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[2017] QCA 100
General information, not legal advice.
Court of Appeal (Qld)
2017-05-23
Holmes CJ and McMurdo JA and Bond J, Separate reasons, for judgment of each member of the Court, each concurring as the orders, made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Woodforth v State of Queensland [2017] QCA 100
PARTIES: VERONICA WOODFORTH (applicant) v STATE OF QUEENSLAND (respondent)
FILE NO/S: Appeal No 1323 of 2016 / QCAT No 8 of 2015
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2016] QCATA 7
DELIVERED ON: 23 May 2017
DELIVERED AT: Brisbane
HEARING DATE: 8 February 2017
JUDGES: Holmes CJ and McMurdo JA and Bond J / Separate reasons for judgment of each member of the Court, each concurring as the orders made
ORDERS: Grant leave to appeal.Allow the appeal.Set aside the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dated 11 January 2016.Remit the matter to the Appeal Tribunal for rehearing.The respondent to pay the applicant’s costs of the appeal to this Court.
CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION – where the applicant, who had a severe hearing impairment, reported an assault allegedly committed by her housemates to police – where the applicant alleged that the police were unduly slow in responding to her complaint and failed to take necessary steps to organise AUSLAN interpreters – where the applicant alleged that the police discriminated against her because of her hearing impairment, in contravention of the Anti-Discrimination Act 1991 (Qld) – where the applicant instituted proceedings in QCAT seeking orders including a public apology, training programs for the police and compensation – where s 10 of the Anti-Discrimination Act 1991 (Qld) requires a comparison between the treatment of a person with a protected attribute and a person without that attribute “in circumstances that are the same or not materially different” – where s 8 of the Anti-Discrimination Act 1991 (Qld) extends the definition of discrimination to include discrimination on the basis of a “characteristic” that is often imputed to a person with a protected attribute – where the tribunal member made the comparison required by s 10 by comparing the treatment of a person with a hearing impairment and communication difficulties against the treatment of a person without a hearing impairment but with communication difficulties – whether the appropriate comparison was between the treatment received by a person with a hearing impairment and communication difficulties and that of a person without a hearing impairment and without communication difficulties – whether difficulty in communication is a “characteristic” of a person with a hearing impairment within the meaning of s 8 or a “circumstance” in which the comparison is to be made under s 10 / Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 11, s 101 / Lyons v The State of Queensland (2016) 90 ALJR 1107; [2016] HCA 38, cited / Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62, distinguished / Woodforth v State of Queensland [2014] QCAT 680, related / Woodforth v State of Queensland [2016] QCATA 7, related
COUNSEL: K Eastman SC, with P Morreau, for the applicant / S Anderson for the respondent
SOLICITORS: Caxton Legal Centre for the applicant / Queensland Police Service for the respondent
HOLMES CJ: I agree with the reasons of McMurdo JA and with the orders he proposes.
McMURDO JA: The applicant is a person who has a severe hearing impairment. She wears a hearing aid in each ear but receives only a little assistance from them. She has a limited capacity to communicate orally, having a minimal lip reading ability and speaking skills. The language which she uses is Auslan (Australian Sign Language). She finds communicating in English to be stressful, confusing and of limited effectiveness.
In December 2011, the applicant says that she was twice assaulted in the house which she then shared with others in Booval. At the same time, she says, some of her personal property was stolen by other residents. She complained to the police and over a period of about a week from 13 December 2011, there were occasions in which she met police officers about her complaints.
