Hunter v Queensland[2015] QCAT 179

APPEARANCES:

REASONS FOR DECISION

1. [1]
   Mark Hunter sustained a spinal injury about 40 years ago resulting in tetraplegia.  This condition has meant that Mr Hunter has lived with partial paralysis below the neck. Since sustaining his injuries, he has had to use a wheelchair for mobility purposes.  
2. [2]
   He has lost additional fine motor movement in his left hand due to the growth of a cyst within his spinal cord at the level of his original injury.  The ageing process has had the effect of impacting adversely on his capacity to move around and to use his left hand and his arms.
3. [3]
   In August 2013 the police charged Mr Hunter with an offence.  He was told to attend the Southport Police Station for identification processing.  Mr Hunter went to the police station on 9 August 2013.  When the time came to take his fingerprints, Mr Hunter proceeded in his wheelchair to the front of a device for scanning fingerprints called a Live Scanner.
4. [4]
   This device was affixed to a cabinet and was not adjustable to suit the height of the person whose fingerprints were being scanned by the device.   In the usual course of using this device, a person stands in front of the device and applies downward pressure on the hand placed onto the scanning plate.  Mr Hunter had to raise his right arm in order to place his right hand on the plate of the device from a seated position in his wheelchair. 
5. [5]
   The device successfully scanned the fingers on Mr Hunter’s right hand.   When the time came to scan the fingers on Mr Hunter’s left hand, Mr Hunter informed the officer that his left hand was paralysed.  The officer told Mr Hunter to place his left hand on the scanning device.  Mr Hunter did this but he was unable to open his curled fingers due to his paralysis.
6. [6]
   The officer manually opened Mr Hunter’s left hand and attempted to roll each finger on the scanning plate to scan the fingerprints on each finger.  The device failed to record prints from the fingers. The fingers were not able to be scanned successfully after more than one attempt.  The operator recorded that prints could not be obtained as the left hand was bandaged.  That was not the case as Mr Hunter’s left hand was not bandaged but of the set outcome options available in the scanner, the operator decided that this was the most appropriate option for recording purposes. 
7. [7]
   The following week Mr Hunter telephoned the Police Prosecutor’s office to enquire about collecting a copy of the court brief called a QP9.  A person in the office told Mr Hunter that a copy of the QP9 was ready to be collected.  Mr Hunter asked where the prosecutor’s officer was located and he was told that it was near the Southport Police Station. 
8. [8]
   Mr Hunter attended at the police station and was told that he could collect the QP9 at the Prosecutor’s Office and he was given directions to the Office.  Mr Hunter followed those directions and came to a gate containing a sign indicating that it was the site of the Southport Watchhouse and Police Prosecutor’s Office. 
9. [9]
   Mr Hunter pushed an intercom button on the gate and explained he wanted to collect a QP9.  The gate was remotely unlocked and Mr Hunter moved through the gate in his wheelchair.  He wheeled along a ramp to reach a locked door.  Mr Hunter pressed a buzzer marked solely for the Prosecutor’s Office and the door was remotely unlocked without any conversation.
10. [10]
    After going through this door, Mr Hunter came into an area where there was a glass door marked as the Police Prosecutor’s Office.  Mr Hunter pressed a buzzer and the glass door was remotely unlocked.  Mr Hunter was at the foot of stairs leading up to the Prosecutor’s Office.  There was no lift to use for accessing the Office. 
11. [11]
    An employee in the Prosecutor’s Office came down the stairs and after ascertaining what he wanted, the employee gave Mr Hunter a copy of the QP9.
12. [12]
    Mr Hunter made a complaint that he had been subjected to unlawful discriminatory behaviour by the State of Queensland when agents of the State exercised power under State law.^[1]  He complains that the State discriminated against him on the basis of his impairment.^[2]  It is unlawful for a person to discriminate against another person on the basis of impairment.  Discrimination that is prohibited by law includes direct and indirect discrimination on the basis of impairment.^[3]  In his complaint, Mr Hunter asserts that the State had subjected him to indirect discrimination.
13. [13]
    Indirect discrimination on the basis of impairment happens if a person imposes, or proposes to impose, a term with which a person with an impairment is not able to comply and with which a higher proportion of people without an impairment are able to comply and the term is not reasonable.^[4]   It is not necessary that the person imposing the term is aware of the indirect discrimination.^[5]
14. [14]
    The State denied that there was any unlawful discrimination and asked the tribunal to dismiss the complaint.
15. [15]
    The basic factual elements of the complaint as set out in paragraphs one to eleven are not in dispute.  Some of the evidence of Mr Hunter that went into particularisation of the basic facts of his complaint was challenged by the State and that disputed evidence will be identified, where necessary, in these reasons.     
