Etheridge Shire Council - [2023] QCAT 263

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Etheridge Shire Council [2023] QCAT 263

PARTIES:

Etheridge Shire Council

(Applicant)

APPLICATION NO:

ADL003-23

MATTER TYPE:

Anti-Discrimination matters

DELIVERED ON:

7 July 2023

HEARING DATES:

On the papers 20 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

Etheridge Shire Council is, for the purpose of establishing and operating an Independent Living Facility for persons over the age of 65 referred to in the material before the Tribunal, granted an exemption for a period of 5 years from the date of this order, from the operation of the following provisions of the Anti-Discrimination Act 1991 (“the AD Act”):

(a) Section 46 – in the goods and services area;

(b) Sections 77 – in the disposition of land area; and

(c) Sections 82 and 83 – in the accommodation area;

(d) Section 84 – in refusing to allow reasonable alterations.

(e) Section 7(f) – discrimination on the basis of age.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – SPECIAL MEASURES – where the Applicant seeks an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate an independent living facility for people 65 and older- reserved for the over 65s – whether grounds for exemption- whether they are special measures – where the Queensland Human Rights Commissioner opposes the application – whether the exemption should be granted

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – the rights to equality and to equal protection of the law without and against discrimination – the right to own property alone or in association with others and not be arbitrarily deprived of the person’s property – the right to peaceful assembly and freedom of association – where the tribunal is acting in an administrative capacity when deciding an application for exemption under the Anti-Discrimination Act 1991 (Qld) – whether the test to apply is now substantially in the Human Rights Act 2019 (Qld) – tests of justification and proportionality

Anti-Discrimination Act 1991 (Qld), s 7(f), s 45,
s 46, s 76, s 77, s 82, s 83, s 113
Retirement Villages Act 1999 (Qld)
Charter of Human Rights and Responsibilities Act 2016
(Vic), s 7
Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 48, s 58
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 127

ABC Business Australia Pty Ltd [2013] QCAT 719

Body Corporate for Village Green (Caloundra) [2015] QCAT 101

Burleigh Town Village Pty Ltd [2017] QCAT 161

Burleigh Town Village Pty Ltd Rental Management Services Pty Ltd [2011] QCAT 646
Burleigh Town Village (3) [2022] QCAT 285

Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328; 33 VR 139
Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164
Ghostgum Developments Pty Ltd [2015] QCAT 500
Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869
Matsoukatidou v Yarra Ranges Council [2017] VSC 61
Miami Recreational Facilities Pty Ltd [2021] QCAT 378
Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238
PJB…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 263
Decision Date

CaseChat Overview and Summary

This case involves an application filed by Etheridge Shire Council seeking an exemption from the operation of specific provisions of the Anti-Discrimination Act 1991 (Qld) to establish an Independent Living Facility for persons over the age of 65 in Georgetown. The application was opposed by the Queensland Human Rights Commission (QHRC). The key legal issues before the court were whether the exemption was necessary, appropriate, and in the community interest, and whether the exemption would engage human rights and be compatible with those rights.

The court found that the exemption was necessary to achieve the purpose of providing affordable accommodation for elderly residents in the Shire, as there was no other reasonable means of achieving the same result. The court considered the application of the Human Rights Act 2019 (Qld) and found that the exemption would limit the right to equality and protection against discrimination, but this was a proportionate limitation to achieve the legitimate purpose of providing affordable accommodation for elderly residents in the Shire. The court also found that the exemption would limit the property rights of potential residents to assign their leases, but this was a legitimate and proportionate limitation on those rights.

Accordingly, the court granted Etheridge Shire Council a 5-year exemption from the operation of the relevant provisions of the Anti-Discrimination Act 1991 (Qld) to establish and operate the Independent Living Facility in Georgetown for persons over the age of 65.

Orders