The present proceeding results from what she says was the discriminatory conduct of the police in responding to her complaints over that period. She alleges that the police discriminated against her because of her hearing impairment, in contravention of the Anti*‑*Discrimination Act 1991 (Qld) (“the ADA”). In April 2012, she lodged a complaint of discrimination with the Anti‑Discrimination Commission. In November 2013, the matter was referred by her to the Queensland Civil and Administrative Tribunal (QCAT).1 She sought orders that the respondent, the State of Queensland, issue a public apology to her, implement programs to ensure that the Queensland Police Service did not act in a discriminatory manner and pay compensation for what she said had been an injury to her feelings, humiliation and distress in consequence of the discriminatory conduct. After a three day hearing, a Member of QCAT dismissed her complaint and she unsuccessfully appealed to the Appeal Tribunal of QCAT.2
The applicant seeks leave to appeal against the decision of the QCAT Appeal Tribunal. An appeal lies to this Court from such a decision only on a question of law and with this Court’s leave.3 Her proposed appeal is limited to questions of law which involve the proper construction of provisions of the ADA. This Court has heard full argument on the merits of that appeal. For the reasons that follow, I conclude that the QCAT member and the Appeal Tribunal misconstrued the ADA and that leave to appeal should be granted, the appeal allowed and the case remitted to the Appeal Tribunal for determination according to law.
Relevant facts
Some of the relevant facts were found by the Tribunal member. Other facts were not the subject of findings apparently because of the Member’s understanding of what was relevant according to her construction of the ADA. In turn the Appeal Tribunal did no more than agree with such findings as the Tribunal member did make. Therefore the following are either the facts as found or the facts according to the applicant’s evidence.
On the afternoon of 13 December 2011, the applicant and another resident, whom I will call C, argued with some of the other residents. The argument was about allegations that C had been defrauding one of those residents. A physical fight ensued and police were called. The applicant’s evidence was that C was assaulted by some of the others and that when the applicant tried to intervene one of the group pushed, punched and choked her and pulled her hair. One of the assailants was a woman whom I will call Mrs B. Her husband, Mr B, was the only resident of the house who did not have a hearing impairment. Mr and Mrs B were the owners and the other residents paid them rent.
Four police officers arrived at the scene. Until then the police had been unaware that anyone in the house had a hearing impairment. Two of the officers attempted to speak to the applicant. Some communication was possible with the use of a police notebook. The police were assisted by Mr B who, of course, was married to one of the applicant’s alleged assailants. The applicant’s evidence was that she was able to use her own voice to ask the police whether she could have an interpreter and was told that it was too late in the night to call one. She said that the police officers at the scene were for the most part communicating with Mr B. Her evidence was that she had great difficulty communicating with the officers at the scene and did not understand what they were saying or indeed what was happening.
After about an hour an ambulance arrived and the applicant and C were taken to hospital. The applicant’s brother came to the hospital and, when she was discharged about 10 hours later, took her to his house.
On the following day, 14 December, the applicant wanted to return to the house to collect her possessions. She went to the Ipswich Police Station to seek assistance to do so. She went there with C. At the station, the applicant says that she tried to make a complaint that others in the house had prevented her from going back to the house to retrieve her belongings. She says that she spoke to a receptionist at the station who gave her a card with a phone number written on it. Her evidence was that she asked the receptionist to call this number using a telecommunications service called the NRS, which would have permitted the applicant, using Auslan, to communicate with the person answering the call. The receptionist said that she could not do that because it was not part of her job.
The applicant then returned to her brother’s house where her sister‑in‑law telephoned the number on the card. In response to that call, later in the day two police officers accompanied the applicant back to the house. But they were unable to communicate effectively with the applicant or Mrs B who, according to the applicant’s evidence, punched her (again) in the course of this visit to the house when the applicant was carrying a box of her belongings. Mrs B had to be restrained by the police officers and the incident cut short the amount of time which the applicant needed to collect all of her things, some of which, she said, had to be left on the lawn outside the house.
At the same time, C was unable to collect all of C’s possessions, including her passport. The police officers then at the house were told by Mr B that the passport had been already handed to other officers.
Later that day the applicant returned to the Ipswich Police Station, again with C who was inquiring about her passport. The applicant’s evidence was that she asked for an interpreter but one was not provided. She says that she was told, in effect, that the Criminal Investigation Branch (CIB) was handling her complaint and she would have to wait for its investigators to arrange an interpreter. The applicant says that she then raised the further alleged assault upon her earlier that day and was told that there would first have to be a report on the incident by the police officers who were present. Her evidence was that throughout this exchange she found it very difficult to communicate with police.
