GK v Dovedeen Pty Ltd
[2012] QCATA 128
•31 July 2012
| CITATION: | GK v Dovedeen Pty Ltd and Anor [2012] QCATA 128 |
| PARTIES: | GK |
| v | |
| Dovedeen Pty Ltd Joan Hartley |
| APPLICATION NUMBER: | APL416-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 16 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | PJ Roney SC, Presiding Member Dr B Cullen, Member |
| DELIVERED ON: | 31 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That to the extent that any leave to appeal be necessary, such leave is granted; 2. That the appeal against the order dismissing the Application be allowed; 3. That in lieu of the previous order, that a finding be recorded in accordance with these reasons, namely that the Respondents’ conduct on 29 June 2010 was in contravention of sections 82 and 83 of the Anti-Discrimination Act 1991; 4. That the matter be remitted to the Tribunal for further hearing as to what relief, including any compensation or orders for apology ought be made; 5. That publication of any information which may lead to identification of the Appellant is prohibited. |
| CATCHWORDS: | Discrimination on the basis of lawful sexual activity – refusal of motel accommodation to a person providing prostitution services – legal sex worker – character of the protected attribute of a person engaging in lawful sexual activity – history of prostitution reform in Queensland Words and phrases – “status as a lawfully employed sex worker” – meaning of expression to “conduct or permit to be conducted on the licensed premises, a business” Whether provisions of the Anti-Discrimination Act impliedly repealed by the Liquor Act 1992, section 152 Anti-Discrimination Act 1991, ss 9, 10, 82. 83, 106 Discrimination Law Amendment Act 2002 Goodwin v Phillips (1908) 7 CLR 1 |
APPEARANCES and REPRESENTATION (if any):
| APPELLANT: | GK represented by Mr R Reed of Counsel, instructed by Robert Downey Solicitors |
| RESPONDENT: | Dovedeen Pty Ltd and Ms Joan Hartley represented by Mr Edwards of Counsel, directly briefed |
REASONS FOR DECISION
PRESIDING MEMBER PJ RONEY SC
Background
GK, the Appellant in this appeal, the original complainant, is a self-employed sex worker. She has complained that she has been discriminated against on the basis of “lawful sexual activity” in the area of accommodation. In June of 2010, GK availed herself of the accommodation facilities at a motel known as The Drover’s Rest, in Moranbah in Central Queensland, for the purposes of having a venue from which to offer her services. Moranbah is a township in close proximity to a number of significant mining operations, particularly coal mining operations in the Bowen Basin.
The corporate respondent, Dovedeen Pty Ltd, is the holder of a liquor licence at the Drover’s Rest Hotel. The Second Respondent, Mrs Hartley, is the wife of Mr Hartley, the Director of the liquor licence holder.
When GK went to settle her account, she was informed by Mrs Hartley that she would not in the future be provided with accommodation at the motel because she had engaged in prostitution whilst staying there, and the motel did not want her to engage in prostitution during any future stay.
The Respondents’ decision to respond in this manner was motivated, at least in part, by a complaint made by another guest in the motel, about the fact that men had been coming and going from GK’s motel room whilst she was present. There was no suggestion that there was any basis for any other complaint about her conduct whilst making use of the room, apart from the very fact that it was being used to provide sexual services. In other words, there were no suggestions that GK’s use of that room had caused some kind of nuisance, had been disruptive to other guests, or had caused any noise or other associated difficulty. Indeed, the Tribunal Member who heard GK’s complaint below indicated acceptance of GK’s evidence she had carried on her business discreetly, and that there had been no obvious detrimental impact on the management of the motel. The learned Tribunal Member accepted that GK has suffered stress and anxiety as a result of her treatment by the respondents.
At the hearing of her complaint, GK was self represented. The Respondents were represented by Counsel who was acting on a brief received directly from the Respondents. Following a one-day hearing in which both oral and documentary evidence was received, the learned Tribunal Member ultimately concluded that GK’s complaints of discrimination in relation to “lawful sexual activity” in the area of, or in connection with the area of, accommodation as prohibited by sections 82 and 83 of the Anti-Discrimination Act1991 (“the AD Act”), were not made out.
After concluding that GK had not been the subject of any direct discrimination in the area of accommodation, the learned Tribunal Member went on to conclude that even if she were wrong in that regard, section 152 of the Liquor Act1992 permitted the liquor licensee, as the operator of the motel to take steps to ensure that “a business” was not conducted from the motel, other than for the provision of accommodation, without infringing section 81 of the AD Act.
Section 81 is an explanatory provision to the Division 8 provisions of the AD Act which concern themselves with prohibitions upon discrimination in accommodation, and which provide that a person must not discriminate in the accommodation area if one of the specific prohibitions applies. It is not immediately obvious from the Tribunal Member’s reasons how the operation of section 152 of the Liquor Act1992 and section 81 of the AD Act can stand together in the sense mentioned in the reasons, particularly when the member appears to have concluded that, as she put it, the relevant sections in Division 8 had been “impliedly repealed by section 152 of the Liquor Act 1992”.
