JVM v Brisbane City Council[2024] QCAT 578

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The first respondent administers a unit that manages requests for information pursuant to the Information Privacy Act 2009 (Qld) (‘IP Act’) and Right to Information Act 2009 (Qld) (‘RTI Act’). The second, third and fourth respondents were at relevant times employees in the Right to Information unit (‘RTI unit’). The second respondent was in a supervisory role. The third and fourth respondents were decision makers at all relevant times within the RTI unit. The fourth respondent did not make any decisions for applications made by JVM, though had dealt with previous applications lodged by or on behalf of JVM’s husband, MTM.^[1]
2. [2]
   JVM and MTM had previously made requests for information through the RTI unit. Those requests were made by email and were accepted and processed by the RTI unit.
3. [3]
   MTM is a previous employee of the first respondent. JVM had been given approval by MTM to make applications for information on his behalf. Resulting from various requests made by JVM and MTM to the RTI unit, they have also been granted extensions of time to seek internal review.
4. [4]
   The complaints arise out of JVM’s interactions with the respondents from August 2021.

Jurisdiction and Procedure

5. [5]
   A referral was received by the Tribunal as a referral pursuant to the provisions of the Anti-Discrimination Act 1991 (Qld) (‘ADA’). The Tribunal has the function of hearing and determining the complaint pursuant to s 174A(a)(iv) of the ADA.
6. [6]
   In construing legislation that protects or enforces human rights, the High Court has determined that there is special responsibility to take account of and give effect to the statutory purpose.^[2]
7. [7]
   Pursuant to s 174C(1) of the ADA, the Tribunal may exercise the powers conferred on it under the ADA or the “relevant tribunal Act” (in this case, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)).
8. [8]
   In accordance with s 32(2) of the QCAT Act, the Tribunal has conducted all the proceeding entirely based on documents without the parties, their representative or witnesses appearing at a hearing.
9. [9]
   The ADA protects people from unfair discrimination in certain areas of activity by prohibiting direct and indirect discrimination based on an “attribute”, including impairment.^[3] This includes in the provision of goods and services and in the performance of any function as well as in the exercise of power under a State law or for the purpose of a State Government program.^[4]
10. [10]
    “Impairment” is broadly defined. It means:

    1. the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
    2. the malfunction, malformation or disfigurement of a part of the person’s body; or
    3. a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
    4. a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
    5. the presence in the body of organisms capable of causing illness or disease; or
    6. reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

7. presently exists; or
8. previously existed but no longer exists.^[5]

11. [11]
    Section 11 of the ADA provides:

11 Meaning of indirect discrimination

1. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

1. with which a person with an attribute does not or is not able to comply; and

2. with which a higher proportion of people without the attribute comply or are able to comply; and

3. that is not reasonable.

2. Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

1. the consequences of failure to comply with the term; and

2. the cost of alternative terms; and

3. the financial circumstances of the person who imposes, or proposes to impose, the term.

3. It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

4. In this section—

term includes condition, requirement or practice, whether or not written.

12. [12]
    Section 46 of the ADA states:

46 Discrimination in goods and services area

1. A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person—

1. by failing to supply the goods or services; or

2. in the terms on which goods or services are supplied; or

3. in the way in which goods or services are supplied; or

4. by treating the other person unfavourably in any way in connection with the supply of goods and services.

2. In this section, a reference to a person who supplies goods and services does not include an association that—

1. is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and

2. does not carry out its purposes for the purpose of making a profit.

13. [13]
    Services includes ‘services provided by a public or local government’.^[6]
14. [14]
    Section 101 of the ADA provides:

101 Discrimination in administration of State laws and programs area

A person who—

1. performs any function or exercises any power under State law or for the purposes of a State Government program; or

2. has any other responsibility for the administration of State law or the conduct of a State Government program;

must not discriminate in—

3. the performance of the function; or

4. the exercise of the power; or

5. the carrying out of the responsibility.

15. [15]
    If an exemption applies, it is not unlawful to discriminate with respect to a matter that is otherwise prohibited.^[7]
16. [16]
    With respect to the burden of proof in this case, at the time of the referral of the complaint, the ADA requires that:

    1. It is for JVM to prove, on the balance of probabilities, that the respondent contravened the ADA, subject to the requirements in ss 205 and 206 of the ADA;^[8]
    2. In respect of the allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable;^[9]
    3. Insofar as the respondent wishes to rely on an exemption, the respondent must prove, on the balance of probabilities, that it applies.^[10]
17. [17]
    The question of the correct formulation of the burden of proof in this case faces some complexity because of the passing of amending legislation that leaves the matter in some doubt.
18. [18]
    On 1 December 2024, amendments arising from the Respect at Work and Other Matters Amendment Act 2024 (Qld) commenced. In particular, section 47A of the Respect at Work and Other Matters Amendment Act 2024 (Qld) amended ss 204 – 206 of the ADA.
19. [19]
    Section 51 of the Respect at Work and Other Matters Amendment Act 2024 (Qld) includes:

285A  Burden of proof for complaints about pre-commencement conduct

1. This section applies in relation to—

1. a complaint made before the commencement that, immediately before the commencement, had not been finally dealt with; or

2. a complaint made after the commencement in relation to an alleged contravention of the Act that happened before the commencement

2. New sections 204 and 205 do not apply in relation to the complaint.

3. Former sections 204 to 206 continue to apply in relation to the complaint.

20. [20]
    The effect of the proposed section 285A is that complaints not dealt with prior to commencement would continue under the previous onus of proof provisions. However, section 285A did not commence on 1 December 2024 and will commence on 1 July 2025.^[11]
21. [21]
    In determining this matter based on the onus of proof that existed at the time the referral was made, I have considered the presumption at common law that retrospectivity of legislation does not apply.^[12] This is further enshrined in section 20 of the Acts Interpretation Act 1954 (Qld).
22. [22]
    It is settled law that the presumption against retrospectivity of legislation can be rebutted where the legislative amendments are procedural and not substantive in nature. Whilst the changes to the sections relating to the onus of proof are procedural in nature, the intent of the Respect at Work and Other Matters Amendment Act 2024 (Qld) is to amend the ADA to change the rights and liabilities of individuals.
23. [23]
    The explanatory notes for the Respect at Work and Other Matters Amendment Bill 2024 (Qld) state a key objective of the Bill is to amend the ADA to “introduce a positive duty to eliminate all forms of unlawful discrimination, sexual harassment, vilification and other associated objectionable conduct as far as possible”.^[13] The Respect at Work and Other Matters Amendment Act 2024 (Qld) enlarges and updates protected attributes, changes the timeframe for complaints and expands the ability to bring representative complaints.
24. [24]
    The explanatory notes for the 3^rd reading for the Respect at Work and Other Matters Amendment Bill 2024 (Qld) state on pages 14 – 15:

Amendment 17 amends clause 51 (Insertion of new ch 11, pt 10) to insert new section 285A (Burden of proof for complaints about pre-commencement conduct). New section 285A applies in relation to a complaint made before the commencement that had not been finally dealt with immediately before the commencement, or a complaint made after the commencement in relation to an alleged contravention of the Act that happened before commencement. New sections 204 and 205 do not apply, and former sections 204 to 206 continue to apply, in relation to the complaint. The purpose of new section 285A is to clarify that the new provisions regarding burden of proof to be inserted by clause 47A will not affect complaints that are already on foot when the new provisions commence and will not apply to complaints about alleged contraventions that occurred Respect at Work and Other Matters Amendment Bill 2024 Page 15 prior to the commencement of the new provisions.

25. [25]
    The clear intent when the amending act was passed was for the new provision to not be applied to matters that were currently before the tribunal. On this basis, I consider that this matter should be determined in accordance with the onus of proof as it existed when the referral was made.
26. [26]
    Despite having applied the burden of proof under the previous provisions, I believe that my conclusion would have been the same under the new provisions, though my formulation would be different.
27. [27]
    The Tribunal is not bound by the rules of evidence.^[14]

The Complaint

28. [28]
    JVM alleges that she has been indirectly discriminated against by the respondents because of an impairment. It is alleged that this occurred in providing goods and services and in relation to state laws and programs. She further alleges breaches of her human rights including her right to recognition and equality before the law and her right to freedom of expression.
29. [29]
    She alleges her impairment is mental illnesses and medical pain conditions. These impairments affect her by it being simpler for her to apply for access to her information by email. She alleges that it is unreasonable to expect her to complete a form. Whilst she acknowledges that she did complete the forms, she states that she did so under duress, causing great distress exacerbating her pain and other symptoms.
30. [30]
    The parties have provided extensive material including copies of emails and other documentation. I do not propose to restate the contents of each document in this decision but to summarise relevant key points as I have understood them.

First Complaint

31. [31]
    JVM made requests to the RTI unit for right to information applications (‘RTI applications’). JVM did this by email, as she and MTM had done so in the past. Decisions were made by the respondents and communicated on 26 August 2021, 20 September 2021 and 6 October 2021 that requested her to make future RTI applications using the form approved by the Chief Executive and published by the State of Queensland complying with section 192 of the RTI Act.
32. [32]
    The specifics of the allegations originate from an email to the RTI unit on 23 August 2021 that included as part of the body of the email an RTI application. JVM requests that the information not be provided as a “sharelink” file. She requests that the third and fourth respondents and another person not be the decision-maker, and particularly, that the third respondent not correspond with her. She notes that her disability support pension card has been previously provided to the RTI unit, and her email includes the statement “I continue to suffer significant illnesses, and request Council respect my specific medical and personal circumstances when dealing with me” (‘the email statement’).^[15]
33. [33]
    The third respondent replied to JVM on 26 August 2021 advising of a requirement for the RTI application to be in the approved form. The approved form was provided by link and attachment.^[16]
34. [34]
    JVM submitted the online form that day. She also sent a lengthy email stating that she believed her original email should have been accepted as it was substantially compliant and advising of her “considerable disabilities”. She questioned why discretion was not applied to her original email and included the email statement.^[17]
35. [35]
    On 31 August 2021 JVM provided by email the acknowledgement letter for her information privacy application.^[18] To provide clarity in separating the issues, this series of events is referred to as ‘IP application of 26 August 2021’.
36. [36]
    On 17 September 2021, JVM made a further request for information to the RTI unit by email.
37. [37]
    On 20 September 2021, the third respondent wrote to JVM and requested that she use the approved form for the IP application of 17 September 2021.^[19] JVM responded on the same date stating inter alia that her email “substantially complies with the form”; that the form is unnecessary and the RTI unit can use their discretion to accept it; that her email should be sufficient given her “considerable disabilities” and that she is being harassed.^[20]
38. [38]
    On 20 September 2021, JVM completed the online form, referring to her email of 17 September 2021 within the application.^[21] To provide clarity in separating the issues, this is referred to as ‘IP application of September 2021’.
39. [39]
    On 21 September 2021, correspondence was sent acknowledging receipt of the IP application of September 2021.^[22]
40. [40]
    On 6 October 2021, the second respondent forwarded to JVM an email stating that although there was a discretion to use alternatives to the approved form, it should be used unless it was not possible. This correspondence relied on section 24 of the RTI Act. The second respondent also denied JVM’s assertions of bullying and states that it is a requirement that she complies with the RTI Act and the RTI unit’s processes.^[23]
41. [41]
    On 7 October 2021, JVM emailed the second respondent with various complaints that included statements that she is disabled and has significant disabilities. It again requested that the third respondent not contact her. It included the email statement.^[24]
42. [42]
    On 18 October 2021, the second respondent emailed JVM attaching a letter under his hand of the same date. It states–

I apologise for any undue stress my email may have caused you. At the time of writing to you, I was not aware that you had completed the valid form as requested by Ms Stevenson in her email to you of 20 September 2021. I thank you for completing the form as requested.

Unfortunately, I was not advised that you had submitted the form in response to Ms Stevenson’s email to you requesting the same and had I been informed of this, I certainly would not have followed up with an email to you.

