claim. Even putting that to one side, it is obvious on the evidence that Ms Lynch refused to conduct an audit because she did not consider it fitted within the PDA Procedures. In my opinion she was likely to be correct in her view, but that does not matter: that was the true reason for the conduct, and it is not a prohibited reason. In her amended complaint at [33], the applicant directs this allegation against Ms Lynch only. As I have noted, there is no evidence about what Mr Turner did in relation to this matter, let alone why he did it. In circumstances where there is no clear allegation by the applicant against Mr Turner, I do not consider the AFP was required to joust at shadows and adduce evidence from him about it. 429 These conclusions mean I do not need to determine whether the complaint made by DS Richens was or was not the exercise of a "workplace right" by her. The AFP contends it was not, because it fell outside the terms of cl 17 of the AFP's PDA Procedures, which I set out above. There is some force in that argument, but it is not necessary to determine it given my conclusions on whether the conduct was adverse action and the non-existence of a prohibited reason. Nor, more broadly, is it necessary to enter the debate about what is meant by the phrase "is able to make a complaint" in s 341(1)(c) of the FW Act and whether it is limited to circumstances where by law or workplace instrument an employee has an entitlement to complaint: see Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 at [28] (Greenwood, Logan and Derrington JJ); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346 at [625] (Dodds-Streeton J); The Environmental Group Ltd v Bowd [2019] FCA 951 at [128]-[129] and [156] (Steward J) and Regulski v State of Victoria [2015] FCA 206 at [160] (Jessup J).i

[61]

Sixth claim: refusal of transfer to Counter Terrorism following complaint to the Fair Work Commission - adverse action because of the exercise of a workplace right 430 This claim, although described as one claim, in fact appears to be divided into five separate parts, according to the applicant's closing written submissions. 431 All of the impugned conduct is alleged to have occurred at dates after the applicant lodged her Fair Work Commission complaint. The basic theme for the entirety of this claim is that the impugned conduct occurred because she had made that Fair Work Commission complaint. 432 The first, fourth and fifth parts all concern various applications DS Richens has made, since first lodging her Fair Work Commission complaint, for investigative positions in the AFP's Counter Terrorism unit. 433 The second part concerns the applicant's transfer to a position at Melbourne Airport. 434 The third part concerns the refusal of the AFP to pay the applicant's relocation expenses to Melbourne, when she transferred to Melbourne in May 2015. 435 The AFP makes the following concession at [141] of its closing written submissions: The respondent accepts that the filing of a complaint with the FWC is a workplace right, and accepts that the applicant was treated differently to those that were placed in Counter Terrorism. 436 It then submits that: The question for the Court is therefore: was the applicant's FWC complaint a substantial and operative reason for each decision-making body that did not transfer the applicant into Counter Terrorism from 7 September 2014 onwards? 437 That is certainly the question, given the AFP's concession, for three of the five parts of the sixth claim. It does not address the second and third parts. Those parts are dealt with by the AFP in its closing written submissions, but not specifically under the sixth claim. Nevertheless, there are five parts to the sixth claim which are identified in the applicant's closing written submissions, and they can be said to reflect what is in the amended complaint. The second part of the sixth claim (transfer to Melbourne Airport) reflects [39] of the amended complaint, and the third part (relocation expenses) reflects [40] of the amended complaint. The AFP's submissions concerning the second part, being the Melbourne Airport transfer, are that the applicant had identified and requested that placement, and thus it cannot be alleged that it constituted adverse action. 438 In relation to the third part, concerning the relocation expenses, the AFP submits, in reliance on the terms of the AFP Enterprise Agreement, that the applicant never had an entitlement to be paid those relocation costs (and further submits the applicant was told by Mr Turner in December 2014 that she would have to pay those costs). 439 Despite the fact the AFP did not expressly consider the second and third parts of this claim in the relevant section of its closing written submissions, I propose to consider them as part of the applicant's sixth claim. 440 I do so on the basis that the concession made by the AFP about adverse action extends only to the three Counter Terrorism position allegations. I see no basis on which it would be appropriate to draw any distinction on the workplace right concession, however, that concession should be seen as extending to all five parts of the sixth claim.