It would appear from her reasons that her reference to the expression “impliedly repealed” was intended to refer to the practice recognised in the authorities[1] that where provisions of differing statutes are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to the extent necessary the provisions of the earlier Act are excepted or their operation is excluded with respect to cases falling within the compass of the provisions in the later Act.[2]
[1] For example, Goodwin v Phillips (1908) 7 CLR 1 at 7.
[2] See also Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555.
The learned Tribunal Member concluded that the effect of sections 82 and 83 of the Anti-Discrimination Act 1991 was that
“if it is direct discrimination not to provide a room to a person with the status of lawfully employed sex worker for the purposes of prostitution, a licensee and motel owner can never comply with the Liquor Act which prohibits the licensee permitting the conduct of the business from the rooms. That is a direct inconsistency such that the two Acts cannot be reconciled. On this basis I find that section 152 of the Liquor Act 1992 impliedly repeals the unlawful discrimination provisions at section 82 and 85 of the Anti-Discrimination Act 1991 to the extent to which section 152 requires the licensee to refuse to allow a room to be used to carry on the business of a prostitute.”
Lawful sexual activity and the protections of it under the AD Act
In the learned Tribunal Member’s reasons, she also dealt with a number of other issues, but which she said she did not decide. The first of those[3] (which the learned Tribunal Member decided that she did not need to determine) concerned whether on the evidence here, there was any basis for a contention that the Appellant had suffered direct discrimination in consequence of what the learned Member concluded amounted to:
a)an expression of intention by the Respondent that the provision of accommodation to her would not be renewed in the future;
b)treating her unfavourably in connection with accommodation by refusing to allow her a room in the future; and
c)variation of the terms on which the accommodation was supplied to her insofar as it was sought to charging an additional sum for cleaning, beyond the usual charge, without informing her of the intention of making that charge. As to this charge, since it had been reversed, that conduct was not sought to found a basis for compensation.
[3] Reasons paragraphs 62 to 70.
In that regard, the issue was, as articulated by the learned Tribunal Member, whether on her interpretation of the expression “attribute” (as “attribute appears in section 7 of the Act), the prohibition upon discriminatory conduct on the basis of “lawful sexual activity”, included protecting the “lawful sexual activity” from discrimination.
The learned Member expressed the view, although she said she did not ultimately make a concluded finding on the issue, that on “one interpretation” of the prohibitions in section 7 of the Act, lawful sexual activity was not protected from discrimination. As she articulated the view, this was because when one looked to the definition of the expression “lawful sexual activity” where it appears in section 7 of the Act, by reference to the dictionary which was in the schedule to the Act, since the expression “lawful sexual activity” was defined to mean “a person’s status as a lawfully employed sex worker, whether or not self employed” (emphasis added), only status was given protection. The argument so articulated was that there was something of a distinction between the notion of discrimination on the basis of a person who carried on lawful sexual activity and one who had the “status” of a “lawfully employed sex worker”. The learned Tribunal Member sought to draw some distinction taken from the Macquarie Dictionary definition of the word “status” to characterise it as referring to social standing or position, rather than engagement in particular activity. Hence the argument went, if the unfavourable treatment here occurred on the basis that she carried on the activity of prostitution, then it was not attributable to her having the “status” of a lawfully employed sex worker. Therefore, the argument ran, since the Respondents expressed themselves as having no personal objection to the Appellant herself, or to lawful sex work in general, but objected to such work being carried on in their own motel, then the Appellant was not being discriminated against on the basis of her status, which was the discriminator for the purposes of deciding whether she had the relevant attribute.
The problem that flows from this approach is that despite saying that she did not decide the point, the learned Tribunal Member adopted that conclusion as the basis for her analysis of what characteristics an appropriate comparator would have.
The dictionary definition referenced by the Tribunal Member to characterise the definition of “status” as carrying some notion of social standing or position was, unfortunately a selective reference. The Macquarie Dictionary definition of “status” does include a definition which references notions of position or social standing, but also includes as one of its meanings: “the state or condition of affairs”. In other words, according to that meaning, a person has the status of a lawfully employed sex worker, if that person is in fact a person who engages in the work of a lawfully employed sex worker, whether or not they have any recognisable social status as such. It is scarcely imaginable that the Legislature intended, when prohibiting discrimination on the basis of “attributes” and to prohibit discrimination of persons with such attributes less favourably than one without them, to limit the protection provided for the circumstances where the discrimination is on the basis that the person had some or other social standing as a sex worker. Indeed it is difficult to imagine how, in a given case, it could be determined whether a person was being treated less favourably because they had some such social status because, although at some level of abstraction it might be possible to contemplate a person being treated less favourably because of their social status it is difficult how one could identify what the extent of that attribute was. For example, one sex worker might actually have a high social standing, but another may have a low social standing. Much would depend upon whether that person was known to be a sex worker. Or, alternatively, it may be that their social status was one based upon ignorance of their involvement as a sex worker. Whilst notions of social standing and reputation have an acknowledged place in the law of defamation, no part of the policy background behind the AD Act is concerned with activity which amounts to discrimination against a person on the basis of the existence of, or absence of any particular social standing, whether real or apparent, they may have. Indeed all of the categories of attributes in respect of which discrimination is prohibited in this legislation are directed to physical characteristics such as sex, pregnancy or race, or beliefs or activities, such as holding religious or political belief, gender identity or family responsibilities. In my view, therefore, the reference to the attribute of lawful sexual activity means, or at least includes the fact that the relevant person is employed as a sex worker and is lawfully so employed and either has carried on or carries on such activity at the time when the relevant conduct occurred.