16. [16]
    In his complaint, Mr Hunter asserts that three incidences of unlawful conduct took place: requiring him to use a fixed cabinet based fingerprint scanning device when his access to the scanning device was impeded because of his use of a wheelchair; requiring him to undergo attempted scanning of the fingerprints on his left hand when to do so his fingers had to be manually opened onto the device by the operator; and requiring him to access the Police Prosecutor’s Office via stairs in order to collect the QP9.
17. [17]
    Dealing with the first incident relied on by Mr Hunter, he submitted that he was required by an employee of the respondent to have fingerprints from his right and left hands scanned by the device at the Southport Police station.  Persons who were not in a wheelchair stand in front of the device and place their hands, one at a time, on the scanning plate so that their prints are taken. Downward pressure on the hands is guided and if necessary augmented by the operator holding down the hand while a person’s hand is being scanned. Taking fingerprints by this method is a straightforward and quick process.
18. [18]
    Mr Hunter gave evidence that the procedure used for persons standing at the cabinet scanning device could not be adopted in his case.  He had to position himself sideways to the scanning plate and raise his right arm and then his left arm up to where the plate was situated in the cabinet device.  Mr Hunter gave evidence that the operator had difficulty taking his prints from a seated position and had to repeat the process due to this difficulty.
19. [19]
    Mr Hunter gave evidence that the act of lifting his hands up to the plate required considerable effort and required him to hold his arms in this position for an extended period of time in order for the repeated processes to be completed.  During cross-examination Mr Hunter could not quantify the time he held his right arm or his left arm extended upward towards the plate.  He stated that the process was physically stressful as a direct result of his impairment.  In Mr Hunter’s case, the process was not straightforward or quick. 
20. [20]
    The operator gave evidence that he could not recall Mr Hunter or the taking of his fingerprints.  The operator gave evidence that he was trained to discontinue taking prints if a person objected.  Mr Hunter told the tribunal that he had not objected to the process as he was unaware that he had any right to do so. 
21. [21]
    I accept the evidence of Mr Hunter that he was not told that the process would stop if he were to object to having his fingerprints taken by the operator using the scanning device.  I accept the evidence of Mr Hunter that he did not consider objecting to the process as he had never been in that situation before August 2013 and he thought he had to comply with the directions of the operator. 
22. [22]
    I accept the evidence of Mr Hunter that it took him considerable effort, due to partial paralysis in his arms and to his position in a wheelchair below the level of the scanning plate, to lift up each of his arms to the scanning plate and to retain his arms in that position while prints were being taken.  There was insufficient evidence produced to determine with accuracy the amount of time it took for Mr Hunter’s prints of his right hand and for his left hand to be taken.  However I am satisfied that the time in his case was in excess of the time it would normally take for a person standing at the cabinet to complete the scanning process of fingerprints because of the evidence that the operator had difficulty in carrying out the process with Mr Hunter due to his physical impairments and had to repeat his attempts at scanning Mr Hunter’s fingers more than once.
23. [23]
    In the second incident, Mr Hunter complains that the operator opened manually the fingers of his paralysed left hand to place them on the scanning plate.  He states that the operator made repeated attempts to take his left hand fingerprints, all of which proved to be unsuccessful.  Mr Hunter complains that the process of repeatedly manually handling his paralysed fingers in this way was unnecessary as prints had already been obtained from his right hand.    
24. [24]
    I accept the evidence of Mr Hunter that his left hand is markedly affected by paralysis and that his fingers are in a permanently curled position.  I accept his evidence as to the repeated attempts of the operator to scan fingerprints from Mr Hunter’s left hand, involving the operator manually opening the fingers on the left hand as Mr Hunter could not open his fingers himself on that hand due to an impairment.  Although Mr Hunter describes the actions of the operator as forcing open his fingers, I am satisfied that the force applied by the operator was minimal and not productive of physical discomfort in itself.  Mr Hunter did not display any indication of being physically discomforted by having his fingers opened at the time and did not make any contemporaneous complaint that the operator had caused him pain or discomfort from that particular action. 
25. [25]
    I am satisfied that the fingers on Mr Hunter’s left hand were not accessible for scanning due to paralysis.  The process was abandoned by the operator after unsuccessful attempts on his part.  If Mr Hunter’s fingers on his left hand had not been accessible to the operator due to bandaging, the operating instructions would have permitted the scanning process to be abandoned from the outset.  I am satisfied that the process used to scan the fingerprints on Mr Hunter’s left hand was not straightforward or quick.  
26. [26]
    In the third incident, Mr Hunter complains that he could not access the premises of the Police Prosecutor at Southport when collecting a QP9 for his use in court proceedings.  Mr Hunter gave evidence that the premises were located at the top of three flights of stairs in a part of a building that did not have a lift installed. Although Mr Hunter was challenged during cross-examination about the precise arrangement of the stairs, Samantha Ashurst, an administration officer employed by the Queensland Police Service at the Gold Coast Police Prosecution Corps called as a witness for the respondent, confirmed that there were three sets of stairs leading up from the ground floor to the Police Prosecutor’s Office at Southport. 