On 15 December 2011, the applicant went to the house next door to that where she had lived in order to collect more of her possessions. A neighbour told her that she had seen women walking around in what had been her bedroom on the previous night. The neighbour also said that she had seen another of the residents taking away carloads of the applicant’s belongings. Consequently the applicant returned to the Ipswich Police Station. She was told by the receptionist that she should wait until she had collected all of her belongings which were still there so that she could then report what was missing.
Later that day, the applicant was again at the station to assist in the recovery of C’s missing passport. Her evidence was that again she found communication very difficult and her request for an interpreter received the same response, namely that one would be arranged by the CIB.
On 17 December 2011, the applicant returned to the house in order to collect the rest of her things. She was accompanied by her brothers. They had arranged for police to be present. She waited outside whilst her brother collected some items. Later that day, she returned to the station to report what was missing. She says that she was told that the CIB would contact her.
On 20 December 2011, the applicant asked Deaf Services Queensland to assist her in making her complaints to the police about the assaults and missing items. Mr Green from that service, together with an Auslan interpreter, accompanied the applicant to the police station. They had a discussion with a police officer which took only about 15 minutes because the interpreter was not available for a longer period.
On 23 December 2011, the applicant went again to the station to report the theft of her missing belongings. She said that she was told that an interpreter could not then be arranged because of the Christmas holiday period. Notwithstanding that response she returned again on 26 December 2011 but again, no interpreter was provided.
On 28 December 2011, Detective Senior Constable Rosee was appointed to investigate several complaints, not limited to those made by the applicant, about what had happened at the Booval house. One of the allegations to police was that C had defrauded another resident by using that woman’s computer. Another alleged that both C and the applicant had coerced this woman into transferring monies into accounts operated by them. These were recorded on a police file on a computer system called QPRIME.4 By then the file recorded one complaint of assault occasioning bodily harm, three complaints of common assault and one complaint of fraud. The person who complained of assault occasioning bodily harm was also the complainant of the fraud. The complainants of the three common assaults were Mrs B, C and the applicant.
On 17 January 2012, with the assistance of the Ipswich Regional Advocacy Service the applicant met with Detective Rosee and another officer. The meeting had the assistance of an Auslan interpreter organised by the Advocacy Service. The applicant’s evidence was that this was the first time that she had been able to explain to police officers what had happened to her and to make a complaint about the original assault and the theft of her belongings. She also made a complaint about the unavailability of an interpreter on previous occasions. On 28 March 2012, with the assistance of an Auslan interpreter, the applicant was formally interviewed by Detective Rosee.
In April 2012 the applicant lodged her complaint of discrimination with the Anti-Discrimination Commission. The police investigations continued and indeed the fraud investigation was still ongoing at the time of the hearing before the QCAT member in October 2014. However the applicant’s claim of discrimination, at least as it was argued before the Appeal Tribunal, was confined to the conduct of police in a period of only about a week from 13 December 2011.5
The proceeding in QCAT
The QCAT member conducted a hearing over three days. By then, the applicant’s case was set out in a document entitled “Complainant’s Amended Contentions”. In that document, the applicant’s “impairment” for the purposes of the ADA was described as follows:
“a. she is deaf, having been born with a severe to profound hearing impairment;
b. she cannot hear, despite wearing a hearing aid in each ear; and
c. she is unable to communicate by conventional speech.”
Under a heading “Direct Discrimination”, it was contended that the respondent had failed to investigate her complaints in relation to the assaults and theft in a timely manner, by failing to take details of her complaints and to preserve evidence in a timely manner. She alleged that these failures constituted treatment which was less favourable than that which would have been provided to a person who had been an alleged victim of similar crimes but who did not have her impairment. Under the heading “Indirect Discrimination”, it was contended that the respondent had imposed a term that it would only investigate her complaints in a timely manner if she “was able to communicate the details of the complaint to the police in English by conventional speech”, which she was unable to do because of her impairment. She alleged that such a requirement was a term which was unreasonable.