As advised in my previous email, Council requires all persons making an application for information to use the prescribed form and I can confirm that this will apply for any future applications you may make to Council.^[25]

43. [43]
    JVM responded by email to the second respondent on 19 October 2021 where inter alia she did not accept the apology provided by him. She again raised issues of substantial compliance, spoke to being disabled and provided further information about how her disabilities impact on her. It alleged indirect discrimination and contained the email statement.^[26]
44. [44]
    On 27 October 2021, the third respondent forwarded a letter to JVM that provided notice of an intention to refuse to deal with the IP application of September 2021.^[27]
45. [45]
    On 10 November 2021, the third respondent forwarded a letter to JVM that advised of the decision to refuse to deal with the IP application of September 2021.^[28]
46. [46]
    By correspondence dated 7 December 2021, the decision of the internal review to confirm the decision to refuse application was sent to JVM.^[29]
47. [47]
    On 5 January 2022, JVM applied to the Office of the Information Commissioner (‘OIC’) for external review. On 7 September 2022, the OIC set aside the first respondent’s deemed refusal of access and substituted a determination that the first respondent was entitled to refuse to deal with the access application pursuant to section 60 of the IP Act.^[30]

Second Complaint

48. [48]
    There are overlapping events in relation to the first and second complaint. For the second complaint, JVM had sought an extension of time to lodge a request for internal review of the RTI unit’s decision notice dated 30 September 2021.
49. [49]
    A decision was made on 21 October 2021 to refuse the request and it is alleged by JVM that refusal was unreasonable, resulting in her self-harming due to significant distress that could not be contained by her usual coping strategies. She alleges a further incidence of trauma resulting from a welfare check that was conducted on 27 October 2021 due to an email to the RTI unit where she advises that she self-harmed.
50. [50]
    The sequence of events is –

    1. On 30 September 2021, the third respondent forwarded a decision notice to JVM in respect of IP application of 26 August 2021. It included reference to JVM’s human rights. It provided information about her review rights. This email is referred to as “the IP decision notice”.^[31]
    2. JVM responded via email on 30 September 2021 detailing her distress due to the documents being provided by Sharelink file and the decision-maker being the third respondent. She requested no further correspondence from the third respondent alleging harassment and bullying with reference to her distress due to her suffering a debilitating mental illnesses and chronic pain. The email contained the email statement.^[32]
    3. The third respondent sent an email on 1 October 2021 attaching documents in PDF format.^[33]
    4. On 18 October 2021, JVM sought an extension to lodge an internal review request by email to the RTI unit. She stated that this is due to her considerable illnesses and noted that she had previously provided her disability support concession card evidencing her disability. She spoke to extreme stress that adversely impacts her health and well-being. Her email complained about the previous response from the third respondent and information being provided in a file share format. She requested an extension until 29 November 2021. Her email included the email statement.^[34]
    5. On the morning of 21 October 2021, the fourth respondent responded to JVM’s statement that her request for an extension of time was refused for the IP decision notice. This email noted that the request for internal review had a due date of 28 October 2021.^[35]
    6. On the afternoon of 21 October 2021, JVM responded saying that she was distressed and again requested an extension based on her “mental health/disability/impairment”. Her email included the email statement.^[36]
    7. A further email was sent to the RTI unit on 27 October 2021 by JVM. She again requested an extension of time. It referred to her incidences of self-harm. Her email included the email statement. It attached a letter from her psychiatrist of the same date that requested the RTI unit “grant any requests that JVM makes for an extension to complete requested tasks”.^[37]
    8. On 27 October 2021, the police conducted a welfare check on JVM. This incidence is referred to as “the welfare check”.
    9. On 28 October 2021, JVM forwarded to the first respondent an email that stated “I request an Internal Review of the Decision dated 20 September 2021”. She stated that she was prepared to assist the Council by providing a comprehensive explanation however the extension of time was not granted. In the body of this email, she alleged discrimination in failing to grant an extension of time as she is an impaired applicant. She also stated, “please note that I remain significantly disabled”.^[38]
    10. The third respondent emailed JVM on 8 November 2021 acknowledging receipt of the request for internal review.^[39]

Human Rights allegations

51. [51]
    JVM alleges that her human rights have been impacted, namely her right to recognition and equality before the law and her right to freedom of expression. She states that she was not recognised as a disabled/impaired person in her dealings with the respondent. She states, “I was not protected, but targeted deliberately to hinder or stop me accessing information under privacy legislation”.^[40]

Other arguments

52. [52]
    In supporting her contentions, JVM states that the respondents had prior notice of her impairment as –

    1. She had previously provided a copy of her Disability Support Pension card; and
    2. Documents had been provided to the first respondent by MTM in the context of his employment and applying for carers leave that provided some details of JVM’s impairments. This documentation has been included in previous privacy matters so the respondents should have known about her impairments.^[41]
53. [53]
    JVM has been unable to find any documentation through further right to information applications made to the RTI unit to support the respondents’ contentions that there was a change of policy in 2021 requiring her to complete a form. She alleges that they have acted in a way that is not compliant with the Public Records Act 2002 (Qld) or the Council Code of Conduct. This is an issue outside the scope of this decision, and I will not refer to it further.
54. [54]
    JVM refers at length to uncovered documents in RTI Act or IP Act applications that she says support a contention that the Brisbane City Council has been attempting to find ways to reduce how much of its resources are being used. I will not be addressing this further for the same reasons outlined in the paragraph above.
55. [55]
    JVM asserts that the second and third respondents acted in a way where there were conflicts of interests. This is not outlined with sufficient detail as to how it relates to her contentions. This is also an issue outside the scope of this decision and will not be referred to further.
56. [56]
    JVM takes issue with the documents being provided via a Sharefile link. She takes issue with being requested to nominate one format to receive the requested documents. She complains of correspondence from the respondents that frequently contained errors that she says:

.. sometimes I didn’t know whether this was incompetence or to frustrate me because I often go over dates and references contained in Council documentation when working through paperwork. A wrong date or reference number can have a flow-on effect and negatively impact my limited ability to correlate information and correspond with Council or complaint bodies.^[42]

57. [57]
    She takes issue with various operational procedures of the RTI unit and this will not be addressed any further as it is outside the scope of this decision.