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The three Counter Terrorism applications 441 In substance I accept the AFP's submissions that on each occasion when the applicant was not successful for a position in Counter Terrorism for which she applied, it was because those people within the AFP responsible for making the selection decisions decided she was not the best, or most appropriate, officer for the position in question. The AFP has discharged its onus to prove that the reason DS Richens was not appointed to any of the positions she had identified in her allegations was not because she had lodged a complaint against the AFP with the Fair Work Commission. 442 I do not propose to deal with these allegations by reference to a vast amount of evidentiary detail, because they were not developed in closing written submissions by the applicant by reference to any particular evidence. Instead, the applicant's submissions generally footnoted the amended complaint and provided one general cross-reference to an earlier part of the submissions - said to be Part D, but I assume it was meant to be Part E. Part D of the applicant's closing written submissions concerns applicable legal principles. Part E, on the other hand, is headed "Factual background and circumstances". However, this section contains 132 paragraphs and 327 footnote references, and the applicant's closing written submissions do not identify which of all these paragraphs and footnote references are said to prove her allegations under the sixth claim. It is not the Court's responsibility to sift through a morass of factual references to see which ones might be the ones the applicant wishes to identify. Nor is it the respondent's responsibility to do so, although the existence of the reverse onus does cast responsibility on the AFP to identify the evidence on which it relies to discharge its onus. The failure of the applicant's legal representatives in their submissions to develop, by reference to specific evidence, how these five parts of the sixth claim are established, means in my opinion that the Court is entitled to select key aspects of the evidence which appear to it to be the most material to this claim, and otherwise to rely on the AFP's submissions and evidence.

[63]

The 24 September 2014 Counter Terrorism application 443 This application came a few weeks after the applicant had lodged her Fair Work Commission complaint. The advertised position was in Counter Terrorism in Canberra. There was an ISAP constituted to review applications for the position. On 24 November 2014, DS Richens received an email from AFP Recruitment informing her she had been unsuccessful for the position, and that she had 28 days to seek feedback. DS Richens sought feedback, but the contact for providing that feedback, Detective Superintendent Dokmanovic, was preparing for a deployment to Beirut and asked her to contact Detective Superintendent McLennan (the other member of the ISAP) to obtain feedback. 444 At the time he was named as "contact officer" for the Counter Terrorism role in Canberra, Detective Superintendent Dokmanovic deposes to not having had "extensive experience participating in selection panels". He also deposes to not having had any dealings with the applicant prior to her submitting her application for the position. In his evidence, he also described the selection process which was undertaken, and how five candidates were shortlisted for Commander Brian McDonald to choose from. He deposes that the applicant was not shortlisted because other candidates "demonstrated stronger claims against the selection criteria, in that they provided better, more contemporary and/or tangible examples of how they met the criteria". He also deposes that Mr Turner was not involved in the selection process, and that the applicant was not treated any differently from any other candidate who submitted an EOI for the position. Further, he deposes that he was not aware the applicant had made any complaints about her employment or commenced proceedings against the AFP at the time of, or before, submitting her application for the position. 445 Neither Detective Superintendent Dokmanovic nor Detective Superintendent McLennan were required for cross-examination. Their evidence is rational, and being unchallenged, I accept it. 446 There is no basis in the evidence for the applicant's allegation about her non-selection for this position and the AFP has discharged its onus of proving her non-selection was not because she had made a complaint to the Fair Work Commission.