The ADA
Section 6(1) of the ADA provides that one of its purposes is to promote equality of opportunity for everyone, by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. Section 6(2) provides that this purpose is to be achieved by prohibiting discrimination and by allowing a complaint to be made against a person who has unlawfully discriminated.
Chapter 2, Part 2 defines the prohibited grounds of discrimination. Part 3 describes the prohibited types of discrimination, namely direct and indirect discrimination. Part 4 describes the areas of activity in which discrimination is prohibited, for which, s 101 relevantly provides:
“101 Discrimination in administration of State laws and programs area
A person who—
performs any function or exercises any power under State law or for the purposes of a State Government program; or
has any other responsibility for the administration of State law or the conduct of a State Government program;
must not discriminate in—
the performance of the function; or
the exercise of the power; or
the carrying out of the responsibility.”
The applicant’s argument suggests that this case is also within the area of activity described in s 46, namely the provision of services (by the Queensland Police Service) to the applicant as a person complaining of an offence. It is unnecessary to consider that submission. At no stage has the respondent suggested that the circumstance of the applicant being a complainant to police was outside the scope of the Act. The case is within at least s 101.
The prohibited grounds of discrimination are defined by s 7 and s 8 of the Act as follows:
“7 Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
sex;
relationship status;
pregnancy;
parental status;
breastfeeding;
age;
race;
impairment;
religious belief or religious activity;
political belief or activity;
trade union activity;
lawful sexual activity;
gender identity;
sexuality;
family responsibilities;
association with, or relation to, a person identified on the basis of any of the above attributes.
8 Meaning of discrimination on the basis of an attribute
Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—
a characteristic that a person with any of the attributes generally has; or
a characteristic that is often imputed to a person with any of the attributes; or
an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c)—
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.”
The “attribute” which is relevant in the applicant’s case is that in s 7(h), namely “impairment”. That term is defined6 to mean:
“(a) the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
the malfunction … of a part of the person’s body …”.
The Tribunal member accepted that the applicant had a “hearing impairment”, as “impairment” was used in s 7(h). But she made no reference to s 8 of the Act and therefore made no finding relevant to its operation.
As already noted, the applicant’s case was that she was impaired not only in her hearing but also in her ability to speak. She alleged that she was “unable to communicate by conventional speech” and could communicate fluently only in Auslan. The QCAT member accepted this. However, there was no finding by the QCAT member that this inability to communicate by conventional speech was a characteristic of her impairment so that, by the operation of s 8, it was relevant. In this Court, counsel for the respondent suggested that some of the evidence would have precluded such a finding. But that was evidence about the training of police officers in dealing with people with impaired hearing. The evidence did not go to the issue, if there could be an issue, of whether an impaired ability to communicate by conventional speech was a characteristic which persons with a hearing impairment generally have or which is often imputed to them. It may be noted that in Lyons v The State of Queensland,7 the joint judgment (French CJ, Bell, Keane and Nettle JJ) said of that claimant:
“The Anti*‑*Discrimination Act 1991” (Qld) (the ADA) prohibits discrimination on the basis of any of the attributes that are specified in s 7. One such attribute is ‘impairment’. ‘Impairment’ includes the total or partial loss of a person’s bodily functions. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with the attribute generally possesses or a characteristic that is often imputed to a person with the attribute. The appellant’s deafness is an impairment and communication by means of Auslan is a characteristic that persons who are deaf generally possess.”
(footnotes omitted)
Section 10 defines what is meant by “direct discrimination”. It relevantly provides as follows:
“10 Meaning of direct discrimination
Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
It is not necessary that the person who discriminates considers the treatment is less favourable.
The person’s motive for discriminating is irrelevant.
If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.”
(examples omitted).
Section 10 requires a comparison between a person with an attribute and a person without that attribute. The comparison is to be made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context “the comparator”, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated. In the present case, those circumstances included the context of a complaint by a person to police of criminal offending against her.
