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

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?

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.
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?

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…

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: [2011] QCAT 489
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the case of Mission Australia, the central issue revolved around whether the organisation was exempt from specific provisions of the Anti-Discrimination Act 1991 (Qld) concerning the employment of female case workers for their Going Places homeless program, which specifically serves Aboriginal and Torres Strait Islander clients in Cairns. The decision was made by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the tribunal involved interpreting the Anti-Discrimination Act and determining whether the cultural requirements of the Aboriginal and Torres Strait Islander clients justified an exemption from the Act. Specifically, the court had to decide if the need for female case workers to service female clients was a reasonable act or omission under the Act.

The tribunal found that Mission Australia was eligible for an exemption under the Anti-Discrimination Act. The reasoning was grounded in the cultural needs of the clients, which necessitated female case workers for female clients. This requirement was deemed necessary to address the specific needs of the community and ensure the effectiveness of the homeless program. The tribunal concluded that these acts were necessary and proportionate to achieving the program's objectives. Consequently, Mission Australia was granted an exemption from sections 14, 15, and 127 of the Act in relation to the attribute of sex for a period of three years. This exemption applied specifically to the activities required to employ sufficient female case workers to meet the program's objectives in Cairns.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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