[64]

The September 2015 Counter Terrorism applications 447 The HR Committee of the Regional Operations, Capacity and Capability Committee (or "ROCCC") dealt with vacancies in the Community Liaison Team and Joint Counter Terrorism Team (both within the Counter Terrorism unit) in September 2015, and made two decisions where DS Richens was not identified as a suitable candidate for the positions. 448 I accept the AFP's submissions (at [148]-[150] of its closing written submissions) about who the decision-makers were, and what their evidence disclosed. As the AFP points out, only three of these decision-makers were required for cross-examination. Those individuals were Superintendent Bate, Detective Superintendent Warren and Mr Burnage. 449 There is nothing in their evidence in answers in cross-examination which gave me any reason to doubt their principal evidence, which was that the applicant's complaint to the Fair Work Commission played no role in their decision-making about what positions the applicant should be placed in, or in their decisions to place officers other than the applicant in certain positions. 450 Each of these individuals gave considered evidence, and I have no reason to doubt it. 451 The AFP has satisfied me that in making these appointments in 2015, DS Richens' lack of success was not because she had made a complaint to the Fair Work Commission. 452 I pause here to make an observation about the quality of some of the evidence on which the applicant relied, to illustrate why some of her conspiracy theories which were built on this kind of material are not persuasive. In the context of her allegations about why she was unsuccessful in securing a role in Counter Terrorism, the applicant relied on a contention that: On 1 October 2015, Richens received a text message from Constable Darren Jackson stating that he was advised that Richens had not completed two years in her role at Airport Uniform Policing, and was thus not considered for the two Counter Terrorism positions in Melbourne. (Footnote omitted.) 453 What the evidence of DS Richens shows is that she sent a text message to Constable Jackson, asking him to see what he could find out from another person (one Peta Maddigan) about whether she had secured one of the positions in Counter Terrorism. His response was that he had spoken to her and "decided not to tell you when she said you had probably missed out and would have to do 2 years at the airport". Constable Jackson did not give evidence in this proceeding, but the respondent filed an affidavit from Detective Sergeant Maddigan. She deposes in her affidavit that at the time of the ROCCC HR Committee meeting on 16 September 2015, at which the relevant vacancies in the Counter Terrorism unit were considered, she does not recall knowing the applicant, or being aware of any complaints the applicant may have made about the AFP. At the time, Detective Sergeant Maddigan was performing the role of Acting Coordinator of the Protection Team in Vic-Tas, which required her to attend the fortnightly meetings of the ROCCC. She deposed that in her opinion the applicant needed to complete her two year placement at the airport as she had only performed the Team Leader Aviation role for a few months. Detective Sergeant Maddigan was not cross-examined in this proceeding. However, her affidavit puts the applicant's evidence about the text message in a different light.

[65]

Further Counter Terrorism transfers 454 This next round of decisions were made by what the AFP calls "substantive Coordinators", who decided on Team Leader rotations in May 2017. Their decisions were endorsed by the Peoples Strategies Committee (or "PSC"). 455 The AFP submits that of the relevant decision-makers, only three were required for cross-examination: Commander Beveridge, Mr Burnage and Detective Superintendent Warren. 456 Mr Beveridge had retired from the AFP at the time he gave evidence. He was cross-examined about, at least, whether the applicant was qualified for a position in Counter Terrorism and what steps he took to assist her to find a suitable role. 457 My impression of Mr Beveridge as a witness is that he had tried to a significant extent at relevant times to be supportive of DS Richens. His evidence was that he considered it was not good for her career to stay at the airport too long, and he confirmed this was not an investigative role: … I don't see it as a career-enhancing role. Certainly, you get some skills talking to other government agencies at the airport, but for someone as a sergeant who wants to be an investigator or a superintendent or a commissioner of police, if you spend too long there, yes, I don't - it would be hard to get promoted. 458 Mr Beveridge had tried to find DS Richens a suitable position. He was ultimately the person responsible for securing her the role in the Organised Crime and Cyber team. He made it clear he knew little of the detail about the applicant's Fair Work Commission complaint, other than that there was one, and to the extent it was necessary for him to know whether, as part of the Fair Work Commission conciliation conference outcomes, any "promise" had been made to the applicant that she would be placed in Counter Terrorism. The whole tenor of his evidence, supportive of the applicant as it was, is probative against the applicant's proposition that he and other decision-makers were refusing to select her because of her Fair Work Commission complaint. 459 The cross-examination of the other two witnesses was relatively general, but once again there was nothing in their evidence in answers in cross-examination which gave me any reason to doubt their principal evidence, which was that the applicant's complaint to the Fair Work Commission played no role in their decision-making about what positions the applicant should be placed in, or in their decisions to place officers other than the applicant in certain positions. 460 I found Mr Beveridge particularly even-handed and measured in his evidence and I accept it. I also have no reason to doubt the evidence of Mr Burnage and Detective Superintendent Warren.