The meaning of indirect discrimination is defined by s 11 as follows:
“11 Meaning of indirect discrimination
Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
with which a person with an attribute does not or is not able to comply; and
with which a higher proportion of people without the attribute comply or are able to comply; and
that is not reasonable.
Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
the consequences of failure to comply with the term; and
the cost of alternative terms; and
the financial circumstances of the person who imposes, or proposes to impose, the term.
It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
…”
As already noted, the applicant’s case in QCAT was that in her case there had been both direct and indirect discrimination.
The decision of the QCAT member
After discussing the interactions between the applicant and police and setting out the arguments, the Tribunal member described the first issue as whether the applicant had been treated less favourably than a person without her impairment would be treated, in the same or similar circumstances. After making further references to the facts, the Tribunal member wrote:
“[63] Notwithstanding that Ms Woodforth wanted the incidents that involved her directly dealt with instantly, she was caught up in a larger investigation involving multiple parties. The Tribunal has been provided with no evidence that the referral of the combined incidents to CIB was less favourable treatment or that hearing persons in the same or similar circumstances would have been treated more favourably to Ms Woodforth.
[64] It is undisputed Ms Woodforth was advised, on a least three occasions, that the matter was being referred to the CIB and that an interpreter would be organised for a formal statement, and that it may take some time to organise.
[65] On the evening of the original incident, the Tribunal accepts that the Police were unaware persons with hearing impairments were involved when they attended the scene. The description of the incident by Ms Woodforth and Police indicate that it was not unfortunately a particularly unusual incident, nor did it involve any serious injury to persons. Tribunal is satisfied the use of notebooks, and speaking with [Mr B], to communicate was appropriate in the circumstances. There was no evidence presented that the Police would not utilise other means of communication when dealing with others, who were not hearing impaired, but had communication difficulties, in the same or similar circumstances.”
(my emphasis).
I have emphasised those words because, as I will discuss, they reveal a critical error in the member’s reasoning. The comparison which she made was between a person with a hearing impairment and communication difficulties and another who had communication difficulties but no hearing impairment. There was no consideration of whether those communication difficulties, or more precisely, as the applicant put her case, her inability to communicate by conventional speech, was a characteristic of her impairment within s 8.
That reasoning may well have affected the member’s factual findings that the applicant was treated no less favourably than a person without a hearing impairment. One of those findings was expressed as follows:8
“Ms Woodforth attended the Police Station on a number of occasions. On her own account, on some occasions she even assisted her friend [C]. Although the Tribunal accepts Ms Woodforth made requests for an interpreter on multiple occasions, Ms Woodforth arrived unannounced and without appointment to the Police Station and had somewhat unrealistic expectations of immediate action in these circumstances. There was no evidence that a person without a hearing impairment would have received more favourable treatment than Ms Woodforth, as Ms Woodforth was dealt with by Police, they communicated with her using other means such as notes and providing phone contacts for Police Communications.”
Another of those findings was expressed as follows:9
“Although the Tribunal accepts Ms Woodforth was anxious to retrieve her belongings and was distressed by the incidents, the Tribunal is not satisfied that Ms Woodforth was treated less favourably than a person without hearing impairment in the same or similar circumstances. There is no ‘right’ to an interpreter at call under the Police policy rather, there is an expectation and practice that the organisation of [an] interpreter would be a collaborative approach as described by Andrew Green. There was no evidence provided that if a person without a hearing impairment attended the Police Station on multiple occasions within a short period of time, seeking to have a formal statement taken at their requested timing, after they had been previously informed that the matter was referred to CIB because of its complexities and to expect some delay, that they would be accommodated right there and then. It is general knowledge that Police investigations involve more than just statement‑taking, they require planning, strategizing and coordination. Practically they require availability of relevant personnel and equipment to undertake the job.”