Much time was spent in argument on the Appeal concerning this issue, notwithstanding that it was said not to found a basis for the conclusions of the Member below because it was said that it did not need to be decided because the claim could not succeed for other reasons. In the circumstances, this was understandable given the tentative conclusion reached by the Member did found the basis for her consideration of whether the Appellant was treated less favourably than another person without the relevant attribute.
As to the suggestion by the Tribunal Member that section 7 of the Act did not provide protection from discrimination for lawful sexual activity, it is appropriate that this matter be considered and properly determined.
The AD Act was passed through the Parliament in 1991 and received Royal Assent in December 1991. The preamble to the Act mentions specifically that Parliament’s reasons for enacting the Act were, inter alia that the international community had long recognised the need “to protect and preserve the principles of dignity and equality for everyone” (emphasis added). Implicit in its operation, is the evident purpose of the Act to ensure that at least those had particular attributes which were thought worthy of protection would be treated equally, or on an equal footing to others in the community who did not hold those attributes, or who might be treated discriminatory on the basis of the fact that they did have, or perceived to have those attributes. The notion, in its elegant simplicity, is enshrined in section 10 of the AD Act, which provides as follows:
“10 Meaning of direct discrimination
(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Example—
R refuses to rent a flat to C because—
C is English and R doesn't like English people
C's friend, B, is English and R doesn't like English people
R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person's motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.”
Contrary to assertions made both in the submission for the Respondents, and in the reasons for the Tribunal Member, whilst one of the Legislature’s stated purposes for enacting this legislation was to “preserve dignity”, the Act is not generally concerned with outlawing any acts which might infringe upon the dignity of individuals generally. It is only concerned in this context with preservation of dignity “and equality” for persons whom the legislature thought possessed attributes it considered required protection.
There is a statement in the learned Tribunal Member’s reasons that “the purpose of providing protection from discrimination to a person having the status of lawfully employed sex worker... is not to ensure that she is able to conduct her business, but to protect her personal dignity”. That conclusion formed part of the reasoning which led the Member, erroneously in our view, to the conclusion that in determining whether the Appellant had been the subject of unlawful discrimination, what was required was to consider whether, in the context of her seeking accommodation “for her own rest and shelter” that is without an intention to engage in prostitution, she should be treated “no less favourably in being provided a room than any person who not a lawfully employed sex worker”.
With respect, the relevant legislation is clear that in the context of the provision of accommodation such as the supply of a motel room, it is offensive both to the philosophy of this Act, and contrary to its express terms that a person with a particular attribute be treated “less favourably” than another person without the attribute is or would be treated in circumstances that are the same are not materially different.[4] In other words, to interpret these provisions as protecting a person’s personal dignity in circumstances in which they were treated differently from another person who is not a sex worker in circumstances in which she was not in fact engaged in lawful sexual activity but might at another time have done so is to rob this legislation of its evident intent. It is wrong to suggest that these provisions have such limited operation as to mean that the only kind of discrimination which is prohibited is not the treatment of a person less favourably because he or she carries on lawful sexual activity on those particular premises, but only if they are treated less favourably, in circumstances in which they are not carrying out that activity but have a status, or reputation or character of being a sex worker which the discriminator determines is such as to justify different treatment of that person.
[4] This is the language in section 10 of the AD Act.
The history of the protection from discrimination of lawful sexual activity
The AD Act 1991 was given Royal Assent on 9 December 1991, Act 85 1991. As enacted, section 7 then prohibited discrimination on a more limited category of attributes than is now referenced in section 7, and made no reference specifically to either “gender identity”, “sexuality”, or “family responsibilities”. The Act at that time contained no definition of lawful sexual activity which specifically referenced a person’s status as a lawfully employed sex worker.
Section 7 prohibits discrimination on the basis of “lawful sexual activity”; it does not prohibit discrimination solely on the basis that a person’s “social status” is such that they are sex workers.
The concept that the expression “lawful sexual activity” was to be referable only to lawfully employed sex workers and not sexual activity generally was first introduced by the Discrimination Law Amendment Act2002 (No 74 of 2002), clause 12(1). The amendment received assent on 13 December 2002 and commenced 1 April 2003. That amendment also introduced the dictionary definition which referenced the notion of status as a lawful sex worker.
In the Explanatory Notes to the Discrimination Law Amendment Bill 2002 there was provided;
“Clause 11 provides that this Part amends the Anti-Discrimination Act 1991. Clause 12 Amends section 4 by inserting a range of new definitions. These include “family responsibilities”, “lawful sexual activity”, “religious activity”, “religious belief”, “sexuality”, and “gender identity” which relate to attributes listed in section 7. The clause also defines “de facto partner” and “immediate family” by reference to new sections 4B and 4C respectively. These definitions are incorporated into the general definition of “family responsibilities”. Clause 16 amends section 28 to provide that the exemption applies to both the new attributes of “gender identity” and “lawful sexual activity” (which is now specifically defined to mean a person’s status as a lawful sex worker). As a result the exemption will no longer apply to a range of activity currently caught by “lawful sexual activity”, for example homosexual activity”.
