Palmpoint Pty Limited
[2011] QCAT 140
•6 April 2011
| CITATION: | Palmpoint Pty Limited [2011] QCAT 140 |
| PARTIES: | Palmpoint Pty Limited |
| APPLICATION NUMBER: | ADL138-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 6 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Palmpoint Pty Limited is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 7 April 2011 to 6 April 2016 in respect of its activities in relation to the property known as Bribie Pines Island Village and Island Breeze Resort situated on land described as Lot 15 on SP108119, County of Canning, Parish of Woolum. |
| CATCHWORDS: | Further period of exemption sought from age discrimination provisions – accommodation for seniors Anti-Discrimination Act 1991 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Palmpoint Pty Limited had been granted an exemption from the operation of certain provisions of the Anti-Discrimination Act 1991 for a period of 5 years from 7 April 2006 in relation to its activities on property known as Bribie Pines Island Village. On 1 December 2010 Palmpoint applied to the tribunal seeking a further period of exemption.
In its application, Palmpoint stated that it remains the owner of land on which is located Bribie Pines Island Village which is a relocatable home park. Palmpoint stated that on the land is also situated a second relocatable home park known as Island Breeze Resort. The second relocatable home park is operated in the same way as Bribie Pines Island Village under the same management. Together the two parks are referred to as the Residential Village in these reasons.
Evidence was given in support of the exemption application that the Residential Village is centrally located on Bribie Island which has a temperate climate and close to shops and facilities that are attractive to the aged and retirees including safe beaches and waterways, fishing, boating, three lawn bowls clubs, one indoor bowls club, one croquet club, two golf clubs and other recreational and sporting facilities.
Palmpoint stated that the Residential Village provides affordable accommodation for aged and retired persons in a safe, secure and attractively landscaped environment. The Residential Village has security features such as a 2.1 metre high perimeter security fence, security coded electric sliding gates, managers residing on site and security patrols each night.
The application revealed that the Residential Village includes two swimming pools with rails and easy access for the elderly and infirm, a spa and two leisure centres with a dance floor, stage, pool tables, indoor bowls, exercise rooms, television room and outdoor entertainment and barbeque areas.
Palmpoint is the owner of the Residential Village but the residents own their own manufactured homes in the Residential Village and have site agreements which allow them to place their manufactured homes on specified sites in the Residential Village.
The Residential Village has 283 sites and at the time of the application had 473 residents, the majority of whom were over 65 years of age.
According to the information contained in the application, Bribie Island has a range of dwelling types. Census data published by the Australian Bureau of Statistics and set out in the application reveals that the median age in 2006 of residents on Bribie Island was 55 years of age compared to a median age of 37 years in Queensland as a whole.
Palmpoint submitted that an exemption would not disadvantage the wider community as there is ample accommodation on Bribie Island and surrounding areas and the local area is experiencing a rapid pace of development ensuring the continuing provision of affordable housing.
[10] It was submitted that the exemption application was based on sound social factors and was not in conflict with the intentions of the Act. It was submitted that the Queensland Parliament has recognised the special needs and requirements of seniors, including appropriate accommodation, through the enactment of programs and legislation such as the Retirement Villages Act 1999.
[11] It was submitted that the existence of retirement villages and manufactured home parks especially for seniors is also of benefit to society. Their greater health care needs requiring services different from other demographic groups in society can be provided in purpose built facilities which can deliver those services in a more cost effective manner.
[12] The application seeks a further period of exemption from the operation of the Act in relation to discrimination on the basis of age. Section 113 of the Act provides the tribunal with the power to grant exemption to an applicant from the operation of a specified provision in the Act. The tribunal is required to provide a copy of the application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner.
[13] On 23 December 2010 the Commissioner provided comments on the application which raised issues about the need to clarify the identity of the entities for which the exemption is sought to benefit. In the application decided in 2006 the applicant identified the operation of Bribie Pines Island Village as the focus of the application. The current application relates to Bribie Pines Island Village and also Island Breeze Resort which is not a registered business name. The Commissioner submitted that information about the owners and operators of both manufactured home parks be established to ensure that the scope of any exemption is clear.
[14] Following up the submissions of the Commissioner, the tribunal made further enquiries and was informed that the applicant was the owner and operator (under a trading name) of the whole of the Residential Village comprising both Bribie Pines Island Village and Island Breeze Resort.