27. [27]
    Ms Ashurst stated that some 60% or 70% of QP9s were delivered by email and were not collected in person from the Prosecutor’s Office at Southport. Ms Ashurst confirmed that members of the public did attend at the Police Prosecutor’s Office to collect QP9s and that most of those attendees walked up the stairs to the counter where they were dealt with.  Ms Ashurst also confirmed that none of the various doors in the corridors leading from the street entrance to the Prosecutor’s Office contained signs stating that the premises were not open to the public.
28. [28]
    Photographs of the gate at the street entrance, of the solid door at the end of the ramp and of the glass door signed “Police Prosecutor’s Office” were exhibited. The photographs confirm the absence of any written signs stating that there was no public access to the premises but the photographs do reveal obvious security measures to control entry to persons entering the premises.^[6]  These photographs were not taken on the day when Mr Hunter attended to collect the QP9 but some time later.  However, I am satisfied from the evidence of Mr Hunter and Ms Ashurst that the photographs do not depict any material difference between the setup of the premises between mid-August 2013 and the date when the photographs were taken. 
29. [29]
    Ms Ashurst swore an affidavit some 15 months after the incident when Mr Hunter attended at the Southport Police Prosecutor’s Office to collect the QP9.  In her affidavit, Ms Ashurst gave evidence that she could recall Mr Hunter attending at the Police Prosecutor’s Office.  She gave evidence that she could recall details such as hearing a “beep’ when she released remotely the first door through which a person must pass to reach the Office.  She stated that she heard a second “beep” indicating that Mr Hunter was at the second internal door.
30. [30]
    Ms Ashurst gave evidence that she looked at a monitor near her and saw Mr Hunter sitting in a wheelchair at the front door.  Ms Ashurst stated in her affidavit that she immediately went downstairs to open the door and greet Mr Hunter.^[7]  The evidence on this point was disputed by Mr Hunter.  At the hearing, Ms Ashurst was more circumspect about what she had done on the day in question. 
31. [31]
    Mr Hunter set out in his filed statement that when he reached the final glass door marked as being the Police Prosecutor’s Office, and now the image in Exhibit 3, he pushed a buzzer and he was let inside.^[8] It was then he found himself at the bottom of some stairs.^[9]   There was no lift.^[10]  He yelled out to get attention.^[11]  Mr Hunter stated that he did this repeatedly (3 to 4 times) until someone called down from above.^[12] A person came down the stairs and Mr Hunter told her who he was and that he was there to collect a QP9.^[13]
32. [32]
    In his second filed statement, Mr Hunter confirmed the version of events set out in his first statement. He further stated that he had been highly embarrassed by being made to yell out multiple times to get attention.^[14]  He described himself as being angry and that he was furious after he left the stairwell.^[15]
33. [33]
    In his oral evidence at the hearing, Mr Hunter denied the suggestion put to him that the employee, now identified as Ms Ashurst, had come down to him within moments of his arrival at the Prosecutor’s Office.  Mr Hunter agreed that he had seen cameras situated at the gate and at the entry to the Prosecutor’s Office but insisted that he had to yell out to get attention from the staff above the stairs. 
34. [34]
    Mr Hunter was unable to estimate how long he had waited.  He explained that his emotions were involved and he felt frustrated that he could not access the office of a government official. 
35. [35]
    In her affidavit, Ms Ashurst stated that Mr Hunter was very irate once she had reached him.  I found that aspect of her evidence quite compelling.  It was difficult to understand why Mr Hunter would be so irate if Ms Ashurst had come down to him immediately he had announced his arrival at the ground floor door of the Prosecutor’s Office by pressing the buzzer near the door.  On Ms Ashurst’s version, she had let Mr Hunter into the office and he was not waiting by the stairs at any time before she greeted him.     
36. [36]
    Having had the opportunity to observe Mr Hunter at the hearing when he was being cross-examined, he gave me the impression of being a man who was assertive but respectful.  He impressed me as a truthful and accurate witness who had a good recall of what had happened to him during the events of which he complains.  His version is more consistent and probable than the version of events given by Ms Ashurst.  I accept that Mr Hunter was irate, angry and furious but there was a cause for this heightened emotional state. 
37. [37]
    I am satisfied that the cause of Mr Hunter’s raised emotions was the fact that he could not access the place where he had to collect the QP9 due to that place being at the top of stairs in a building without lift access to that place.  I find that Mr Hunter became embarrassed and then angry when he had to yell out to get Ms Ashurst’s attention and that he had to yell out repeatedly. 
38. [38]
    Although Ms Ashurst denied that she had heard Mr Hunter yelling out, she did qualify her evidence at the hearing to concede that she could have been on the telephone at the time Mr Hunter had arrived at the Prosecutor’s Office.  She conceded that as a result she may not have heard the beeps from the door buzzer and that she only realised someone was waiting when she looked at her camera monitor. However, that version does not give a logical explanation for all that had happened. 