In the Second Reading Speech on 6 November 2002 the Minister said:
“The bill prohibits discrimination on the basis of a number of new attributes, namely, 'family responsibilities', 'sexuality' and 'gender identity'. While these will not greatly widen the scope of the Act, they will fill important gaps in the existing framework of protection. The ground of 'sexuality' will cover 'heterosexuality, homosexuality and bisexuality'. In particular, it will provide much clearer protection for the gay and lesbian community, which has previously had to rely on the attribute of 'lawful sexual activity' to make a complaint or seek a mediated resolution of an ill-founded conflict or unfair treatment. This has been unsatisfactory because it has been interpreted to mean that a person has to demonstrate actual activity to gain protection such that, for example, it would be lawful to discriminate against a celibate homosexual. The attribute of 'lawful sexual activity' will remain but will be defined to mean a person's status as a lawfully employed sex worker”. (4445)
What may be seen from this is that Parliament was not fundamentally changing the scope of operation of the Act to extend it to lawful sexual behaviour, such as that engaged in by legal sex workers, nor limiting that protection to circumstances where status was concerned, but creating new and separate protections for sexual activity for other categories of persons.
The prohibition on discrimination on the basis of lawful sexual activity appeared in the original 1991 AD Act. Historically,[5] the process by which provision of sexual services by sole operators or sole workers operating from their home stems from the consequences of the Fitzgerald Inquiry which was held from the period 1987 to 1989. One of the recommendations of that Inquiry was the establishment of the Criminal Justice Commission, and the Criminal Justice Commission (“CJC”), once established undertook a review of prostitution laws to consider the merit of decriminalising prostitution. In its report delivered in 1991, the same year as the AD Act was first enacted, the CJC recommended that sole sex workers operating from their homes should remain lawful, but that brothels limited operation should also become lawful, subject to a licensing regime.
[5]Prostitution Licencing Authority Annual Report 2001 Andreas Schloenhardt & Lachlan Cameron, ‘Happy Birthday Brothels! Ten Years of Prostitution Regulation in Queensland’ (2009) 29 Queensland Lawyer (Thomson Reuters) Selling sex in Queensland , Report of the Prostitution Licencing Authority 2003 >
The Government’s response to that legislation was the introduction of the Prostitution Laws Amendment Act1992. Pursuant to that legislation, sole operators who were sex workers acted lawfully in providing prostitution services. But, the legislation was designed to prohibit the facilitation or controlling of prostitution with a view to limiting organised criminal activity in the sex industry. That position remained the law until the enactment of the Prostitution Act1999. The Prostitution Act 1999 was given Royal Assent on 14 December 1999 and came into effect on 1 July 2000. The 1992 Act did not introduce a regulatory regime for prostitution, however the 1999 Act did. One of the material consequences of the 1999 Act was to establish the Prostitution Licensing Authority which did then, and continues to issue, brothel licenses and certificates to approved brothel managers. Otherwise Part 4 of the Criminal Code deals with the circumstances in which engaging in prostitution, as it is defined, is unlawful. Read together, it may be seen that individual sex workers, such as the Appellant here are not prevented from conducting their businesses under the Prostitution Act 1999. There are, however, restrictions placed on sole operators so that for example, a single sex worker may not be found on premises with any other person or sex worker unless that person has a crowd controller’s licence and is participating in the provision of prostitution as a bodyguard. The law relating to prostitution by sole operators is contained in the Criminal Code and insofar as the Code provisions are concerned, the scope of these offences is such that it leads presently only two forms of prostitution legal in Queensland; prostitution offered by sole operators (which remains largely unregulated) and prostitution offered in licensed brothels, (which is regulated in the Prostitution Act1999).
What may be derived from this analysis is that at or about the time that section 7 of the Anti-Discrimination Act1991 came to prohibit discrimination on the basis of lawful sexual activity, as the law then stood, and it has remained ever since, an employed sex worker, whether or not self-employed and certainly one who is a sole operator or individual sex worker who is not working in a brothel was concerned, in providing prostitution services was acting lawfully, and engaged in lawful sexual activity within the meaning of section 7 of the AD Act.
Queensland is not the only state in which there is a prohibition on the basis of the attribute of lawful sexual activity. For example, section 6 of the Victorian Equal Opportunity Act 2010 provides for protection in such an area of activity. A point of distinction with the Victorian legislation is that it authorises a person to refuse to provide accommodation to another if the other intends to use the accommodation for, or in connection with a lawful sexual activity on a commercial basis. No such exception is provided under the Queensland AD Act.[6]
[6]Equal Opportunity Act2010 (Vic), s 7-9. Anti-Discrimination Act1998 (Tas), ss , , -.
Neither Counsel had been able to refer us to any Australian or other authority which had dealt with these issues. The Victorian Civil and Administrative Tribunal considered some of these issues in Cassidy v Leader Associated Newspapers Pty Ltd.[7] There, Deputy President McKenzie considered the issue of whether the complainant, who was associated with a licensed brothel, had been discriminated against by a newspaper in its charging for advertising on the basis of his personal association with a person identified by reference to lawful sexual activity. The allegation was that the newspaper had been charging him a higher rate than it charged other advertisers for advertisements placed in its various newspapers in the adult services section. On the facts present in Cassidy, the claim was dismissed, because there was nothing in the evidence that suggested that Mr Cassidy's personal association with the prostitutes working at the Candy Club had anything to do with the imposition of the 100 per cent loading. The loading would have been the same whoever placed the advertisement.
