Re Brisbane Housing Company Ltd (No 2)
[2012] QCAT 507
•21 September 2012
| CITATION: | Re Brisbane Housing Company Ltd (No 2) [2012] QCAT 507 |
| PARTIES: | Brisbane Housing Company Ltd |
| APPLICATION NUMBER: | ADL063-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 21 September 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Brisbane Housing Company Ltd is exempt from the application of sections 81, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991: a. In relation to the attributes referred to in section 7(a), (b), (c), (d), (o) and (p) of the Act; b. In relation to the attributes referred to in section 7(f) and (h) of the Act insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone; c. In respect of premises located at 47 Warry Street, Fortitude Valley in the State of Queensland; d. For the period 21 September 2012 to 21September 2017. |
| CATCHWORDS: | ANTI-DISCRIMINATION – Application for exemption – accommodation – low income housing – single adults – whether necessary if specific exemption is partly available Anti-Discrimination Act 1991, sections 7, 81-83, 87-92, 103-113, 124, 127, 139(b) and 164A–167 Boeing Australia Holdings Pty Ltd & related entities [ 2003] QADT 21 Exemption Application re: Brisbane Housing Company Ltd [2007] QADT |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the Applicant pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The application
On 6 June 2012 the Tribunal received an application seeking an exemption pursuant to s 113 of the Anti-Discrimination Act 1991 from Brisbane Housing Company Ltd.
[2] Brisbane Housing is a charitable organisation established to provide affordable housing in Brisbane to people on low incomes and with special needs.
[3] The exemption application relates to premises located at 47 Warry Street, Fortitude Valley.
[4] Brisbane Housing advise that the Warry Street premises contains 104 units that are essentially designed for single adult persons.
[5] Brisbane Housing seeks an exemption in the same manner in which it was previously granted an exemption[1] to those premises in March 2007. The previous exemption was granted for a period of five years from 19 March 2007 until 18 March 2012. The exemption has since lapsed.
[1]Exemption Application re: Brisbane Housing Company Ltd [2007] Queensland Anti-Discrimination Tribunal.
[6] That application requested exemption from the operation of the Act in relation to the attributes[2] of sex, relationship status, pregnancy, parental status, family responsibilities and association with, or relation to, a person identified on the basis of any listed attribute, as well as age and impairment, insofar as persons with one or both of those attributes in any particular case is not able to live alone. The exemption seeks to cover the areas[3] of pre-accommodation, accommodation, unlawful requests for information and advertising.
[2]Anti-Discrimination Act 1991, section 7(a), (b), (c), (d), (o) and (p); and (f) and (h) insofar as the effect of one or both of these attributes in any particular case is that a person is not able to live alone
[3] Anti-Discrimination Act 1991, sections 81, 82, 83, 124 and 127.
[7] Brisbane Housing provided written submissions in relation to the application on 23 August 2012.
[8] Brisbane Housing submitted that it provides homes for around 1,200 Brisbane households and that the unique nature of the buildings require specific management plans, resourcing and appropriate controls to ensure fire safety compliance, as well as creating liveable communities in these dense forms of housing.
[9] Brisbane Housing submits that given the challenges some of its more vulnerable tenants experience, the exemptions allows it to have the confidence to assist tenants seek or facilitate alternative housing within Brisbane Housing or other housing options if their circumstances change or becomes unsuitable.
Brisbane Housing submits that the Department of Housing and Public Works statistics indicate that there are over 4,000 single occupant households waiting for affordable housing in the inner-city precinct with over 400 specifically wishing to live in Fortitude Valley.
Brisbane Housing submits, notwithstanding the gentrification of the Valley over recent years, homelessness is ever present in the community and a significant number of housing and support services are based in the Valley.
Brisbane Housing submits being able to provide low-income housing where it is otherwise unaffordable is critical so health and support services are available along with job training and placement opportunities.