Respondents’ Submissions

58. [58]
    The RTI unit is a small unit of the council with limited staff. A decision was made in August 2021 to ensure stricter compliance with sections 24(2)(a) of the RTI Act and section 43(2)(a) of the IP Act with a view to making processes more efficient and streamlined. This is said to have an additional benefit of reducing the workload for the staff. The respondents accept that prior to this date applications were made by JVM and MTM by email.
59. [59]
    The respondents advised JVM of this change in their processes on 26 August 2021.
60. [60]
    The second respondent states that documents were released via Sharefile link. JVM had previously requested copies of documents to be released in multiple formats and due to the stricter policy implementation, the intent was to provide the documents in a single format of JVM’s choosing. This balanced the capacity and operations of the RTI Unit against the requirements of s 68(3) and s 68(4)(a) of the RTI Act.^[43]
61. [61]
    The respondents deny that they had any reason to believe that JVM could not complete forms due to her impairment. It is accepted that they had received her Disability Support Pension concession card and that she had previously completed the form when requested. The respondents collectively deny that they had knowledge of nature or extent of JVM’s impairment prior to receiving the psychiatrist’s letter on 27 October 2021.
62. [62]
    The respondents believed that the decision not to grant an extension of time was reasonable as the process was simple, requiring an applicant to “only state that an internal review is sought, without requiring significant reasons to be provided in support of the internal review”.^[44]
63. [63]
    The second respondent requested the welfare check as he “was genuinely concerned for JVM’s safety and well-being after receiving the information from the Ethical Standards department”.^[45]
64. [64]
    The third respondent states that there had been previous refusals for extensions of time.^[46]
65. [65]
    The respondents deny that a failure to apply via a form would have resulted in an application being deemed withdrawn and that JVM would not receive access to her information. The respondents state that if her application was deemed withdrawn (which it wasn’t), JVM would have been able to make another application requesting the same information.^[47]
66. [66]
    Since receipt of the psychiatrist’s letter, the RTI unit has-

    1. Accepted emails from JVM as Applications under the RTI Act and/or IP Act, despite the form not being completed; and
    2. Requests for extensions of time have been granted.^[48]

Medical information

67. [67]
    JVM’s psychiatrist, in the letter dated 27 October 2021, stated –

JVM is in receipt of the Disability Support Pension from Services Australia. The conditions which this pension has been awarded to impact on her ability to attend to the documentation associated with council matters, in the time it takes to complete documentation, and in the amount of documentation she can complete in a given time frame.

When you make requests for JVM to complete documentation could you please

1. –Where possible, limit the amount of forms to complete or documents to review

1. –Grant any requests that JVM makes for an extension to complete tasks.

68. [68]
    For this proceeding, JVM provided a letter from her treating psychiatrist dated 22 April 2024 that provides an explanation of the various conditions that she experiences together with the functional impact on her.
69. [69]
    JVM has been diagnosed with dissociative identity disorder, post-traumatic stress disorder, major depressive disorder and obsessive-compulsive disorder. Her treating psychiatrist gives a detailed explanation of how each condition affects JVM, especially her ability to submit applications on the required form and meet the 20-business-day deadline for review requests. In summary it states–

    1. JVM has no control over her conditions and when she will be affected by them.
    2. She experiences symptoms daily.
    3. When she experiences symptoms, she cannot always recall what she has already done, and it impacts on her understanding of time.
    4. She suffers from disturbed sleep, which leads to increased fatigue and more severe migraines, further affecting her ability to complete tasks. This combination impacts her short-term memory, necessitates additional medication with a sedating effect, and makes it harder for her to concentrate.
    5. She experiences low motivation and is unable to make herself work on tasks.
    6. She experiences symptoms that mean that she is too distressed to deal with other tasks and cannot sustain attention.
    7. She checks paperwork multiple times before she can send it which is time consuming.
    8. When forms require the same information to be repeated in multiple sections, she becomes anxious about potentially missing something, which increases the time it takes to complete the form.
    9. She is unable to move on to other tasks until the checking compulsion is completed.
    10. She experiences pain, visual changes and an inability to sustain attention.
    11. When her irritable bowel syndrome flares up, she experiences cramping and diarrhea, which prevents her from being able to complete tasks.
    12. Her back pain makes it difficult to sit at a desk for prolonged periods.
    13. The length of JVM’s responses does not reflect the difficulties she experiences in undertaking tasks.
70. [70]
    JVM’s treating psychiatrist states –

In conclusion, the functional impact of her disabilities results in JVM being unable to attend to paperwork tasks in the format and the time frames that were given to her. This inability to attend to paperwork tasks is greater than that experienced by people who do not have JVM’s disabilities.

Goods and services or local government

71. [71]
    JVM has alleged that discrimination has occurred in the provision of goods and services^[49] or, in the alternate, in the administration of State laws.^[50] The definition of services includes services provided by a public or local government.^[51]
72. [72]
    The context of the complaints relates to the roles of the second, third and fourth respondents in performing the function and exercising power under the RTI Act and IP Act. I am satisfied that the appropriate area of activity in which discrimination is prohibited is pursuant to section 101 of the ADA that requires a person to not discriminate in the performance of the function; or the exercise of the power; or the conducting of the responsibility.
73. [73]
    I accept at all relevant times that the second, third and fourth respondents were administering a state law. Further that the first respondent as their employer is vicariously liable for the actions of its employees. There is no evidence that the second, third, or fourth respondents acted in a manner that was contrary to their employment.^[52]

Attribute

74. [74]
    To make a finding that JVM was discriminated against, I must firstly find that she has an ‘attribute’. JVM claims that she has an impairment, that is mental illnesses and medical pain conditions. These include:-