These findings, if read alone, could be thought to preclude a case of direct discrimination upon a correct definition of the comparator. But reading them in the context of the member’s reasons, it is possible that they were affected by the member’s misdescription of the comparator. The Tribunal member then turned to the question of indirect discrimination. She found that the applicant had not established that the police had imposed a term that they would only investigate her complaint in a timely manner if she was able to communicate its details in English by conventional speech. The Tribunal member found it unnecessary to consider whether such a term, had it been imposed, would have been reasonable.
The applicant’s complaint was thereby dismissed.
The decision of the Appeal Tribunal
In the Appeal Tribunal, the applicant required leave to appeal against the member’s decision because some of the applicant’s grounds of appeal there involved errors of fact or errors of mixed fact and law.10
Her written argument in the Appeal Tribunal focused on her exchanges with police from 13 December 2011 to 12 January 2012. The essence of her argument was that it was within this period that there had been discrimination, rather than an argument that her complaints had never been investigated. It was submitted that there had been “a failure on the part of the first response officers in attendance on 13 December to meet their usual obligations to document witness accounts and forensic evidence in a timely manner” and that there was “thereafter … the continual deferment of any effective communications with the applicant about the events of 13 December and her related complaints (which could only have occurred through utilising the services of an Auslan interpreter)”.11 It was submitted that had the applicant not had a hearing impairment, “the primary response officers would have, consistently with the applicable OPMs,12 attempted to take an account directly from [her], in [her] own language, separate from any other potential witness at the scene or shortly thereafter. The [applicant’s] injuries would have been professionally documented. Later, and again, consistent with the applicable OPMs, police in attendance at the Ipswich Police Station would have attempted to record what it was that the [applicant] was trying to say …”.
The applicant submitted that “the decision to refer the matter to the CIB did not obviate the need for the QPS to ensure that what the applicant was trying to say (about the events of 13 December and … subsequent criminal acts) was able to be reported to the police, understood and if necessary, acted upon” and that “[d]eferring responsibility for these basic communications with the applicant – whether it be in her position as a victim or an accused – to the CIB, to undertake whenever it came to take the next investigation steps in accordance with that unit’s priorities, denied the applicant access to QPS services and was degrading of her.”13
The applicant further submitted that the member had used the wrong comparator and that the appropriate comparator was someone who was not hearing impaired and had no relevant communication difficulty. The Appeal Tribunal rejected that argument because, in its view, it was inconsistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training).14 It is the correctness of that view which is determinative of the outcome in this Court.
Upon the basis of that conclusion as to the relevant comparator, the Appeal Tribunal found that there was no error by the QCAT member in her statement (as set out above) that:
“There was no evidence presented that the Police would not utilise other means of communication when dealing with others who were not hearing impaired but had communication difficulties in the same or similar circumstances.”15
The Appeal Tribunal continued:
“[61] The learned member was satisfied that Ms Woodforth was provided with adequate services by the QPS, and that there was no, or insufficient, evidence that a person without Ms Woodforth’s disability would have been treated differently or more favourably in the same or similar circumstances. We are of the view that it was open on the evidence for the learned member to make such a finding.
[62] The learned member’s reasons clearly set out the circumstances in which Ms Woodforth found herself on 13, 14 and 15 December 2011. We do not consider that there was any evidence, or sufficient evidence, to support a finding that Ms Woodforth was treated less favourably than another person who had communication difficulties would have been treated in the same or similar circumstances on those dates. We find no error by the learned member.
[63] There was, as the member found at [63], no evidence upon which she could have been satisfied that, had Ms Woodforth not been hearing impaired but had communication difficulties, she would have received a different response from the police when she attended at the Ipswich Police Station on 14 and 15 December 2011.
[64] There was no evidence before the learned member that such a person would have been told, for example, all of the details as to why the person’s complaint had been referred to the CIB or any other details or timeframes as to how the investigation would progress. Nor was there any evidence before the learned member that such a person would have been given an opportunity to provide further details of their version of events when they attended at a police station without an appointment and in circumstances where their complaint was being investigated by the CIB.
[65] We are satisfied that the findings of the learned member were supported by the evidence. We find no error by the learned member.”