Brisbane Housing submits that the premises are well equipped with fire-fighting devices and that there are adequate egress paths, evacuation and meeting points under the current occupancy structure. However, given the high needs of tenants, any increase in the occupation density would create considerable risk to the elderly or impaired occupants.
Brisbane Housing submits it takes a holistic view around the social mix of the premises and that it is imperative that the mix is correct to ensure safety and to help establish a sense of well being and pride within the tenants whilst having consideration for neighbours of the premises and surrounding community. Brisbane Housing submits that capping the number of tenants ensures service quality and ability to lessen wear and tear of the premises.
Brisbane Housing submits its Tenant Transfer Policy (copy provided) allows for tenants to be immediately placed or relocated in circumstances of violence or abuse from another family or community member, or where a community member is suffering immediate rent stress if there has been death of a partner, child or carer.
Brisbane Housing submits the social impacts of the granting of the exemption would enable it to consider transfer to a more suitable property if required.
Brisbane Housing advise that it also owns 80 units in inner-city Brisbane that are suitable for two or more occupants and that other community housing providers and public housing also offer homes for two or more occupants but that the demand for inner-city places are predominantly by single person occupants as larger household types prefer to live out of the city.
Footprints in Brisbane Inc, a not for profit community organisation that provides support for older people, people with disability and their carers, people with mental illness, people who are homeless and those who are financially and socially disadvantaged resident in the inner northern suburbs of Brisbane, supports the application.
Footprints in its letter to the Tribunal dated 24 August 2012 advise it works with Brisbane Housing to provide critical support to sustain tenancies in the subject premises.
Footprints submit these large, dense developments require targeted management practices and a coordinated response to support services to sustain the tenancies of many tenants.
Anti-Discrimination Commissioner's submission
In accordance with the requirements in section 113(2) of the Anti-Discrimination Act 1991 the Tribunal gave the Anti-Discrimination Commissioner a copy of the exemption application.
The Commissioner replied by letter dated 3 July 2012, noting the previous exemption, and advising that he had no objections to the application being granted in the same or similar terms as the 2007 exemption, on the understanding the circumstances are not materially different.
The Commissioner had no submissions as to process for considering the application.
Legislation and conclusion
The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person based on certain personal attributes in specific areas of public life.
The Act also provides that in particular in circumstances some potentially discriminatory actions may be excused or exempt through the application of specific defences and ‘permanent’ specific and general exemptions.
Practically this means if a person makes a complaint that involves one of these circumstances to the Queensland Anti-Discrimination Commission a Respondent may rely on that particular defence and or exemption in response to the complaint.
If required the Commissioner may make a decision about whether or not a defence or exemption applies and reject a complaint if for example the Commissioner was of the reasonable opinion the complaint was misconceived.[4]
[4] Anti-Discrimination Act 1991, section 139(b).
If the complaint is not rejected by the Commissioner and the complaint matter is ultimately referred to the Tribunal,[5] the Tribunal will decide whether or not a defence or exemption applies, and if it does will dismiss the complaint insofar as to the extent the exemption may apply.
[5] Ibid, sections 164A-167.
If however, there is not a ‘permanent’ specific or general exemption applicable to the circumstances, a person or an organisation may apply to the Tribunal under section 113 of the Anti-Discrimination Act 1991 for the grant of a ‘temporary’ exemption from the Act. The grant of an exemption is discretionary.[6] The period of exemption must not be more than 5 years.[7]
[6] Ibid, section 113(1).
[7] Ibid, section 113(6).
In considering such an application the Tribunal must first consider whether a ‘temporary’ exemption is necessary. If the Tribunal is satisfied the exemption is necessary it then considers whether the exemption is appropriate and reasonable, whether there are other non-discriminatory ways of achieving the purpose, whether the exemption is in the community interest and whether other persons or organisations support the application.[8]
Is an exemption necessary?
[8]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
In the current application Brisbane Housing is asking the Tribunal to exempt it from the operation of the Act in regards to the single unit low cost housing services it provides to a broad range of vulnerable clients.