39. [39]
    A reasonable inference can be drawn from the facts that Ms Ashurst was on the telephone when Mr Hunter arrived at the door of the Prosecutor’s Office.  I am satisfied that she heard the beep from the door buzzer and had automatically let Mr Hunter in through the door.  I find it was more probable than not that she had not checked the monitor to see who was at the door.  I find that Mr Hunter waited inside the ground floor area at the bottom of the stairs where he was outside the range of vision of the external door camera.  Ms Ashurst continued on her telephone call.  I find that Mr Hunter had yelled out for attention and after some delay, Ms Ashurst called down to him when he had not come up to the counter area where persons usually came to be served.  I find that Ms Ashurst had to call down to Mr Hunter as she could not see him waiting near the stairs on the monitor.  It was then that Ms Ashurst went down to meet Mr Hunter.  
40. [40]
    I am satisfied that Mr Hunter has established the factual basis of the three complaints he made.  He submitted that the complaints reveal that the State of Queensland through its operation of activities at the Southport police station and at the Southport Police Prosecutor’s Office had exercised power under State law which was in breach the Anti-Discrimination Act. 
41. [41]
    One of the purposes of that Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination.^[16]   The Act prohibits discrimination on the basis of impairment.^[17]  It was not disputed that Mr Hunter has a relevant impairment.  The question is whether Mr Hunter was accorded equality of opportunity in his dealings with the government agencies involved in his complaints. 
42. [42]
    Mr Hunter was not treated differently from persons without an impairment who find themselves in circumstances where they are required to have their fingerprints taken.  He went to a police station as required and he submitted himself to the usual process for scanning of fingerprints.  However, because of his impairment I have found that the process operated in a manner which was not easy and straightforward as it is for persons without an impairment but was prolonged and demeaning.
43. [43]
    When Mr Hunter went to collect the QP9 from the Southport Police Prosecutor’s Office, he was not treated differently from persons without an impairment who attended at that office to collect a QP9.  However, because using the stairs was the sole means of access by persons to that office and because of the absence of a lift, he was disadvantaged by the process used to collect the QP9 because of his impairment.
44. [44]
    Mr Hunter submitted that these incidents amounted to indirect discrimination.  Sackville J has described the purpose of prohibiting indirect discrimination in the following terms: “… is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common...”^[18] 
45. [45]
    Mr Hunter had been issued with a notice requiring him to attend the Southport police station for identification processing which included fingerprinting.^[19]  I accept the evidence of Mr Hunter that he was informed that failure to do so would result in detriment to him.^[20]  Mr Hunter was required to have the fingers on both hands scanned by a device fixed within a cabinet.  He was not given an option to have his fingerprints taken by any other method, including the wet method generally used before the live scanning method was introduced.
46. [46]
    By requiring Mr Hunter to have his fingers scanned by a scanning device affixed to a cabinet, he was required to adapt to a device which was functional only when a person stood in front of the device, placed their opened palms onto the scanning plate and applied downwards pressure onto the plate so that the fingers of both hands could be scanned by the device.  Mr Hunter was unable to comply with the requirement that his fingers be scanned in that manner because he could not stand in front of the device and place both hands opened up to reveal his finger tips due to his impairment.  Mr Hunter had to sit side onto the device and then use a method by which the prints on one hand were scanned in an awkward and prolonged manner and the prints of his left hand were not able to be scanned at all.  Persons who are required to have their fingerprints scanned and who do not have an impairment that prevents them from standing at the front of the device and who could freely open their hands to reveal their finger tips could comply with the standard manner of use of this device fixed within a cabinet. 
47. [47]
    The respondent had submitted that Mr Hunter could have declined to have his fingerprints taken and the operator would have not proceeded with the process.  However it was Mr Hunter’s evidence that he was not told that he had any such option.  I accept his evidence on this point.  I am satisfied that if Mr Hunter had been given the option not to proceed with the live scanning process, he would have recalled being told of that option and was more likely than not to invoke that option during the process rather than struggling to comply with a process that he says caused him physical discomfort and humiliation.
48. [48]
    Mr Hunter submitted that the requirement that his fingerprints were scanned by this device was not reasonable. Evidence was given about alternatives to the use of a scanner fixed in a cabinet.   Michael Fletcher, a sergeant of police working in the Fingerprint Bureau, gave evidence that live scanning has been used in Queensland since 2006.^[21] Approximately 90% of fingerprints are now recorded electronically on a LiveScan device.^[22]  Of the 68 devices used in Queensland, 44 are cabinet devices, 20 are desktop devices and four are portable devices.^[23] 
49. [49]
    Sergeant Fletcher gave evidence that the fixed cabinet devices were primarily used in watch houses because of its safety features in a custodial environment.^[24]  Cabling associated with the device can be kept away from persons using the device when located in a cabinet setting. Sergeant Fletcher conceded that the use of a desktop device in a police station setting did not need to be as secure as using a scanning device in a watch house setting where cabinet devices were the best choice of device.  