(emphasis added; footnotes omitted).
As to the complaint of indirect discrimination, the Appeal Tribunal discussed whether the investigation had been conducted in a timely manner, although not with a focus on the period which was the subject of the applicant’s complaint. Rather the Appeal Tribunal relied upon the evidence of Detective Rosee that the investigation under her supervision had not taken especially long. The Tribunal’s reasoning was that given the complexity of the case and having regard to that evidence, the investigation had not been conducted in a way from which it could be inferred that the police had imposed a term that it would investigate the matter only if the applicant could communicate the details of her complaint to police in English in conventional speech. That reasoning misunderstood the applicant’s case, which was that there had been discrimination, direct or indirect, within the period immediately after the incidents of 13 December. It was in the period of no more than a week from then, prior to Detective Rosee’s involvement, that it was said there had been a failure to preserve evidence and to deal with the applicant’s complaint in a timely manner.
In order to discuss the Appeal Tribunal’s reasoning as to what constituted the relevant comparator, it is necessary to go first to the decision of the High Court in Purvis.
That case came from a claim of unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (the DDA), which proscribed direct and indirect discrimination. The claim was limited to direct discrimination which was the subject of s 5 of the DDA which, at the relevant time, was defined in these terms:
“(1) For the purposes of this Act, a person (‘discriminator’) discriminates against another person (‘aggrieved person’) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability…”
The claim in that case was that there had been unlawful discrimination by the suspension and subsequent exclusion from a State high school of a pupil who had assaulted other pupils and teachers on several occasions. This violent behaviour was a consequence of brain damage which the student had suffered in infancy. It was argued that the appropriate comparator was a student without this student’s brain damage and without his disturbed behaviour. The trial judge and the Full Court of the Federal Court had held that it was necessary to distinguish between the student’s disability and the conduct or behaviour which resulted from it.
The DDA defined “disability” to include:
“(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour …”.
The appellant’s argument was that the disability there was to be identified as the combination of the disorder from which this student suffered and his disturbed behaviour that resulted from it. This argument raised what was described, in the joint majority judgment of Gummow, Hayne and Heydon JJ, as the “disability” question. A further issue, which their Honours called the “comparator” question, was whether it was necessary to compare the treatment accorded to this student with the treatment that would have been accorded by the State to a student who was not disabled and who had acted as this pupil had acted.16 Their Honours identified a third issue, which they called the “causation” question, of what constituted the necessary relationship between the disability and the conduct about which the complaint of discrimination was made.17
It was the second of those issues, the comparator question, which in their Honours’ view was determinative.18
On the “disability” question, Gummow, Hayne and Heydon JJ disagreed with the view in the Federal Court that there was a “sharp distinction” between cause and effect in the definition of “disability”.19 Their Honours said:20
“[T]o focus on the cause of behaviour, to the exclusion of the resulting behaviour, would confine the operation of the Act by excluding from consideration that attribute of the disabled person (here, disturbed behaviour) which makes that person ‘different’ in the eyes of others. Such a construction of the Act should be adopted only if its language requires it. Construction must proceed not only from a consideration of the grammatical structure of para (g) of the definition of disability, but also from a consideration of how the definition of disability is engaged in the other, operative, provisions of the Act.”