[15] In 2006 the former tribunal comprehensively examined the legal basis for considering an exemption in this case.[1] I endorse the cogency of the analysis of the legislation and case law set out in that decision and I consider that the conclusions on law reached in 2006 are as valid today as they were then.
[1] Palmpoint Pty Ltd [2006] QADT 12.
[16] I accept the evidence set out in the application. I find that the accommodation and facilities in the Residential Village are generally attractive to persons aged 50 years and over. I am satisfied that restricting accommodation and use of facilities in the Residential Village to persons aged 50 years and over would be of benefit for persons within that particular demographic. I am also satisfied that restricting accommodation and use of facilities in the Residential Village in the manner intended will involve treating other persons younger than that demographic less favourably.
[17] The question to be determined is whether granting an exemption under section 113 from the operation of the Act is appropriate. It might be argued that an exemption is not necessary given the presence in section 104 of the Act of a defence to a complaint of unlawful discrimination if the actions complained of have been done to further the welfare of a group of persons and if the actions are not inconsistent with the Act.
[18] In other words, an exemption under section 113 may not be considered necessary if the tribunal considered that the provision of accommodation and associated facilities in the Residential Village was to benefit the members of a group of people with an attribute for whose welfare the accommodation was designed. After considering the evidence in this case, I have not been satisfied that the defence otherwise provided by section 104 to complaints of discriminatory behaviour would be sufficient to excuse the restriction of accommodation in the Residential Village to persons aged 50 years and over.
[19] At 50 years of age, a person is generally still in the workforce. I cannot accept that persons under retirement age have needs and interests wholly identical with persons aged 60 years and over. I consider it is clearly arguable that persons under retirement age are not necessarily members of a group who share the same attribute of age as persons over the retirement age. Age as an attribute in the Act is not restricted to old age. The attribute of age includes every age group in society.
[20] In this manner, the attribute of age is quite unlike the other attributes in section 7 of the Act such as sex, pregnancy, impairment or race in which a person can clearly be identified as belonging to a group with a nominated attribute. I consider that quite valid arguments could be raised as to whether section 104 could effectively exempt the restriction of accommodation and use of facilities in the Residential Village to persons aged between 50 and 60 years of age while such arguments may be less effective if the restrictions were specifically for persons over retirement age.
[21] In my view, the applicant was prudent to seek exemption under section 113 of the Act. It has been recognised that the purpose of section 113 is to allow people the protection and security of a shield against complaints of unlawful discrimination in circumstances where their proposed actions would constitute a prima facie case of unlawful discrimination.[2] An exemption can be granted by the tribunal with as much flexibility as needed to meet the particular facts of each case.
[2] J & D Richards Developments Pty Ltd [2005] QADT 13.
[22] The evidence of the applicant has established that the majority of residents in the Residential Village are over 65 years of age. It would be for the benefit of persons generally described as seniors to have available for their use such accommodation and facilities that meet the needs and requirements of seniors.
[23] There is already a recognition in existing State legislation that the special needs and requirements of seniors, including appropriate accommodation, should be catered for and that the provisions of the Anti-Discrimination Act 1991 should not always apply in cases involving seniors. By way of an example, section 26 of the Retirement Villages Act 1999 provides that it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons.
[24] Manufactured home parks do not come within the scope of the Retirement Villages Act 1999. This type of affordable accommodation is particularly attractive to seniors.
[25] The Residential Village in this application provides facilities, security and access of a type designed to support seniors in independent living. Some aspects of this support are not designed to assist younger persons and may in fact be unattractive to that demographic. The tribunal is satisfied that accommodation that suits the needs of younger persons is readily available in the area. The tribunal is satisfied that persons under 50 years of age will not be disadvantaged in the event that an exemption is permitted to continue in relation to the Residential Village in this case.
[26] It is a benefit to the community to have accommodation and facilities that meet the needs of senior members of society.
[27] An exemption is granted to Palmpoint Pty Limited from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 7 April 2011 to 6 April 2016 in respect of its activities in relation to the property known as Bribie Pines Island Village and Island Breeze Resort situated on land described as Lot 15 on SP108119, County of Canning, Parish of Woolum.
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