    1. Obsessive compulsive disorder, that means she has checking issues;
    2. Trauma-related illness;
    3. Chronic migraines and other severe pain conditions limiting the time that she can look at and work on a computer.
75. [75]
    JVM says that because of her conditions, distress impacts and further limits her daily functioning. Distress means that she requires more medication and medication causes sedation. Due to her disassociation symptoms, she is triggered by significant distress resulting in “issues like losing time, migraines, anxiety and emotional distress (triggering self-harm etc)”.^[53]
76. [76]
    The respondents have accepted that she does have an impairment per section 7(h) of the ADA which is due to her experiencing mental health conditions and other medical conditions.^[54]
77. [77]
    I accept that JVM has “a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”^[55] as I accept that she has various conditions that impact on her life at fluctuant and significant levels. I find that JVM has an attribute that is an impairment.^[56]
78. [78]
    ‘Discrimination on the basis of an attribute’ is defined in the ADA. It means:

    1. a characteristic that a person with any of the attributes generally has; or
    2. a characteristic that is often imputed to a person with any of the attributes; or
    3. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
    4. an attribute that a person had, even if the person did not have it at the time of the discrimination.^[57]
79. [79]
    JVM stated in her submission that she has checking issues due to her obsessive-compulsive disorder that is a characteristic of that condition. This is supported by the information provided by her psychiatrist that she checks documents multiple times and can become anxious that she has missed something, so that it takes longer for her to undertake, and she is unable to move on to other tasks until her checking compulsion is completed. I accept that multiple checking and taking longer to do something is a characteristic which a person with her attribute generally has. I also accept that this is a characteristic that is often imputed to a person with her attribute.
80. [80]
    JVM has trauma-related conditions as part of her impairment resulting in emotional distress, losing time and possible self-harm. I also accept that this is a characteristic that a person with the attribute generally has.
81. [81]
    JVM raises that she believes the actions of the respondents related to her representing MTM. He is a past employee whose employment was allegedly terminated whilst he was on workers compensation. She further states:

.. some of the information I utilised in complaints was from privacy releases, hence what I believe is deliberate (and unreasonable) against me (by various BCC RTI staff) to hinder or stop me accessing information held by BCC, or in making it difficult to request an Internal Review (IR) by not granting an extension. These actions were unreasonable (and harmful) given my impairment issues.^[58]

82. [82]
    I do not accept that JVM’s attribute included her association with MTM because of insufficient evidence as to MTM’s alleged attribute and how JVM’s association with him could give rise to her complaint.

Indirect discrimination

83. [83]
    The distinction between direct and indirect discrimination was described in Waters v Public Transport Corporation (1991) 173 CLR 349:^[59]

[21] A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon Black workers as opposed to white workers: Griggs v. Duke Power Co. (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

[23] For there to be (indirect) discrimination .. there must be a requirement or condition imposed upon the complainant with which the complainant does not or cannot comply but with which a substantially higher proportion of persons of a different status do or can comply.

84. [84]
    The ADA states that indirect discrimination happens when, amongst other criteria, a term is imposed with which a person with an attribute does not or is not able to comply.^[60]
85. [85]
    JVM’s material provided to the Tribunal is lengthy and difficult to understand. She complains of the requirement to use a form (first complaint) and the failure to provide an extension of time for a request for internal review (second complaint).
86. [86]
    It is crucial to identify the “term” imposed on the complainant that has the disparate effect. “Term” is widely defined as including condition, requirement, or practice, whether or not written.^[61]
87. [87]
    The respondents submitted the relevant terms imposed by the RTI unit were:

    1. A requirement for the complainant to submit any future RTI applications using the approved form (the first complaint); and
    2. A requirement for the complainant to lodge an internal review of the decision notice within the standard time frame of 20 business days from the date of the decision notice (the second complaint).^[62]
88. [88]
    I accept this as a correct summary of the relevant term in respect of the first complaint. However, regarding the second complaint, the term was linked to a failure to exercise discretion in extending the time period for compliance. Although I am not bound by JVM’s formulation of a requirement or condition,^[63] I am satisfied that this is an essential part of it. I have determined that the correct term for the second complaint is a requirement for strict compliance with a time limit, with the result that JVM was not given additional time to request an internal review of the decision notice.
89. [89]
    The circumstances in the present case are unusual. JVM complied with the first term and second term, despite the refusal to extend time.
90. [90]
    JVM states that compliance with the terms has come at personal cost to her in terms of impacting her health and well-being. JVM self-harmed and she has given various accounts of her resulting unwillingness to make subsequent requests to the RTI unit.
91. [91]
    The respondents have submitted a strict interpretation of ‘not able to comply’^[64] should be relied upon, however, JVM relies upon Hurst v Queensland [2006] FCAFC 100 and states that whilst she complied with the terms, she has experienced detriment as a result.

Hurst v State of Queensland

92. [92]
    In this case, the court was asked to consider a discrimination claim involving a profoundly deaf student who used Auslan sign language to communicate but was required by the respondent to be taught in signed English, without the support of an Auslan interpreter. The claim of indirect discrimination was made under commonwealth legislation. On appeal, the Full Court of the Federal Court held that in considering whether she was ‘not able to comply’ it was necessary to consider whether she would suffer serious disadvantage due to the requirement or condition imposed.^[65] 
93. [93]
    Member Roney KC stated in Hickson-Jamieson v University of the Sunshine Coast [2023] QCAT 66 at [128], citing Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 575-6 per Drummond J:

The applicant's inability to comply in this context must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element.

First complaint

94. [94]
    JVM says that she had difficulty in complying with the term to complete the form. She states this was evidenced by how the forms were completed (with reference to the substantive information provided for in her email instead of being repeated in the form). However, in her contentions, she also refers to her preference for applying by email. She refers to how email is more convenient for her record keeping.
95. [95]
    Whilst I accept evidence that JVM has difficulties with completing forms due to her checking issues and that she requires additional time, I note that she completed the forms on the same dates where requests were made to use the approved form. Despite the way that she completed the forms, they were accepted and acted on by the RTI unit. I do not accept that this amounts to a serious disadvantage experienced by JVM by the reason of the term imposed.
96. [96]
    I do not accept that JVM has proven indirect discrimination as detailed in section 11(1)(a) of the ADA and her claim fails in respect of the first complaint. Despite this finding, I have continued to consider the remaining elements in relation to the first complaint later in this decision.