[7] [2002] VCAT 1656.
In the course of her reasons, the Deputy President said:
[77] Leader next submits that Mr Cassidy does not have the attribute of personal association as defined in s.6(m) of the Equal Opportunity Act. It does so for two reasons. First it says that no person with a lawful sexual activity has been identified with whom Mr Cassidy has a personal association. I do not agree.
[78] Although no prostitute who worked at the Candy Club gave evidence at this hearing, Mr Cassidy gave evidence of the names of many of them, the periods for which rooms were rented by them for use by them and their clients, the fees charged and the sexual services to which those fees related.
[79] The brothel was a licensed brothel under the PCA and its licence and the PCA and the PCR regulate the kinds of sexual activities that might occur in those premises. In these circumstances I am not prepared to say that the association with the prostitutes who worked at the Candy Club was not an association with persons identified by reference of their lawful sexual activity. I am not prepared, as Leader asked me to do, to infer anything from the failure of the prostitutes to give evidence.
[80] The second argument that Leader makes in relation to this matter is that the kind of association that Mr Cassidy had with the prostitutes working at the Candy Club is incapable of constituting personal association for the purposes of s.6(m) of the Equal Opportunity Act. Because it is a professional or workplace related association and not a social, private or personal one. Again I do not agree.
[81]It is clear from the wording of s.6(m) that it is not confined to family relationships. Clearly it is wide enough to include an association between friends, a carer and the person cared for or a helper and the person helped. "Association" in the Macquarie Dictionary has a very broad meaning and can include companionship or intimacy or connection or combination.
[82] In my view the term "personal association", however, is not intended to cover official or contractual relationships such as those between the manager of a workplace and the persons working there, at least where no more is done than carry out the roles and responsibilities of the parties in that particular relationship.
[83] There must be something more than this to make a personal association between two people. The fact that as a business operator concerned with the welfare of those who work in the Candy Club business, Mr Cassidy arranged certain matters such as medical examinations for those who worked at the Candy Club, does not necessarily mean that he and those prostitutes have a personal association. It may be often difficult to determine at what point a workplace relationship becomes a personal association.
[84] On the evidence before me I am satisfied that Mr Cassidy had a personal involvement in the lives of the prostitutes who worked at the Candy Club. Although he did not visit their homes, it went beyond the relationship of workplace manager and worker. I am satisfied that he had a personal association with these prostitutes for the purposes of s.6(m) of the Equal Opportunity Act.
There is other authority on the topic of discrimination in the context of lawful conduct of a sex worker also to be found,[8] but none of it assists in determining the issues in this Appeal.
[8]Packer v RL & SJ Vagg Pty Ltd t/a Lismore Supermarket; Packer v State of Victoria (Department of Employment, Education and Training) (2002) EOC 93-192; Edgley v Federal Capital Press of Australia Pty Ltd (2001) EOC 93-142; Behan v Stephenson [2004] QADT 7 (31 March 2004); Millen v Reynolds[2004] QADT 33 (25 October 2004); M v A & U [2007] QADT 8.
The appropriate comparator
The learned Tribunal Member correctly acknowledged that the Act required a consideration of whether or not the Appellant was treated less favourably than another person without the attribute in circumstances which were the same or not materially different. She concluded, after having regard to some case law authority, and in particular the decision of the High Court in Purvis v State of New South Wales (Department of Education and Training)[9] that by analogy with the approach taken in Purvis, the appropriate comparator here was “a person without GK’s attribute as a lawfully employed sex worker, but with the same desire to obtain a room for the purpose of prostitution... The comparator is not merely a person who is not a lawfully employed sex worker, who seeks a room at the motel”. It is not immediately obvious how there could be a distinction to be drawn between the attribute held by a person who went to a motel to obtain a room “for the purpose of prostitution” and one who is a person who is a lawfully employed sex worker, unless the distinction was directed to the question of whether it was lawful behaviour or not. But that is not the distinction the learned Tribunal Member made. She concluded that on the basis that the motel operators held an objection to prostitution generally being conducted at their motel, “any person wishing to engage in prostitution would be denied accommodation” and that therefore the Appellant was “not treated less favourably than another person, who is not a lawfully employed sex worker, in circumstances where that person seeks a room for the purpose of engaging in prostitution”.She therefore concluded that the Appellant had not been the subject of direct discrimination because there was no evidence that “another sex worker who had used a room for prostitution would not be charged a higher rate to cover cleaning”. She also appears to have adopted this analysis to have concluded that she was not directly discriminated in having been refused a room at all.
[9](2003) 217 CLR 92.