50. [50]
    Desktop devices are essentially the same device but without a cabinet housing and can be located on a normal height table in a police station.  The purchase price of the desktop device was said to be virtually the same as the price of the cabinet device.^[25]   Portable devices are not used in the police service for offender identification purposes and are used in the community when a large number of persons are scanned for a particular purpose. 
51. [51]
    Despite some ten years’ experience as a fingerprint expert, Sergeant Fletcher had never taken fingerprints from a person in a  wheelchair.^[26]  The scanner operator in Mr Hunter’s case, Constable Samiuela Hala, had not had any specific training about taking fingerprints from a person in a wheel chair.  He stated that he used common sense and if a person complained of discomfort during the process, he would stop.  Constable Hala conceded that he could understand that a person may not feel willing to complain when participating in an identification process at a police station.
52. [52]
    The police service had at least two other practicable ways to take Mr Hunter’s fingerprints: namely to use a desktop scanning device or to use the wet method formerly used before the introduction of electronic scanning. There was no suggestion in the evidence from the respondent that there was any urgency in completing the fingerprint process in the case of Mr Hunter.  Once it was realised that Mr Hunter was a wheelchair user, the police prosecuting service had the opportunity to arrange alternatives to the cabinet scanning device. 
53. [53]
    Given the existence of some 20 desktop devices in Queensland, the police prosecuting service had the means of sourcing a desktop device for use in the case of a wheelchair user.  Alternatively, the police prosecuting service could have used the wet method as the evidence given by Sergeant Fletcher was that 90% of fingerprints were taken electronically, leaving some 10% that are taken by the more old fashioned wet method.  The Training Officers Help Guide annexed to Sergeant Fletcher’s statement of evidence clearly provides for use of the wet method as an option for taking fingerprints in response to an Identifying Particulars Notice.^[27]  Sergeant Fletcher’s evidence confirmed that the option of taking fingerprints by the wet method is still available in all sites where electronic scanning is usually carried out.^[28]
54. [54]
    The evidence from Mr Hunter and Sergeant Fletcher leads me to conclude that the use of an electronic fingerprint scanner housed in a fixed cabinet device is not designed to deliver services to persons in a wheelchair.  Persons in a wheelchair have to sit side onto the device, have to raise and then hold their arms up to the scanning plate and as a result, could not effectively exert downward pressure onto their hands situated on the scanning plate.  This process for wheel chairs users is awkward, prolonged and likely to cause discomfort.  The device is designed for use by persons who can stand in front of the device and who can put adequate downward pressure onto the scanning plate. 
55. [55]
    Mr Hunter had attached to his affidavit material various governmental policies and disability service plans.  Much of this documentation is written from an overview perspective and sets out general policies and commitments without specific strategies for implementation on the ground.  However, some of the filed documents do purport to provide specific commitments.  One such provide document filed by Mr Hunter is the Disability Service Plan of the Queensland Police Service for the period 2011 to 2014.^[29] 
56. [56]
    In the forward to this Plan, the then Commissioner of Police commented that the Police Service supports the Disability Services Act 2006 which requires every Government Department to develop a Disability Service Plan to identify and address issues regarding service delivery to people with a disability.  The then Commissioner Atkinson further stated that the Police Service is strongly committed to supporting the articles outlined within the United Nations Convention on the Rights of Persons with Disability to ensure persons with a disability have equal opportunities and access, recognises diversity and encourages non-discrimination practice through the promotion and protection of human rights.^[30]
57. [57]
    In the Disability Service Plan it is stated that the Police Service is committed to continuously improving the design and delivery of services for clients and is prepared to meet the challenges of providing modern services and infrastructure to support clients with a disability.  The Plan recognises that clients of the Police Service include suspects and people charged with committing offences.^[31]  
58. [58]
    Neither Sergeant Fletcher, nor Constable Hala prior to dealing with Mr Hunter, had used the cabinet scanning devise to take fingerprints from a person in a wheelchair. Neither witness was aware of any training about meeting the needs of persons with disability when taking their fingerprints, apart from how to deal with persons with hand deformities.  The use by the police prosecuting service of the cabinet scanning device in the case of Mr Hunter did not meet the declared willingness of the Police Service to meet the challenges of providing modern services and infrastructure to support clients with a disability.    