Second complaint

97. [97]
    I have already accepted that JVM’s need for additional time is a characteristic of her attribute. As are distress and self-harm tendencies. I accept that although JVM complied that she did so suffering serious disadvantage.
98. [98]
    Between being told her request for more time was denied and her eventual compliance late on the last day for her to do so, she self-harmed and her emotional distress is clearly evidenced in her emails that she forwarded to the RTI unit on 18, 21 and 27 October 2021. This is supported in the statement of MTM who stated that he took JVM to see her treating psychiatrist on the evening of 21 October 2021.

Whether a higher proportion of people without the attribute comply or are able to comply

99. [99]
    This is the second element of indirect discrimination in section 11(1)(b) of the ADA. There is no direct evidence of that proportion of people and the Tribunal does not expect that complainants will come armed with the necessary statistics supporting this. It is permissible to take judicial notice of the matter.^[66]
100. [100]
     Proportion is typically assessed by identifying the group of people affected by the term and then asking whether a greater proportion of people without the attribute can comply with the term than those with the attribute.
101. [101]
     I believe that almost everyone without an impairment, or without an impairment similar to JVM's, would be able to use a form and submit an internal review within the standard time frame. While many people with an impairment can also complete the form and submit an internal review within the usual time frame, others with an impairment similar to JVM's would face additional challenges due to their condition when trying to meet both requirements.
102. [102]
     I find that the element of indirect discrimination in section 11(1)(b) of the ADA is met in that a greater proportion of people without an impairment would comply with the term or requirement.

Is the term not reasonable?

103. [103]
     The approach to the question of reasonableness in indirect discrimination matters has been summarised in Catholic Education Office v Clarke [2004] FCAFC 197 as being (citations omitted):^[67]

2. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other. Since the test is objective, the subjective preferences of the aggrieved person are not determinative but may be relevant in assessing whether the requirement or condition is unreasonable.

3. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.

4. The tribunal must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition. However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.

104. [104]
     Section 11(2) of the ADA requires consideration of all relevant circumstances in the case. These include the consequences of failing to comply with the term, the cost of alternative terms, and the financial circumstances of the person imposing or proposing the term.

First Complaint

105. [105]
     The respondents state that the requirement to use the approved form was reasonable. The requirement to use the approved form originated from section 24(2)(a) of the RTI Act that prescribes that a RTI application “must be in the approved form”. In accordance with section 192 of the RTI Act, the approved form was published.
106. [106]
     The respondents allege that there was a legitimate policy reason for the RTI unit’s preference to receive RTI applications in the approved form, as:

     1. It ensures that the information provided in support of the RTI application is clear and succinct;
     2. Ensures consistency and improvement of business processes overall;
     3. Assists applicant to understand what information the RTI and IP Unit requires in order to consider an application and be able to respond properly; and
     4. Avoids unreasonable interference with the operations of the RTI and IP unit, including by limiting the amount of repeat contact required with JVM to ascertain what information they sought.^[68]
107. [107]
     The approved form is said to reduce any risk of misinterpretation and significantly reduces time and cost in considering each RTI application to understand its scope.
108. [108]
     JVM does not agree that this was a reasonable requirement for several reasons that includes her inability to find evidence in any RTI application she has made since this action was commenced a formal policy or directive that was in place at the relevant time. I do not accept the failure to obtain any formal policy of the directive supports a finding that one does not exist. I prefer the evidence of the third respondent as to the circumstances surrounding the policy.^[69]
109. [109]
     JVM states that the respondent was using their discretion for her to make her applications by email before August 2021 as they had notice of her impairment as she had provided her disability support pension card. This is not accepted by the respondents. The disability support pension card is used for the purpose of obtaining a concession. The assessments undertaken by RTI unit officers are limited to whether a document meets the criteria for release and the documents are not otherwise considered. In other words, the contents are not examined in a way that then applies for future considerations.
110. [110]
     I accept that this did not amount to any knowledge by the RTI unit of JVM’s impairment that allowed them to apply discretion to her using email for previous RTI applications. For the purposes of indirect discrimination, it is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.^[70]
111. [111]
     I accept that the term was reasonable as it related to the IP Application of 26 August 2024. JVM, upon receiving an email requesting that she apply using the approved form did so on the same day being 26 August 2021. However, on the same date, she emailed the RTI unit advising of her difficulties due to her disabilities and asking why it could not be made with substantial compliance, that she detailed is by email applications.
112. [112]
     In considering the IP application of September 2021, also made by JVM by email, the reasonableness of the term is not as clear. At that time, the respondent had notice of JVM’s impairments, though not detailed to a sufficient level to explain her difficulties with complying with the term, and her request to consider an email as substantial compliance with the RTI Act. The second respondent provided an email response that states, “in accordance with s 24 of the Right to Information Act 2009 (which also relates to Information Privacy applications) in order for an application to be considered valid it must be on the prescribed form”.^[71] JVM completed the form on the same day, being 20 September 2021, referring in the body of the online form to her previous email of 17 September 2021. After completing the form, she sent further emails with complaints.
113. [113]
     In deciding reasonableness, I must consider the consequences of failure to comply with the term. I accept that JVM was always able to make another application for the subject information. In taking this into consideration, I find that the respondent has proven that the term was reasonable for the IP application of September 2021.
114. [114]
     The respondent has proven that the term complained of was reasonable for the first complaint.

Second complaint

115. [115]
     The respondent submits that the actions in respect of the review period were reasonable. The requirement for the time period to request an internal review is derived from section 82(c) of the RTI Act and s 96(c) of the IP Act. Both of those provisions state that an application must be “made within 20 business days after the date of the written notice of the decision or within the further time the agency or the Minister allows (whether before or after the end of the 20 business days)”.
116. [116]
     JVM states that the refusal of an extension of time was not reasonable. In support, she states that she had provided her disability support pension card evidencing her disability as well as providing a letter from her psychiatrist by email to the first respondent on 27 October 2021. She complied with the term on 28 October 2021.
117. [117]
     JVM’s distress was evident in her emails to the RTI unit dating back to 30 September 2021. She had previously been granted extensions of time with no medical proof and little information by way of support for her extension requests. On 18 October 2021 JVM requested an extension in time and stated:

I am concerned that without an extension granted in this matter, preparing an internal review request documentation and correspondence by the end of this month places extreme stress and, potentially, may detrimentally affect my health, life and well-being … I believe that Ms Stevenson is treating me unfavourably, and continues to do this deliberately knowing that I am disabled, and as such vulnerable to these particular unfavourable stresses being forced upon me by Ms Stevenson.