That reasoning is relevant to the present case, although the ADA is in different terms. Under the ADA, the equivalent term of “disability” is “impairment” and that term is defined differently: here it is relevantly defined as some loss of bodily function or the malfunction of a part of the person’s body. And the DDA contains no equivalent of s 8 of the ADA, by which the meaning of discrimination on the basis of an impairment is defined to include discrimination on the basis of a characteristic of that impairment. Nevertheless their Honours’ reasoning in that respect is relevant because of its explanation of the need to construe such a statute from a consideration of the operation of the statute as a whole, and to avoid, if possible, a construction of a term (“disability” in that case and “impairment” in the present case) which would exclude “from consideration that attribute … which makes that person ‘different’ in the eyes of others.”21
On the “comparator” issue, the appellant’s argument was that the appropriate comparison was between a person with this student’s disability (constituted both by his mental disorder and his resultant behaviour) and a person without that disability; that is to say, without both the mental disorder and the disturbed behaviour. The appellant argued that it was necessary to exclude from the identification of the relevant “circumstances” anything which was part of the disability in question. Therefore, in the comparison with the hypothetical treatment of a person without the disability, the factual context of the comparison could not include the history of violence by this student. It was in rejecting that argument that Gummow, Hayne and Heydon JJ reasoned in terms which the Appeal Tribunal considered to be decisive in the present case.22
In their Honours’ view, the comparison had to be made upon the factual premise of the behaviour which had occurred, that behaviour constituting part of the “circumstances” in which the student had been treated. Their Honours said:23
“In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers formed part of the circumstances in which it was said that he was treated less favourably than other pupils.”
Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.
Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant’s impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student’s behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant “treatment” was the response of police to a complaint of criminal conduct.
It should be added that the Tribunal member, whilst not referring to either s 8 or Purvis, appears to have reasoned in the same erroneous way.
In the other majority judgment in Purvis, which was given by Gleeson CJ, again the identification of the relevant circumstances was critical. Gleeson CJ said:24
“The circumstance that gave rise to the first respondent’s treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. … The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. …
If the appellant’s argument is correct, the comparison required by the Act is purely formal. If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same.”
The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator. The applicant’s case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. This error affected the Appeal Tribunal’s conclusions on relevant factual issues. In effect, the applicant’s case as to the findings of fact which should have been made by the QCAT member was not properly considered, because in each case the wrong legal test was applied. It may be the case that upon a proper analysis of those factual arguments, the outcome would be no different. But as that does not plainly appear, the case should be returned to the Appeal Tribunal, to be determined according to a proper construction of the ADA.
Orders
I would order as follows:
Grant leave to appeal.
Allow the appeal.
Set aside the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dated 11 January 2016.
Remit the matter to the Appeal Tribunal for rehearing.
The respondent to pay the applicant’s costs of the appeal to this Court.
BOND J: I agree with McMurdo JA.
ADA, s 164A. ↩
Woodforth v State of Queensland [2016] QCATA 7 (“Woodforth”). ↩
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150. ↩
Queensland Police Records and Information Management Exchange. ↩
The Appeal Tribunal regarded the period as 13-15 December 2011: Woodforth [2016] QCATA 7 at [49]. ↩
In the Schedule to the Act. ↩
(2016) 90 ALJR 1107, 1109 [2]. ↩
Woodforth v State of Queensland [2014] QCAT 680 [66]. ↩
Woodforth v State of Queensland [2014] QCAT 680 [73]. ↩
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). ↩
Submissions on behalf of the Applicant/Appellant to the Appeal Tribunal, paragraph 52. ↩
The Queensland Police Service Operational Procedures Manual. ↩
Woodforth
State of Queensland [2017] QCA 100
(2016) 90 ALJR 1107
(2003) 217 CLR 92
Submissions on behalf of the Applicant/Appellant to the Appeal Tribunal, paragraph 56. ↩
(2003) 217 CLR 92 (“Purvis”). ↩
Woodforth [2016] QCATA 7 at [58]-[59]. ↩
Purvis (2003) 217 CLR 92 at 152 [192]. ↩
Purvis (2003) 217 CLR 92 at 152 [193]. ↩
Purvis (2003) 217 CLR 92 at 152 [194]. ↩
Purvis (2003) 217 CLR 92 at 157 [209]. ↩
Purvis (2003) 217 CLR 92 at 157 [212]. ↩
Purvis (2003) 217 CLR 92 at 157 [212]. ↩
Woodforth [2016] QCATA 7 at [32] quoting from the joint majority judgment in Purvis (2003) 217 CLR 92 at 161 [224]. ↩
Purvis (2003) 217 CLR 92 at 161 [225]. ↩
Purvis (2003) 217 CLR 92 at 100-101 [11]-[12]. ↩