Miami Recreational Facilities Pty Ltd - [2021] QCAT 378

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Miami Recreational Facilities Pty Ltd [2021] QCAT 378

PARTIES: MIAMI RECREATIONAL FACILITIES PTY LTD

(applicant)

APPLICATION NO/S:

ADL036-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

3 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Miami Recreational Facilities Pty Ltd and the Bodies Corporate comprising Miami Retirement Village and their workers or agents are exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in so far as those sections apply to any act or omission at or in respect of the Miami Retirement Village Residential Complex which is discrimination on the basis of the attribute of age.

2. Miami Recreational Facilities Pty Ltd and the Bodies Corporate comprising Miami Retirement Village and their workers or agents are also exempt from the operation of section 127 of the Anti-Discrimination Act 1991 (Qld) in so far as any advertisement indicates that a person intends to act in a way covered by paragraph 1 of this order.

3. The Miami Retirement Village Residential Complex referred to in the above order is situated on land comprised in seven plans being GTP428, GTP530, GTP531, BUP3994, BUP 4093, BUP4130 and BUP 4291 and includes the land owned by Miami Retirement Village described as Lot 1 RP 177047.

4. The exemption shall apply from 27 July 2020 to 26 July 2025.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the applicant seeks a renewal of an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate a residential village reserved for the over 50s – where the Queensland Human Rights Commissioner opposes the application – whether the exemption should be granted – whether the tribunal can renew an exemption retrospectively

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – 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)

Anti-Discrimination Act 1991 (Qld), s 82, s 83, s 113, s 127, s 174C

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
Property Law Act 1974 (Qld), s 121
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 127

Retirement Villages Act 1999 (Qld), s 26

Exemption application re: Miami Recreational Facilities Pty Limited [2007] QADT 7

Exemption application re: Palmpoint Pty Ltd [2006] QADT 12
Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164
Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49
Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646
Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869
Miami Recreational Facilities Pty Ltd [2013] QCAT 635
Miami Recreational Facilities Pty Ltd [2017] QCAT 253
Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021]…

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: [2021] QCAT 378
Decision Date

CaseChat Overview and Summary

The matter concerned an application by Miami Recreational Facilities Pty Ltd (MRF) for a renewal of an exemption from the Anti-Discrimination Act 1991 (Qld) (ADA) for a retirement village which restricts residency to persons aged over 50. The application was heard and determined on the papers. The issue was whether the tribunal should grant a renewal of the exemption. The tribunal concluded that it should do so. The reasons for this are as follows. It was clear that there were two things which needed particular consideration: the legal constitution of the Village, its facilities and why it is not governed by the Retirement Villages Act 1999 (Qld), and the effect of loss of the exemption. The Village is a self-managed retirement village which has operated for over 40 years. The effect of loss of the exemption would be unsettling for some residents, and it would be contrary to their expectation when they purchased or rented their units. The tribunal concluded that the exemption would be limited to the extent that it was reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and produced a result consistent with the aims and objects of the ADA. The exemption should therefore be renewed.

Orders