Making me have to unnecessarily type up emails, work on and research my privacy application/s, also takes up my very limited functioning time and causes me unnecessary distress, and aggravates my illnesses as well as using up valuable medical and psychiatric support and treatment time – which means my specific, recommended treatment (included specialist treatment) is minimised while I deal with these privacy concerns that adversely impact me.

118. [118]
     In response, her request was denied by the third respondent on 21 October 2021 by an email sent at 10:35am. I do not accept that the term imposed by the respondents at this time was reasonable.
119. [119]
     The second respondent states in respect of denial of the extension:

At the time, I considered that the Ms Stevenson’s decision not to grant an extension of time to JVM was reasonable, in particular, because the process for filing an internal review is a very simple process and requires an applicant to only state that an internal review is sought, without requiring significant reasons to be provided in support of the internal review.^[72]

120. [120]
     The fourth respondent states in respect of the denial of an extension of time:

I considered that the decision not to consent to the Extension of Time Decision was reasonable, having regard to:

The limited volume of information received under the August 2021 Application. Ordinarily, where large volumes of documents are received under an application, and I consider that it may take a significant amount of time for an applicant to review the documents to determine if they wish to lodge an internal review application, I would be inclined to grant an extension of time. I and Ms Stevenson had previously granted extensions of time to JVM and/or MTM where there were a large volume of documents produced (between 300 and 1000 pages). In this instance, the relevant documents produced to JVM consisted of only 47 pages; and

The fact that for an internal review request to be accepted and processed, it required JVM to send an email to the RTI Unit of the Brisbane City Council stating that she seeks an internal review of the August 2021 Application and a brief statement about the reason or grounds for internal review.^[73]

121. [121]
     The Third Respondent says about the request:

.. my reason for not agreeing to the extension on this occasion was because JVM was only required to send a short and simple email to request the internal review and there was still sufficient time for her to do so. The timeframe for JVM to request an internal review for the Decision Notice was by 28 October 2021. That meant JVM had a further 10 days from the date of her request to send an email, which could be limited to one sentence or paragraph, seeking an internal review ..^[74]

.. Applying a ‘reasonable person test’ as the RTI Unit did in decision making processes on a case by case basis, I considered that the 20 business days available to JVM to review the application documents and the requirement for JVM to submit a request for an internal review was more than sufficient.^[75]

122. [122]
     There is nothing in the internal email chain that indicates consideration of the reasons JVM provided in making this decision to not grant an extension.^[76] The statements provided by the second, third and fourth respondents do not include any consideration of JVM’s circumstances in deciding to not grant an extension, despite her providing details of her situation in her email of 18 October 2021.
123. [123]
     Section 82(c) of the RTI Act and s 96(c) of the IP Act envisages circumstances where extensions of time are granted. It allows the agency, in this case being the RTI unit, to allow further time. The respondents have provided no information in these proceedings as to the consequences of extending the time period for the internal review or the cost of this alternative.
124. [124]
     JVM sent a further email on 21 October 2021 at 3:53pm. She wrote “I am very distressed”, “I have based my extension request on mental health/disability/impairment” and “I have been too unwell to do so”. No response was provided to JVM by the RTI unit after this email, with no explanation provided except for Mr Simons being on leave for part of this period.^[77]
125. [125]
     JVM forwarded a further email on 27 October 2021 at around 4:30pm where she again requested an extension. It referred to an incidence of self-harm that occurred on the evening of 21 October 2021. This email attached the letter from her treating psychiatrist. Mr Pierce became aware of the email and requested a welfare check be arranged. I accept his evidence that he did this after receiving information from the Ethical Standards department and as he acted in this way due to genuine concerns for her safety and well-being.
126. [126]
     At around 4:34pm on 28 October 2021, having received no further correspondence from the RTI unit, JVM forwarded an email that stated, “I request an Internal Review of the Decision dated 30 September 2021”.
127. [127]
     Although JVM has included the welfare check as causing her emotional distress, I do not consider that this was unreasonable at the time. It was entirely appropriate for Mr Pierce to make this request. However, it was seemingly done without consideration for whether it was also appropriate to provide JVM with an extension of time as per her continued request.
128. [128]
     The consequence of failing to comply with the term for JVM was the loss of her right to internally review the matter. The characteristic of JVM’s impairment was a need for more time to do things. The bases for refusing her request for an extension of time were how many documents were involved, how ‘simple’ the process was and that a ‘reasonable person’ test was erroneously applied. As a result, JVM experienced distress to the extent that she self-harmed.
129. [129]
     For the reasons outlined, the respondents have not discharged the onus of establishing that the term that JVM strictly comply with a time limit is a reasonable requirement. The respondent has failed to demonstrate the reasonableness of the term requiring JVM to strictly comply with a time limit, including the cost of alternative terms such as granting her additional time, and the financial circumstances of imposing the term. I determine that the respondents have indirectly discriminated against JVM in the exercise of the power given to them pursuant to either s 82(c) of the RTI Act or s 96(c) of the IP Act.

Exemption

130. [130]
     The respondents, who bear the burden of proof on the balance of probabilities, have not provided any submission that any exemption applies.

