Mission Australia

[2011] QCAT 489

CITATION: Mission Australia [2011] QCAT 489

PARTIES: Mission Australia

APPLICATION NUMBER:   ADL071-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 11 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Mission Australia is exempt from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) for a period of three years from the date of this decision in respect of the activities of providing female case workers for the Going Places homeless program in Cairns. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient female case workers to address the objective of servicing the Going Places homeless program in Cairns.

CATCHWORDS:

EXEMPTION – where program for homeless people – where Aboriginal and Torres Strait Island clients – where cultural requirement for female case workers to present program to female clients – whether exemption appropriate

Anti-Discrimination Act 1991, ss 7(a), 14, 15, 127

Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mission Australia operates the Going Places homeless program in Cairns.  The program aims to find housing for people who have experienced long term, chronic homelessness.  Over 90% of the program’s clients are Aboriginal or Torres Strait Islander people.  Recently, two female case workers have left the program and Mission Australia needs to recruit replacements.  It wants to advertise for, and employ, female applicants only so has applied for an exemption from the Anti-Discrimination Act 1991; discrimination on the basis of sex[1]. Although not specified, it appears that Mission Australia seeks an exemption from the operation of ss 14, 15 and 127 of the Act.

   [1] Section 7(a).

Is protection available under s 104 of the Act?

1. Section 104 of the Act states that:

   a person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.

2. The attribute of the group to which the program is directed is “homelessness”.  Female clients are a sub-group of the targeted group but it is possible that the case officers employed will be required to do some acts for the benefit of the clientele as a whole.  I am not convinced that Mission Australia can achieve the necessary protection from s 104.

Is an exemption appropriate?

1. Section 113 of the Act gives the tribunal power to grant an exemption from the operation of specified provisions of the Act.  The Anti-Discrimination Tribunal has previously provided guidance for the exercise of the tribunal’s discretion[2]:

   An exemption must be made in the context of all the relevant factors of the case, and ultimately should further the objects of the ADA to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas (section 6), in the context of the international human rights instruments to which Australia is a party and which are referred to in the Preamble of ADA.  The balance drawn must therefore be undertaken in the light of substantive equality and human rights, rather than for the sake of mere convenience or reputation.

   …

   The following matters may be relevant factors in considering an exemption application: whether the Queensland Anti-Discrimination Commission opposes or supports the exemption (Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198); whether any other persons or bodies other than the applicants support the application (ibid); whether the exemption is in the community interest (ibid); the effect of not granting the exemption and whether members of the community would benefit from the exemption (ibid); whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought (City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450); and the scheme of exception provisions in the Act, to give further insight into its objects (In the matter of Jane Addis (1997) EOC 92-898). The objects of the ADA include Australia's international human rights obligations which are set out in the international instruments referred to with approval in the Preamble to ADA.

   [2]Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10.

2. The program workers are involved with clients in all areas of their personal lives.  Case workers assist clients in: nutrition and food selection and cooking; maintenance of health and hygiene; learning to live in fixed communities; adapting personal hygiene regimes to fixed community living; learning to dispose of waste in fixed community living; managing money and accessing services; managing visitors; finding housing, furniture and other requirements of fixed community living; and working through issues of domestic violence, sexual abuse or relationship issues.

3. Mission Australia submits that many of these tasks relate to intimate personal matters and clients will not engage with the program unless they are comfortable with their case worker.  The tribunal had the benefit of a letter from Ms Joinbee, a female indigenous mentor in the program.  She identified the need for gender-specific case workers for these reasons:

a)Aboriginal society has “men’s business” and “women’s business”.  If there are no female case workers, Mission Australia will find it difficult to engage Aboriginal women in discussions about women’s business.  If an Aboriginal woman engages with a man when discussing women’s business, she experiences “big shame” and her status within her community will be reduced.

b)If an Aboriginal woman deals with a man when coping with domestic or family violence, this may lead to feelings of jealousy from other men in her community.  There could be gossip about what she is doing for that man in return for assistance and she may be subject to physical abuse.

c)The knowledge of where a person sits in the family unit, and how this impacts housing choices, is held by women and not shared with men.

1. Turning to the factors identified in Olympic Roads and Transport Authority (ORTA) exemption application:

a)The application is supported by Ms Joinbee and Wuchopperen Health Service Limited, which operates a substance misuse and healthy lifestyle program in the region.

b)The community has an interest in the program succeeding so that vulnerable people are given the skills to transfer from homelessness to a more settled lifestyle.

c)If the exemption is not granted, and case workers are employed without regard to gender, the program will not be as effective, may fail its clients or even put them at greater risk of harm.

1. It is difficult to conceive of a non-discriminatory way of achieving the purpose for which the exemption is sought. Mission Australia needs female case workers. It has two case workers’ positions available and to achieve the purpose of the program, it must employ two female workers. That is a breach of s 14 of the Act. If Mission Australia advertises generally, but does not interview, or offer work to, males, that is a breach of s 14. If it advertises only for female workers, that is a breach of s 127. Preventing male case workers from dealing with female clients is, arguably, a breach of s 15.

2. The Commission has received a copy of the application from Mission Australia.  It does not object to the exemption being granted.

[10] Therefore, I grant an exemption from the operation of sections 14, 15 and 127 of the Act in relation to the attribute in s 7(a) for a period of three years from the date of this decision in respect of the activities of advertising for, and the employment of, female caseworkers for its Going Places homeless program in Cairns. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient female case workers to address the objective of providing that program.