[67]

The Melbourne Airport transfer in May 2015 463 The applicant contends in her closing written submissions at [303] that: … from September 2014 onwards, despite Richens requesting it, the AFP (Connelly and Turner) refused Richens returning to an investigative role and put her in a further non-investigations role, at Melbourne Airport, denying Richens the experience in investigations necessary to advance her career. Richens accepted the role in Melbourne in the absence of other suitable transfer options. (Footnotes omitted.) 464 This transfer to Melbourne happened, it is contended, because DS Richens lodged a complaint with the Fair Work Commission. It will be recalled that complaint was lodged on 7 September 2014. A conciliation conference was held about six weeks later and the two outcomes I have described earlier in these reasons were agreed, but the complaint was not closed for some time. DS Richens was informed of her success in being transferred to the Melbourne Aviation team in February 2015, although the transfer did not occur until May 2015. As the narrative set out earlier in these reasons shows, the "swap" which allowed for that transfer was being discussed as early as December 2014. While I accept DS Richens was not satisfied with the position she was being offered at Melbourne Airport, I find her evidence overwhelmingly establishes that she wished to leave Recruit Training in Canberra, and that she was keen to move to Melbourne. Those two outcomes were achieved by her transfer to Melbourne Airport, even if, on her evidence, she felt "pressured" into taking the position. I find it was, at least, a move back into some kind of operational role: see the affidavit evidence of OIC Lane at [6]. By this point in time I find that unless DS Richens secured precisely the kind of position she wanted in Counter Terrorism, her reaction to any transfer offer was going to be a negative one. 465 For that reason, I do not consider that DS Richens' transfer to Melbourne Aviation was adverse action. She was not treated differently on the evidence to any other particular employee in relation to this transfer. Indeed, I find it was a transfer she accepted, in order to move out of Recruit Training in Canberra and move to Melbourne, where most of the potential Counter Terrorism positions seemed to be. However, it should also be recalled that Learning and Development was a portfolio she had noted down on her NPSC application as a placement option, ahead of the June 2013 NPSC meeting, which meeting resulted in her placement in that portfolio. 466 Further, there is no evidence that what actuated the minds of those who facilitated her transfer to Melbourne Aviation was her complaint to the Fair Work Commission. I have no doubt those involved were keen to resolve what was now a long line of complaints by DS Richens, and in that sense may have seen the fact of her moving to Melbourne (where she wished to be, or at least on many occasions had suggested she wished to be) as a stop along the way to that resolution. In my opinion, none of that conduct on the evidence can be expressly or impliedly linked back to the exercise by DS Richens of her right to complain to the Fair Work Commission. None of the evidence given in chief, or more critically in answers during cross-examination, came close to even hinting at such a link.