Human Rights

131. [131]
     JVM alleges the discrimination also amounted to breach of her right to recognition and equality before the law^[78] and her right to freedom of expression.^[79] Section 13 of the Human Rights Act 2019 (Qld) (‘HRA’) allows for human rights to be limited in circumstances where it is reasonable and justified.
132. [132]
     The Brisbane City Council is a public entity. Section 58 of the HRA makes it unlawful to make a decision that is not compatible with human rights or, in making a decision, failing to give proper consideration to a human right relevant to the decision.
133. [133]
     It is the respondents’ position that JVM has not detailed her claim with respect to the breaches of her human rights. JVM states that the breaches are evident by the detriment she has experienced. She was directed by the Tribunal on 5 June 2023 to provide the conduct of the council that she says is unlawful.
134. [134]
     She stated:

I have a right to recognition and equality before the law, as well as Right to freedom of expression. I believe these have not happened with the Respondents. I also believe that the Respondent’s actions against me, which led to significant detriment (as I have raised in this complaint), are evidence of my human right being contravened. I have a right to seek and receive information, and in particular this includes a right at access government-held information. Brisbane City Council cannot discriminate against me, and all laws and policies should be applied equally, and should not have a discriminatory effect. I was not recognised as a disabled/impaired application/person in the relevant privacy matters, and I believe things were made (more) unreasonable/difficult (causing me significant distress, including Self-harming) as a way to stop me accessing my information with BCC, and also in distressing me to the point I struggled to lodge the IR request. With respect, I believe these actions were deliberate despite the discrimination and human rights legislation being in place.^[80]

135. [135]
     In her response, she further states:

.. My understanding is that – I have a right to recognition as a person before the law. I have the right to enjoy my human rights without discrimination. Every person is equal before the law and is entitled to the equal protection of the law without discrimination. I have the right to equal and effective protection against discrimination and measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Prior to August 2021, the Respondents applied discretion to me, as a Disabled person (with Impairments) by allowing me to apply for access to my information via emailed correspondence. This is a fact..

.. I have a right to access information held with Council accessing Government services). I had been doing this via Privacy processes for some time prior to August 2021. I had never applied for access to information via a prescribed form, and had sent email correspondence (due to my Impairments). I believe that when the Respondents placed a Requirement/Directive to ALL Applicants to accept applications only via the online form in the future, without any evidence of consideration of Human Rights (or the Anti-discrimination legislation), including me, then this was both UNLAWFUL and UNREASONABLE ..

.. As a Privacy Applicant with Council, via the RTI Unit and access applications, I believe that my right to freedom of expression was breached because the Council enforced an unreasonable Requirement on which cause hardship, difficulty, pain and distress, and placed me to respond under duress.^[81]

136. [136]
     I agree with the respondent’s submission that JVM has failed to detail the conduct of the council that is allegedly unlawful and how it failed to act in a way that was not compatible with human rights or failed to consider a human right relevant to the decision. There is no evidence before the Tribunal that supports a contention that the RTI Unit had allowed JVM to make applications by email prior to August 2021 as human rights consideration. I accept the respondents' position, which is that a policy change took place around that time for several reasons, requiring applications to be submitted using the approved form.
137. [137]
     JVM has not detailed what information she says she has not received and the connection to how that has limited her freedom of expression. She has not detailed how her human rights were limited, save for what has already been determined in relation to claims of indirect discrimination that have been dealt with above for the first complaint and second complaint. Further, she has not nominated whether she is seeking a relief or remedy under section 59 of the Human Rights Act 2019 (Qld).
138. [138]
     I have already determined that there was indirect discrimination in respect of the second complaint. Section 59(4) of the HRA states that the Act ‘does not affect a right a person has, other than under this Act, to seek any relief or remedy’. Specifically, an award of damages cannot be made on the ground of unlawfulness arising under section 58.^[82]
139. [139]
     In respect of JVM’s right to recognition and equality before the law, as far as it pertains to the first complaint, I find that the limitation on her human rights was reasonable and justified in accordance with section 24(2)(a) of the RTI Act and that this decision was made for all applicants to apply using an approved form.
140. [140]
     In respect of the second complaint, the respondents were required to consider JVM’s right to equality before the law in their refusal to extend the time period. The statements by the respondent do not contain any human rights consideration in making this decision. I accept on the balance of probabilities that JVM’s human rights were not considered when this decision was made.
141. [141]
     Since October 2021, the RTI unit has acted on the information provided to them about JVM’s impairments. JVM is granted extensions of time when requested and she continues to make her applications by email. This process is consistent with the objects of the HRA.^[83]

Remedy 

142. [142]
     JVM seeks the following relief in respect of her anti-discrimination claim:

     1. A written apology from the respondents;
     2. Compensation;
     3. Training of the RTI unit employees;
     4. Publication of the policies of the first respondent on their website about privacy applications and forms.
143. [143]
     The Tribunal may make orders if a complaint has been proven pursuant to section 209(1) of the ADA. As has already been noted, since October 2021, the RTI unit has allowed JVM an extension of time when requested. For that reason, I do not propose to make orders as per (c) above. It is unclear how the relief remedy of publication of the policies is covered by the remedies available to the Tribunal and I do not intend to do so.
144. [144]
     The respondents have maintained a position that was contrary to the ADA and resulted in JVM bringing proceedings. These proceedings have taken time to reach a resolution. In the circumstances, I order a private written apology be given by the respondents. For completeness, this is appropriately provided by a representative of the Brisbane City Council and can be on behalf of all respondents.
145. [145]
     In respect of compensation, the onus lies on JVM to prove her entitlement to a remedy by way of compensation. She is seeking $8,847.60 for treatment costs, past and future. JVM has provided evidence of how this amount was calculated and includes $4,987.60 for psychiatric sessions, $1,800 for counselling and $2,060 for general medical appointments. I consider this amount to be reasonable as JVM has required additional treatments and consultations than she would otherwise have required.
146. [146]
     JVM requests a miscellaneous amount in the sum of $500 to $1,000 to cover printing, stationary, and filing. I do not accept that JVM has established an entitlement for the miscellaneous amount.
147. [147]
     JVM requests $5,000 for compensation for her experiencing significant pain and suffering that includes mentally and physically. The Tribunal has no capacity to award exemplary damages.^[84] I accept the assessment of damages by JVM as $5,000 in the circumstances is appropriate and I will make that order.
148. [148]
     The employer is vicariously liable for the actions of its worker unless the employer established a defence.^[85] The amount of damages is made payable by the first respondent only.

Orders

1. The respondents provide a private written apology to JVM.

2. The first respondent; Brisbane City Council is ordered to pay to JVM, within 28 days of the date of these orders, the amount of $13,847.60 as compensation for the loss or damage caused by contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).