59. [59]
    Mr Hunter also filed a copy of the Queensland Police Service Vulnerable Persons Policy.^[32]  Constable Hala gave evidence that he was not sure if he was aware of that policy at the time he took Mr Hunter’s fingerprints in 2013.  The Vulnerable Persons Policy records the commitment of the Police Service to pursuing continuous improvement of policing services provided to vulnerable people, a category of persons which includes persons with physical disabilities.  In particular, the policy records that the Police Service will seek to support vulnerable people with dignity, respecting their individual needs, challenges and circumstances.^[33]   The policy records that every employee of the Police Service will seek to improve service delivery to vulnerable people in line with the ambitions of the policy.^[34]
60. [60]
    The treatment experienced by Mr Hunter on 9 August 2013 in requiring him to submit to a process that was not designed to meet his needs and that was inappropriate for his disability was not in accordance with the ambitions of the Vulnerable Persons Policy.  He was not treated with dignity during the scanning process and his individual needs were not respected.  I am not suggesting that Constable Hala was rude or overbearing.  To the contrary, I consider that Constable Hala did his best in the circumstances but he was simply unaware of the published expectations of his employer when dealing with persons with a disability.  He had followed the process as he had been trained to so but in doing so, the process impacted unfairly on Mr Hunter because of his disability.
61. [61]
    Rather than the operator adapting the process to meet the needs of a person with a disability, Mr Hunter was required to adapt to a process which was straightforward and quick for persons without a disability but which was for him prolonged and demeaning and which caused him discomfort.  It was not reasonable to require a wheelchair user with a paralysed hand to undergo the process using the fixed cabinet scanning device as the device was not designed for that use and the requirement was not in accord with the published policies of the Police Service in relation to dealing with persons with vulnerable persons with disabilities.   
62. [62]
    I accept Mr Hunter’s submission that it was not reasonable to require him to have his fingerprints scanned by the cabinet device that is not adequately functional for use by persons in a wheelchair and for persons who cannot voluntarily open their hands to reveal all their fingers.  I am satisfied that Mr Hunter has established that the use of the scanning device in a fixed cabinet set up amounted to indirect discrimination in terms of section 11 of the Act.          
63. [63]
    Mr Hunter goes on to submit that he was subjected to a further and separate incidence of indirect discrimination arising out of the attempt to take fingerprints on his left hand when Constable Hala had to manually uncurl the paralysed fingers on Mr Hunter’s left hand. Constable Hala gave evidence that he could not recall taking Mr Hunter’s fingerprints.  That is understandable given the passage of time and the likely great number of persons from whom he took fingerprints in the period from August 2013 to the date of the hearing at the end of November 2014. 
64. [64]
    Mr Hunter’s recollection was however clear and keen. I accept his evidence that Constable Hala manually opened up Mr Hunter’s paralysed fingers on his left hand on repeated occasions before disengaging from his attempts to scan the fingerprints from Mr Hunter’s left hand.^[35] 
65. [65]
    Mr Hunter submitted that Constable Hala, as a trained operator of the scanning device, should not have attempted to take fingerprints from his left hand as Mr Hunter could not comply with the requirement that he place his opened fingers onto the scanning plate.  It was not contested by the respondent that persons without paralysis in their hands would be able to comply with the requirement to place their opened fingers onto the scanning plate. 
66. [66]
    The evidence established that the only way for Mr Hunter to comply with the requirement made of him was to permit Constable Hala to open up his curled fingers.  Mr Hunter implicitly consented to this manual manipulation of his hand by not objecting at the time.  Again on this occasion, rather than the operator adapting the process to meet the needs of a person with a disability, Mr Hunter was required to adapt to a process which was straightforward and quick for persons without a disability but which was for him prolonged and demeaning and which had an intrusive impact on his bodily integrity.   
67. [67]
    The thrust of Mr Hunter’s submissions is that it was unnecessary in the circumstances for the manual manipulation to have taken place at all and in particular it was unnecessary for the manipulation to have been repeated several times.   The operator knew that he did not have to proceed with the scanning if a hand is obviously disfigured or injured. Constable Hala gave evidence that if there were parts of the hand or fingers that can be captured, then he continues with the process.^[36]
68. [68]
    The decision made by Constable Hala was made in ignorance of the Queensland Police Service Vulnerable Persons Policy which required him as a member of the Queensland Police Service to treat vulnerable persons with dignity and to respect their individual needs, challenges and circumstances.  It would have been obvious to him that Mr Hunter could not voluntarily open his left hand due to impairment and that as a result the fingers on that hand were not accessible for scanning purposes without some direct intervention on his part. 
69. [69]
    Mr Hunter contended that in the circumstances the actions of Constable Hala in manually opening his fingers were unreasonable, as it was unnecessary and the operator should have recorded from the outset of the process that prints could not be taken from the paralysed left hand.   I do not agree with that submission.  
70. [70]
    There is no evidence that satisfies me that Constable Hala knew or ought to have known from the outset that prints from Mr Hunter’s left hand could not be successfully obtained by the scanning process.  It was reasonable for Constable Hala to have made an attempt at obtaining the prints before conceding that this was in fact not possible.  He did so with the implied consent of Mr Hunter and I have found that the force he used was minimal and the force itself was not productive of physical discomfort. 
71. [71]
    However, Mr Hunter gave evidence that Constable Hala carried out his attempts three or four times before abandoning the process.  In doing so, Constable Hala had to manually manipulate each of Mr Hunter’s fingers and force them open individually on two or three occasions after his first failed attempt.  Given there are five fingers on a hand, the process would have been prolonged and overall a degrading experience for Mr Hunter.