[68]

The relocation expenses claim in May 2015 467 This part of the sixth claim contends that when she relocated to Melbourne in May 2015, DS Richens had a workplace right to be paid relocation expenses from Canberra to Melbourne, which she sought to exercise on 11 May 2015. The applicant contends the AFP, through Mr Turner, refused to pay those expenses while paying the relocation expenses of other officers in what she contends were comparable situations. DS Richens identifies those officers in her closing written submissions as: L Coleman, Morris, S Coleman, and Jackson. 468 There are no footnotes to evidentiary references to support this submission; only to the terms of the amended complaint. 469 There is in evidence a complaint made by DS Richens on 12 May 2016 to the National Manager of the AFP's People, Safety and Security team about Mr Turner's refusal to agree to the AFP paying these relocation expenses. That complaint indicates that Mr Turner's refusal was based on the relocation not falling within the entitlements set out in cl 63 of the AFP Enterprise Agreement. That was also his affirmed evidence in this proceeding. In her letter, DS Richens sought to argue that cl 63 did not apply because the relocation costs "relate to an undertaking made by the AFP in the FWC". She was referring to the agreement made as an outcome of the Fair Work Commission conciliation conference that the AFP would seek to find her operational roles in Melbourne or Canberra. 470 DS Richens also referred in her complaint to the situations of Sergeant Coleman and Constable Jackson: 4) Relocation costs were met by the AFP for Sergeant Lisa Coleman who vacated a position in Melbourne allegedly enabling this transfer. Sergeant Coleman's relocation to Canberra was at her request and involved a geographical relocation from Melbourne to Canberra. The payment of her relocation demonstrates that I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC. 5) Constable Darren Jackson permanently transferred from Canberra to Melbourne at the same time as me. Constable Jackson's transfer was a direct assignment at his personal request and he received full permanent transfer relocation entitlements inclusive of rental assistance for the past 12 months. This again demonstrates that I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC. 471 Before turning to Mr Turner's evidence, the point immediately to be made about this relatively contemporaneous complaint by DS Richens is that nowhere does she allege that the reason her relocation costs were not being paid was because she made a complaint to the Fair Work Commission. Rather, she expressed the allegation as follows in her letter of 12 May 2016: This again demonstrates I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC. 472 What that appears to mean is that the relocation costs were considered by DS Richens at least to be part of her Fair Work Commission complaint. She appears to be using the conduct and content of the Fair Work Commission complaint as the basis for her argument that the AFP was required to pay her relocation costs. She draws no link between the exercise of her right to complain to the Fair Work Commission and the refusal of the relocation costs. 473 I am persuaded by Mr Turner's evidence that there was no such link. His affidavit evidence was: (a) The transfer the Applicant was undertaking was in my assessment not dissimilar to 'a compassionate move' as it was a move that was not as a result of a direction by the Respondent for an operational need or because the Applicant was successful in applying for a particular role but a move the Applicant was seeking due to her own personal preferences and reasons. (b) Under the Respondent's National Guideline on compassionate posting, at part 13, it states that "Employees must be aware that should a request for an assignment for personal reasons (including a compassionate assignment) be approved, all financial costs associated with the move are the employee's responsibility" the Respondent would not fund any costs associated with the move. If the AFP had required the Applicant to move, it would have covered her full costs; … (c) I consulted with the National Manager of People Strategies and Security and the Policy prior to making my decision; (d) I did not deny the Applicant's seeking of relocation costs to be paid because of her relationship status or any complaint she made; (e) I did inform the Applicant that if she was unhappy with my decision, she could follow the dispute resolution process. (Original emphasis.) 