Whilst the Act generally prohibits discrimination in the area of pre-accommodation and accommodation areas,[9] the Act also provided specific exemptions in the accommodation area.[10]
[9] Anti-Discrimination Act 1991, sections 82 and 83.
[10] Ibid, sections 87-92.
Relevantly, section 91 provides it is not unlawful to discriminate on the basis of sex, relationship status or age if the accommodation concerned is under the direction or control of a body established for charitable purposes and the discrimination is in accordance with the particular purposes for which the accommodation was established by the body.
Furthermore section 92 provides that a person may discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited if the other person would require special services or facilities and the supply of those would impose an unjustifiable hardship on the first person. Whether the supply would cause such hardship depends on the consideration of circumstances as set out in section 5 of the Act.
The Act also provides for general exemptions, including this current process with the Tribunal,[11] but relevantly to this case section 104 provides 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 the Act. The examples provided in the Act include: it is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail older people.
[11] Ibid, sections 103-113.
Whilst it appears that there are some specific exemptions that would be available to Brisbane Housing should a complaint of age, sex or impairment arise against it, given the breadth of attributes included in the application, Brisbane Housing would still be at risk of a complaint of discrimination against it. For example if a woman tenant residing in one of the single person units became pregnant and Brisbane Housing sought to transfer her to other accommodation for two or more people the woman would be at liberty to make a complaint to the ADCQ claiming potentially sex, pregnancy, or parental status discrimination in the area of accommodation. Likewise if an older person, who was supported by a full-time carer, sought accommodation in one of the single person units and was refused a tenancy because they required a carer to live with them that person would also be at liberty to make a complaint to the ADCQ claiming age discrimination in the pre-accommodation area on the basis of his need for a live-in carer.
Although there are some specific exemptions that would cover some, but not all, of the potential scenarios that could give rise to a complaint in the accommodation services provided by Brisbane Housing, given the number and diversity of the potential tenants Brisbane Housing seeks to accommodate and the uncertainty of making out any defence or specific exemption in potentially complex and diverse circumstances, the Tribunal is satisfied that an exemption is necessary.
Is the exemption appropriate and reasonable, are other non-discriminatory ways of achieving the purpose, is it in the community interest and do other persons or organisations support the application?
Brisbane Housing has advised the Tribunal that there are over 4,000 single occupant households looking for low cost or public housing in the inner city of Brisbane. Brisbane Housing refers to the diversity and vulnerability of many tenants or potential tenants. Brisbane Housing advise that many of the health and welfare services those tenants require are located within close proximity to the accommodation and that private housing is out of reach because of the costs. Brisbane Housing advises that they have 80 units in other locations in the inner-city for two or more occupants.
Brisbane Housing advise that whilst they have not been required to apply the previous exemption, the management value the transparency of an exemption to ensure informed communication with tenants, and the confidence to assist tenants seek alternative accommodation within Brisbane Housing or other community or public housing provider given the challenges some of the more vulnerable tenants experience.
Footprints in Brisbane Inc supports the exemption application and the Anti-Discrimination Commissioner has raised no objections to the application.
The Tribunal is satisfied that the provision of single occupancy low cost housing, to vulnerable persons wishing to reside in the inner-city to be close to a variety of services, is entirely appropriate and reasonable in a fair and inclusive society. The accommodation services as described do not appear in conflict with objectives of the Act and in fact appear highly consistent with the purpose of promoting equality of opportunity for everyone and protecting them from unfair discrimination.
Pursuant to section 113 of the Anti-Discrimination Act 1991, the Tribunal accordingly grants the exemption as sought in the application and makes the following Order:
1. Brisbane Housing Company Ltd is exempt from the application of sections 81, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991
a.In relation to the attributes referred to in section 7 (a), (b), (c), (d), (o) and (p) of the Act;
b.In relation to the attributes referred to in section 7(f) and (h) of the Act insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone;
c.In respect of premises located at 47 Warry Street, Fortitude Valley in the State of Queensland;
d.For the period 21 September 2012 to 21 September 2017.
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