72. [72]
    I am satisfied that it was unreasonable for Constable Hala to repeat the process of manually opening the paralysed fingers on Mr Hunter’s left hand after his first attempt on each finger was unsuccessful.  Constable Hala already knew from what he had just experienced that it would be difficult, if not unlikely, to obtain prints from the left hand fingers.  He would have known that to continue would require him to hold and manipulate Mr Hunter’s fingers which would involve prolonged personal contact with a part of Mr Hunter’s body that was disabled.  He knew he had the option of recording an exception which meant that prints could not be taken due to the disability manifested by Mr Hunter.
73. [73]
    The process of repeatedly attempting to scan prints of the fingers on his paralysed hand resulted in Mr Hunter being subjected to a prolonged and demeaning experience.   The effect of an apparently neutral requirement that a person place their fingers from an open hand onto a scanning plate did in fact in the case of Mr Hunter operate in a manner that discriminated against him as a person with a disability of his hand.  The purpose of the legislation to promote equality of opportunity for everyone was breached by the actions of Constable Hala when he failed to bring an end to a process when continuing that process was impacting unfairly on Mr Hunter due to his impairment.
74. [74]
    I am satisfied that Mr Hunter has established that manually opening Mr Hunter’s paralysed fingers on his left hand several times after the first occasion when prints could not be recorded amounted to indirect discrimination in terms of section 11 of the Act.
75. [75]
    Mr Hunter contended that he was also subjected to indirect discrimination when he attended at the Police Prosecutor’s Office to collect the QP9.  Mr Hunter could not access the place where the QP9 was to be collected as that place was at the top of stairs and there was no lift access to that place. I have found that Mr Hunter had to yell out repeatedly to gain attention before the relevant departmental officer responded to his enquiry.   
76. [76]
    The respondent submitted that Mr Hunter was not required to climb a set of stairs in order to collect the QP9.  There was evidence that a QP9 could be emailed or posted out to a person if they did not go to the Prosecutor’s Office to collect the QP9 in person. The evidence established to my satisfaction that neither Mr Hunter nor anyone else was subjected to a requirement that the only way to collect a QP9 from Southport was to climb a set of stairs in the Prosecutor’s Office.   Attendance at the Prosecutor’s Office was merely one of at least three methods used to collect a QP9. 
77. [77]
    If a person took the option to collect the QP9 personally from the Prosecutor’s Office, they had to access a government office that was not automatically open to the public.  The Prosecutor’s Office at Southport had a controlled entry as was clearly established by the photographs tendered into evidence.  By the time a person had gone through the final door leading to the Prosecutor’s Office, they had had to make their presence known by operating a buzzer on two doors and they had also been monitored visually at the Office entry point.  Despite there being no public right of entry to the Prosecutor’s Office, members of the public could access the Office for certain limited purposes.  Mr Hunter attended at the Office for one of those authorised purposes and he was subject to the terms of entry.     
78. [78]
    Mr Hunter clearly established by his evidence that his experience at the Prosecutor’s Office was frustrating and unpleasant.  However, that is not in itself enough to satisfy the tribunal that he had been subjected to indirect discrimination in this incident.  Mr Hunter did not satisfy the Tribunal that the State of Queensland had imposed a term on him that he had to climb the set of stairs at the Prosecutor’s Office in order to collect the QP9 from that Office.   
79. [79]
    The evidence from the respondent satisfied me that there was a system in place that specifically catered for those persons who had mobility difficulties which prevented them from using the stairs.  It was part of the duties of Ms Ashurst to monitor people coming into the downstairs entry to the Prosecutor’s Office and to assist anyone with mobility problems.  I am satisfied that Ms Ashurst had been distracted from noticing immediately that Mr Hunter required her intervention and she only became aware of this after Mr Hunter had yelled out and gained her attention. 
80. [80]
    The system put in place by the respondent had effectively failed to work smoothly in the case of Mr Hunter, thereby causing him frustration and anger.  However, I was not satisfied that the system put in place to provide access by persons with mobility difficulties to services situated on an upper floor office without a lift was unreasonable.  The Prosecutor’s Office was not generally open to the public.  A staff member had been assigned the role of monitoring who was seeking access to the Office and to respond to their enquiries, whether at the upper floor or at ground level. 
81. [81]
    I was satisfied that there was an equality of opportunity for all persons who attended the Prosecutor’s Office to collect a QP9 or to transact some other lawful business at that Office.  Mr Hunter was able to collect the QP9 from the Office using the system put in place.  It is regrettable that the system did not operate exactly as it was designed to do.  The respondent should look at improving the system to minimise the risk that other people might have to experience the indignity of having to yell out to gain attention when the staff member monitoring the entry door is busy with other duties.   