In large part, the learned Tribunal Member misdirected herself by reference to the approach of the High Court in Purvis. In Purvis, there was a difficulty presented in identifying of the basis for the decision in question was. That is, whether the actual or intended treatment of a disabled person was connected with that person’s disability, or connected with some other aspect of his or her conduct. In Purvis, the applicant was a student who had alleged direct discrimination on the basis of an impairment, which had allegedly led to his expulsion from schooling. After conducting an analysis of the reasoning for the less favourable conduct, the Court in Purvis held that the less favourable treatment was because of the Applicant’s violent behaviour, albeit conduct caused by or related to his impairment. Five of the seven members of the Court in Purvis held that the relevant legislation, namely, the Disability Discrimination Act 1992, required a comparison of how the discriminator treated or would have treated a person without a disability in the actual circumstances of violent behaviour attending the relevant treatment of the disabled person. Because a student who demonstrated the same or similar violent behaviour as had a complainant would have been treated no less favourably than this person, it was then held that there was no direct discrimination pursuant to the terms of that Act. As it then stood (but was subsequently amended to provide to different effect), the direct discrimination provisions of the Disability Discrimination Act1992 did not contain a provision which was the equivalent to that contained in section 8 of the AD Act applicable here, which extends the notion of discrimination on the basis of an attribute to include discrimination on the basis of a characteristic that a person with any of the attributes generally has, or which is often imputed to a person with any of those attributes or an attribute that a person is presumed to have by the person discriminating.
In the end, the difficulties to which the Court in Purvis directed itself were not present here. It was common ground on the evidence before the Tribunal here that GK was a sole operating sex worker who had stayed as a guest of the motel over 2 nights in June 2010 and had engaged in legal sex work whilst at the motel. It was common ground that the Respondents discovered that she had been engaged in this activity, and that she was notified that she would no longer be permitted to stay at the hotel because she was a sex worker, and would not be provided with accommodation in the future because it was anticipated that she would provide such services if she stayed there. It was known that she had stayed at the motel on a number of occasions in previous years for the same purpose, and that the Respondents either knew or believed that she had engaged in sex work, despite perhaps having previously held an earlier belief that she was there for some other business or associated purpose. The appropriate comparator for the purposes of the analysis required in section 10 of the AD Act was a person who was seeking to make a booking or use the hotel accommodation for any lawful purpose, but not for prostitution, or lawful sexual activity within the meaning of section 7 of the Act. It is implicit in the Respondents’ conduct that had GK, or any other person sought accommodation for those purposes, they would have been seeking it without the relevant attribute and they would have provided that person with accommodation. Therefore, by the application of conventional reasoning, GK was the subject of direct discrimination, and to the extent that she suffered hurt, humiliation, stress, anxiety and/or economic loss, it was open to the Tribunal to determine that she ought receive consequential compensation.
In the Respondents’ submissions on this issue, the Respondents sought to sustain the learned Tribunal Member’s conclusions by suggesting that if the appropriate comparator were any other guest of the motel who was not a lawfully employed sex worker and who wished to engage in business transactions in a motel room, it would be to “unreasonably broaden” the range of comparators and would fail “to take into account all of the objective features which surround the actual or intended treatment of the person by the discriminator”. It was submitted that these features include the fact that the Respondents’ director had seen men go in and out of the room “all day”; that a young man had walked through the motel looking for GK’s room; and that GK herself had used a number of different motels in the township whilst there during that period, had been using the motel for legal sex work for nearly 2 years, and had earned some $2,000 per day whilst there.
In his oral submissions, the Respondents’ Counsel sought to deviate from this approach to suggest that the appropriate comparator was some other sex worker who did not engage in the particular conduct that GK did at the premises, although there was no direct evidence that any particular behaviour GK engaged in, other than the fact she was offering sexual services, was the basis for the decision. At one point in the course of his submissions, the Respondents’ Counsel contended that the appropriate test was to decide whether GK was treated less favourably than had other sex workers who had sought accommodation at the motel. In that regard it was suggested that if, as a matter of policy, the Respondents would have not provided accommodation to any of those sex workers, then GK was not treated less favourably than any other sex worker like her, because they were all treated equally. That, of course, is to entirely distort the language of section 10. Relevantly, the comparison is not with the way in which a person with the same attributes as GK had would be treated; the comparison is with a person without it. Were it otherwise, the AD Act would become a tool for discrimination because it would only prohibit conduct in which persons with the same protected attributes were treated differently from each other, as apposed to being treated equally with other members of the community who did not have those attributes.
At another point, the Respondents’ Counsel made the submission that in some way these provisions of the AD Act ought be construed as not preventing business people like motel operators from making business decisions, if it was thought that the basis for that decision was to protect their commercial interests. For example, the submission went on, if a motelier perceived that its trade might be negatively affected by the perception that its accommodation was being used for the purposes of prostitution, the operators might be entitled to refuse accommodation in those circumstances. Nothing in the Anti-Discrimination Act 1991 provides an exclusion from the operation of its provisions because it is perceived to suit the business interests of the discriminator. It is not difficult to understand why it does not do so, because it would provide a broad discretion for persons who might be inclined to discriminate against persons on any basis, including for example their race, on the basis that they perceived other clientele might look unfavourably upon them if persons of certain race were permitted to stay at those premises. This is the very mischief that the Act directed itself to in the first place.
Section 152 of the Liquor Act 1992
The learned member arrived at an alternative basis for rejecting GK’s claims of discrimination.