474 In evidence-in-chief he said: All right. I want to come back to relocation costs. You started talking about that earlier. You talk about it in your affidavit and we now that there were some attempts made by the applicant to be reimbursed the costs associated with her move from Canberra to Melbourne in May of 2015, and we've heard some evidence about your decision to refuse those attempts. Why did you not, on behalf of the AFP, reimburse the applicant for the costs associated with her move from Canberra to Melbourne?--- There was no organisational requirement to move Detective Sergeant Richens to Melbourne. It was, effectively, a swap organised by her with the imprimatur, I suppose, of the organisation, but it was organised by her, and there was no Commonwealth requirement. It was not an order of merit. There was no merit process run, so, effectively it was a personal decision of hers to go to Melbourne. I formed the view that the Commonwealth shouldn't be exposed to those costs, which can be significant. I discussed it with my supervisor at the time, and we both agreed that it would be inappropriate to - to afford costs for that move. Well, other than that there was no operational reason as you have just explained, were there any other reasons why you did not, on behalf of the AFP, reimburse the applicant for the costs associated with her move from Canberra to Melbourne?--- Well, the only other reason is that it would be contrary to the enterprise agreement in place at the time, in that it, specifically - that the enterprise agreement in place at the time specifically addressed that situation, which would be contrary to that - to that - providing costs would be contrary to that clause in the enterprise agreement. I see. Any other reasons beyond those two?---No, there wasn't. No. 475 I also accept Mr Turner's evidence about the situation with the alleged comparator officers. He deposed: In response to paragraph 260 of the Applicant's affidavit, I state: (a) Relocation costs were not met for Sergeant Coleman. Her partner was also with the Respondent and had applied for a vacancy within the Respondent in Canberra and been successful. As a result, Sergeant Coleman's partner's relocation costs were paid by the respondent. … (b) I do not know Federal Agent Darren Jackson. I have since come to know Sergeant Lisa Coleman as I worked with her partner however, deny treating the Applicant differently to them. 476 Mr Turner was not cross-examined substantively about the comparator officers. This was the extent of it: Do you agree, Mr Turner, that relocation costs were met for Sergeant Coleman?---No, I don't. 477 I find that, by refusing to pay DS Richens' relocation costs, DS Richens has not proven that the AFP treated her differently from any officer in relevantly the same situation as her. There is unchallenged evidence that the AFP did not pay Sergeant Coleman's relocation expenses. There is no direct evidence about the circumstances of Constable Jackson; simply an assertion by the applicant in her complaint in May 2016. There is no evidence at all about the other people named in her closing written submissions. The applicant sought to include evidence of "relocation entitlements" for certain of the comparator officers in the revised version of the Court Book, but these were documents which had been coded red at the conclusion of the trial, and for the reasons set out above I have not taken that evidence into account. Accordingly, there is no sufficient evidentiary basis to find DS Richens was treated differently from other officers, within the terms of item 1(d) of s 342(1). 478 Even if, contrary to my opinion, the decision about not paying DS Richens' relocation expenses could constitute adverse action, I find it was not for the prohibited reason that she had made a complaint to the Fair Work Commission. It was because Mr Turner did not believe she was entitled to be paid those expenses. I tend to consider on the evidence he was correct in that judgement, but it does not matter whether he was or was not. What matters is that I find the AFP has proved this was his true reason. 479 The sixth claim must fail.