82. [82]
    Mr Hunter has succeeded in establishing indirect discrimination in two out of his three complaints.  I consider that the finding that the State has been in breach of the Anti-Discrimination Act should assist in achieving the purposes of the Act: to ensure that legislation that protects fragile freedoms is used to educate the community to respect and appreciate the dignity and worth of everyone.^[37] 
83. [83]
    The Act also recognises that compensation for damage caused by the contravention of the Act can be ordered.^[38]  The Act provides that damage can include offence, embarrassment and humiliation.^[39] 
84. [84]
    Mr Hunter submitted that the Tribunal should order compensation in the sum of $15,000 for the first complaint and $30,000 for the second complaint.   Mr Hunter gave evidence that he had felt extremely vulnerable during the process when his fingerprints were or were attempted to be scanned.^[40]  He felt discomfort.^[41]  He found the process physically stressful and he felt humiliated.^[42] His embarrassment at being at the police station was significantly worsened by the extended time it took to take his fingerprints.^[43]
85. [85]
    Mr Hunter described the process of having his paralysed fingers manually opened as a degrading process.^[44]  He gave evidence that he felt significantly degraded during the process with his left hand resulting from the extended period of being humiliated repeatedly and unnecessarily.^[45]  He felt physically abused.^[46]  He gave evidence that he was in an already stressed state and he was furious with the ignorance on which the process was based.^[47]  
86. [86]
    The respondent submitted that a proper consideration of the evidence should not result in a finding that Mr Hunter was as adversely affected by the incidents as he claimed at the hearing.  The respondent submitted that Mr Hunter manifested no objection to the process at the time and did not make any contemporaneous complaint of discomfort or humiliation.  The respondent submitted that any stress experienced by Mr Hunter was more the result of having to attend at the police station rather than the result of what had transpired during the fingerprint process. 
87. [87]
    This submission is not sustainable.  Constable Hala conceded that it was understandable that Mr Hunter did not overtly complain about the process when he was under a requirement to provide identification data after being charged with a criminal offence.  I accept that Mr Hunter found himself in a novel situation.  He went along to the best of his ability with what was required of him and without complaint as he was unaware that he had any leeway to object.  I accept Mr Hunter’s evidence that he nevertheless felt discomfort, physical stress on his body, embarrassment, degradation, humiliation and anger.  Mr Hunter gave a clear account of what he had experienced.  His evidence was carefully and thoughtfully given and was credible in nature and delivery.  
88. [88]
    The State had failed to ensure that Mr Hunter was in fact accorded equal treatment before the law.  The submission of the respondent ignores the inherent impact on a person’s dignity and worth when their rights to equal treatment before and under the law are breached.  Mr Hunter is a disability advocate.  It is understandable that he felt the impact of these breaches more keenly than persons who may not be so aware of their rights.
89. [89]
    The respondent submitted that the amount of compensation sought by Mr Hunter was tantamount to aggravated or exemplary damages rather than an amount that properly compensated him for the hurt he had sustained.   The respondent argued that such punitive orders could not be made against the State. 
90. [90]
    In view of my findings that Mr Hunter had experienced discomfort, physical stress on his body, embarrassment, degradation, humiliation and anger because of the actions of the agents of the State, the compensation sought by Mr Hunter does not come within aggravated or exemplary damages.   Although Mr Hunter had argued that the State’s actions had been in breach of various international conventions and federal policies, I am satisfied that the basis for compensation is the State’s breach of Queensland law.  Mr Hunter should be compensated for the effects of that breach on him.
91. [91]
    Neither Mr Hunter nor the respondent referred the Tribunal to any comparable case when compensation had been assessed.  Mr Hunter did not submit that he sustained any personal injury because of the actions of the respondent.  In cases where compensation of $20,000 or more has been awarded for non-economic loss, the assessment has usually been based on the presence of an injury with some degree of ongoing effect on a person’s psychological or emotional functioning.^[48]  
92. [92]
    This is not the case here. The guidelines for the principles of assessment of compensation were set out succinctly in Bell v State of Queensland & Anor (no 1).^[49]  Where relevant to this case, the principles support an assessment whereby Mr Hunter should be compensated for damage arising directly and naturally from the contravention rather than being limited to losses that were reasonably foreseeable.^[50]        
93. [93]
    I was not persuaded by Mr Hunter that the appropriate compensation for the two events of discrimination would be $45,000.  The two events occurred in a single set of dealings and caused temporary feelings of physical discomfort and emotional distress.  However, the Anti-Discrimination Act is rights based legislation and I accept that the effect of the contravention on a person who is a longstanding rights champion was keenly felt.  I am satisfied that compensation of $8,000 is appropriate for the damage occasioned to Mr Hunter.   
94. [94]
    Section 209(1) of the Act anticipates that the order awarding compensation should also specify a time within which the compensation should be paid.  I order that the payment must be made to Mr Hunter within 45 days.    
95. [95]
    Mr Hunter was not represented.  No order for costs will be made.