Section 152 of the Liquor Act1992 provides as follows:
152 Prohibition on other use of premises
(1) A licensee must not, without the chief executive's prior approval—
(a) conduct or permit to be conducted, or advertise or represent himself or herself as conducting, on the licensed premises, a business other than—
(i) that authorised by the licence; or
(ii) a business for which the licensee is a wagering agent under the Wagering Act 1998; or
(iii) a business under the authority of a gaming machine licence under the Wagering Act 1998; or
(b) supply or permit to be supplied, on the licensed premises, a service to the public other than that authorised by the licence.
Maximum penalty—25 penalty units.
(2) A licensee must not use or publish, or permit to be used or published, a document containing the name of the licensed premises for or in connection with a business or service to the public other than a business or service that may be conducted or supplied on the licensed premises consistently with subsection (1).
Maximum penalty—25 penalty units.
The learned Tribunal Member correctly identified that there was a general exemption under section 106 of the AD Act where the person who was doing the act did so to comply with an existing provision of another Act, in the sense that it was a provision which was in existence at the time of commencement of section 106. Since the provisions of the Liquor Act 1992 did not come into place prior to the commencement of the operation of section 106 of the AD Act, none of the Respondents’ conduct here could have been justified by anything in the Liquor Act 1992 by operation of section 106 of the AD Act. But, the learned Tribunal Member went further to conclude, in effect, that insofar as it applies to provision of accommodation to a person who is providing prostitution services, then the provisions of section 152 of the Liquor Act 1992 either impliedly repealed the operation of the prohibitions in sections 82 and 83 of the AD Act or they were excluded in their operation here because of inconsistency with section 152 of the Liquor Act 1992.
The learned Tribunal Member concluded that because the Appellant conceded that she was earning in excess of $2,000 per day and had up to 8 clients a day visiting her for the purposes of her services, she was “conducting a business” in the room she had taken at the Drover’s Rest Hotel. She rejected the submission that because GK also conducted her business elsewhere, both at Moranbah and elsewhere in Queensland, that it meant that she was not conducting a business on the relevant premises. The Member therefore concluded that the inconsistency between the relevant provisions, and in respect of which the Liquor Act 1992 prevailed was “that if it is direct discrimination not to provide a room to a person with the status of lawfully employed sex worker for the purpose of prostitution, a licensee and motel owner can never comply with the Liquor Act which prohibits the licensee permitting the conduct of a business from the rooms”.
It was not suggested that there can be any circumstance in which the letting of motel accommodation could be described as amounting to the conduct of a business by the licensee. The question then is whether simply letting such accommodation, even in the knowledge that the guest may be likely or indeed would supply sexual services for commercial gain in the room, amounts to the licensee “permitting a business to be conducted” on the premises other than that authorised by the licence. The learned Tribunal Member did not conduct an analysis of how in the letting of a room by a licensee could amount to commission of the offence of conducting a business other than that authorised by the license.
It may be readily seen that the provisions of the Liquor Act 1992 are concerned, inter alia, with regulating what businesses are carried on by licensees on licensed premises. They are not concerned with regulating the activities of guests who utilise licensed premises. The Liquor Act 1992 identifies in section 3 that its objects include regulating the liquor industry in a way compatible with minimising the harm caused by alcohol abuse and misuse. Section 3A of the Act identifies that in relation to the sale and supply of liquor, a person may obtain a licence to sell or supply liquor as part of conducting a business on the premises, and that liquor may only be sold or supplied as part of that business; that is the principal activity under the licence. Therefore, it may readily seen that this principal is directed to ensuring that licensees conduct their businesses, or cause them to be conducted (insofar as they stand behind any other activity on the site), in ways that are regulated and compatible with the business of the sale or supply of liquor.
It is an unremarkable and daily occurrence on licensed premises to be found across the length and breadth of Queensland, and probably the entirety of the Australian continent, that many guests who are travelling, are travelling for the purposes of conducting their business in the location where the licensed premises or motel is located. Many business people, from all walks of life in some way or another conduct business in and from licensed premises every day. Some licensed premises actually offer as an incentive to business travellers specific “business centres” upon the licensed premises. It may be readily inferred that the Legislature did not intend to impede the commonplace and ordinary lawful use of motel accommodation, whether with or without a liquor licence, by the enactment of section 152.
One submission put on behalf of the Respondents was that the mischief to which section 152 was directed was the conduct of business in circumstances in which there was access to alcohol. Nothing in the Liquor Act1992 identifies such a matter as a form of mischief to which the Act is directed. Nor would commonsense suggest that absent very clear words or following perhaps a reintroduction of “Prohibition”, the Legislature would concern itself with whether business people did or did not have access to liquor from licensed premises whilst conducting business of any kind. Were section 152(1) to be interpreted in the way in which the Respondent contended it ought be, it would mean that licensees would commit an offence, attracting penal consequences, for not preventing guests at their motel from conducting any business whilst on the premises. That would probably catch most licencees, on most days.
The evident focus of section 152 is upon the conduct of the licensee. In my view, a licensee cannot be said to be permitting the business of the supply of sexual services at its premises simply because it lets a room to a person that he knows or suspects may be likely to use those premises for the purposes of prostitution, or any other kind of business. A different position may prevail, for example, if the provision of the accommodation arose other than the usual course of business, or involved for some special solicitation by the motel operator that sex workers take up the relevant accommodation for that purpose. Or, if special levies were imposed that truly amounted to a participation in the business.