[69]

The applicant's claims for compensation 480 I have not upheld any of the applicant's six claims of contravention of the FW Act. Accordingly, on my primary findings, no compensation is payable to the applicant. 481 In the alternative, if, contrary to my findings, the AFP has contravened the FW Act in one or more of the ways alleged by the applicant in her six claims, then I make the following findings on the question of compensation. 482 As a general finding, and subject only to any specific matters to the contrary to which I refer below, I accept the entirety of the AFP's submissions on the issue of compensation. 483 As the AFP's closing written submissions point out, there is a raft of difficulties attending the applicant's compensation claims. I begin with the most obvious ones. 484 Some of the applicant's submissions are entirely speculative, such as the economic loss claim for "loss of higher income" because of what was assumed to be DS Richens' career progression if there had been no adverse action. There is no attempt to track the progress of a comparator officer, and to make good the proposition that DS Richens' career would have followed a similar trajectory. No allowance is made for the possibility of succeeding on one allegation of adverse action and not the others, and therefore what impact that might have on the speculative exercise of where DS Richens' career might be at today, but for the alleged adverse action. 485 The applicant has also sought in support of some of the compensation claims in her closing written submissions to rely on documents which the parties had agreed would not be tendered. For the reasons set out above, I find the applicant, having committed to a position, which is reflected in the red and green highlighting on the agreed Court Book submitted by the parties at the conclusion of the trial, should not be permitted to resile from this position. The AFP conducted the latter part of its case and made its final submissions on the basis that there was such an agreement. This affects in particular, as the AFP submits, proof by the applicant of her claims about "loss of higher income" and "relocation expenses". 486 The claims of loss for "dual living expenses" and "annual leave and personal leave" are all premised on an alternative scenario which would have had the applicant and SC McPherson co-locating. However, the applicant had the chance to do this in Brisbane, and chose not to. She may have had her reasons for refusing that transfer, but in my opinion, the fact she chose not to take that position means she cannot make out any causal link between the alleged adverse action and the fact that she was living in a different location to SC McPherson. In any event, none of the six specific claims appear to actually allege adverse action by the AFP in a decision or conduct which in fact prevented DS Richens and SC McPherson living in the same location, and that the AFP did so for a prohibited reason. Further, as the AFP submits, in fact (and aside from a day here or there) the applicant took her annual, long service and personal leave as she asked for it. Annual leave is an entitlement to be absent from work without loss of pay. The applicant had the benefit of this entitlement, and there is no economic loss which has accrued to her. 487 The claim for "relocation expenses" is exaggerated and opportunistic, and the fact that it is made does not reflect well on the applicant. How any of the six claims of adverse action could possibly lead to the AFP being responsible to pay for the title searches done in respect of the purchase by the applicant of a property in Melbourne is impossible to understand. The same is true of claims for "loan fees", a "loan dispersal fee" and conveyancing costs. No justification for these claims is provided in the applicant's closing written submissions; the loss is simply asserted. In her initial claim for relocation costs on 11 May 2015, the applicant asked for the sum of $6,329.39. How that has now become a claim for more than $75,000.00 can only be explained by gross exaggeration. 488 One aspect of the "relocation expenses" claim is reasonably clear. If I am wrong on the relocation costs part of the sixth claim, then DS Richens is entitled to the sum she asked for in 2015: namely, $6,329.39. That is the only economic loss claim I would have allowed. 489 As to non-economic loss, the sum of $100,000.00 is claimed. That appears to be a figure plucked out of the air. No justification by way of submissions based on other compensation awards is made. There was some direct evidence from DS Richens about how the alleged adverse action affected her (some of that evidence which I have extracted above). She also sought to rely on some medical evidence, but the AFP has objected to the admissibility of that evidence, and submits that even if the applicant was permitted to rely on that evidence, it would "not come close to establishing the type of detriment that the applicant would need to show in order to justify such a high award". The AFP's objections had force, and would certainly have led me to place very little weight on the opinions of any treating practitioners who were not even called to give evidence, let alone provide expert reports under Pt 23 of the Federal Court Rules 2011 (Cth). 490 That said, if I had found some or all of the claims of adverse action proven, I would have been inclined to award DS Richens some figure for non-economic loss. That is because it is clear on the evidence that she has been much affected by what has happened to her since 2013. Several of the AFP's key witnesses gave evidence about their observation of her distress. In my opinion it is not, however, possible to disentangle the reasons for why she has been so affected. For example, a considerable amount of her distress is likely to have been caused by the fact of her separation from SC McPherson, although their physical separation was not in fact one of the six claims made. 491 Some damage was clearly caused by the attitude of Commander Hurst, and in particular the change in her attitude towards the applicant. I have made some findings that she was angry and frustrated with DS Richens, and showed it. I have no doubt on occasion she was abrasive. If the first claim had succeeded, it is likely I would have awarded the applicant some compensation for hurt and injury. At this point, because of my initial findings and because of the unhelpful way in which the applicant's evidentiary case on non-economic loss was presented, with no treating practitioner witnesses called and no expert evidence adduced, I find myself unable to put a figure on what that compensation might have been. I would be doing no more than speculating on what I consider to be a highly unsatisfactory evidentiary base. Further hearing and argument would have been required. I would have taken the same approach if I had been satisfied there should be compensation for non-economic loss on any of the other five claims, if they had succeeded. I can be no more precise than that.