Moreover, the language of section 152 makes reference to the conduct of “a business”, other than that authorised by the licence. This mirrors the language of section 3A which also refers to one of the underlying principles as being that to supply liquor, a person may obtain a licence to sell it as part of conducting a business on the premises. In this context, it seems to us that there is a difference between the conduct of “a business”, and the mere conduct of business activity. For example, it would be difficult to imagine that one conducts a business at every location which any activity related to that business is discharged. Insofar as section 152 is directed at some mischief, it is to ensure that in the context of regulation of the activities licensees, only those businesses authorised by the licensing authority are conducted by that licensee, or permitted by the licensee to be conducted. In this context, it is impossible to imagine that the licensing authorities could be required to consider whether ordinary guests at a motel which is licensed might not be permitted to carry on activity in or concerned with their individual businesses without putting a licensee at risk of prosecution for contravention of section 152.
Apart from that issue, there remains the question of whether a licensee in any event engages in permitting a business to be conducted on the license premises by another person when that person is a guest in a motel and the guest is engaging in lawful conduct whilst there. There is some authority for the proposition that as a matter of English language conventions, and apart from any specific or arbitrary definitions, to permit something requires an authorisation by a person who has at least de facto control of the relevant activity; Broad v Parish.[10] At the very least, for example in the context of a licensee of licensed premises permitting particular activity such as permitting liquor to be drunk outside of licensed hours, what is required is more than a mere abstention from taking reasonable steps to prevent the activity. A person cannot “suffer” or “permit” an act unless he knows it is being done or is to be done. If he does not know, however, he may suffer or permit it by not exercising the power or authority he possesses to prevent it: Bond v Reynolds.[11]
[10] (1941) 64 CLR 588 at 594 per Rich ACJ.
[11][1960] VR 601 at 602. See also Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 and Broadhurst v Larkin [1954] VLR 541 at 544-545.
There is clearly a difference between a circumstance in which a licensee knows an activity is being carried on, but by a person over whom he has no lawful control, or who is not his servant or agent and a situation where, as this case, there is no specific authority granted to a licensee to prevent an individual guest from conducting his personal business whilst on the premises. We might add that there is no evidence in this case that in any way either of the Respondents was motivated by a perceived duty to prevent the conduct of a business by GK because of the provisions in section 152. There is no suggestion that they had ever interfered with or intervened in the conduct of any other business activity by any other guest apart from GK. In those circumstances, it does not seem to us that section 152 of the Liquor Act 1992 is inconsistent with any provision of the AD Act insofar as it concerns provision of accommodation to persons may or will carry on lawful sexual activity therein.
The Criminal Code provisions
One of the other matters touched upon, but not the subject of argument below, concerned whether there was some other possible basis for justifying the Respondents’ conduct on the basis that they did so to ensure that the Criminal Code was not infringed.[12] The learned Tribunal Member was not asked to reach any conclusion upon that issue, although the Respondents to this appeal, without filing any cross-appeal or notice of contentions, sought to argue that there might be some basis upon which the avoidance of criminal conduct might justify the relevant conduct here. Since the matter was not raised below, nor was any such motivation or state of mind behind the Respondents’ conduct in this case, it does not seem to us to require determination. That said, it strikes us as extremely unlikely that the provisions of the Criminal Code, which create offences associated with prostitution, and in particular chapter 22A, have anything to say about circumstances in which a motel operator offers accommodation to and accepts a sole operator sex worker who is acting lawfully, as a guest. In that regard, the Prostitution Licensing Authority has already obtained advice which it has published[13] to the effect that such conduct would not infringe the Criminal Code provisions nor those of the Prostitution Act 1999.
[12] See Reasons par 89.
[13]Legal advice re sole operator sex workers providing prostitution from motel rooms;
For the foregoing reasons, I find that the learned Tribunal Member erred in her analysis of whether the relevant circumstances constituted a contravention of either or both of sections 82 and 83 of the AD Act and in concluding that GK was not the subject of direct discrimination within the meaning of section 10 of the AD Act. On the uncontested facts present here, the relevant conduct did constitute direct discrimination of GK on the basis of lawful sexual activity. The matter will need to be remitted to a freshly comprised Tribunal for further hearing on the question of whether there ought to be any compensation awarded to GK as a consequence of this conduct, and if so, what the nature and quantum of that compensation should be.
I therefore order as follows:
a)to the extent that any leave to appeal is necessary, such leave is granted;
b)that the appeal against the order dismissing the Application be allowed;
c)that in lieu of the previous order, that a finding be recorded in accordance with these reasons, namely that the Respondents’ conduct on 29 June 2010 was in contravention of sections 82 and 83 of the AD Act 1991;
d)that the matter be remitted to a freshly comprised Tribunal for further hearing as to what relief, including any compensation or orders for apology, ought be made;
e)that publication of any information which may lead to identification of GK is prohibited.
Member Dr B Cullen
I have had the advantage of reading the draft reasons prepared by Mr Roney SC. I agree with them, and with the orders he proposes.
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