Re: Children by Choice Association Incorporated - [2023] QIRC 293

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Children by Choice Association Incorporated [2023] QIRC 293
PARTY:	Children by Choice Association Incorporated (Applicant)
CASE NO.:	AD/2023/77
PROCEEDING:	Application
DELIVERED ON:	10 October 2023
MEMBER: HEARD AT:	Pidgeon IC On the papers
ORDER:	1. Children by Choice Association Incorporated is exempt from the operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld). 2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for Children by Choice Association Incorporated. 3. The exemption shall apply to Children by Choice Association Incorporated for a period of five years from the date of these orders.
CATCHWORDS:	EQUAL OPPORTUNITY AND DISCRIMINATION – application to grant exemption under the Anti-Discrimination Act 1991 (Qld) s 113 so the Applicant can advertise for, recruit and employ only women to all positions – where the Applicant is an independent non-profit providing services to women and pregnant people – where many of the Applicant’s clients report experiencing domestic violence, sexual assault, or reproductive coercion, predominantly perpetrated by men – where the exemption is sought to enable the Applicant to meet its objectives and service provision obligations under funding arrangements – where the exemption is sought to enable the Applicant to provide services in a space and manner whereby women and pregnant people feel safe and comfortable – where the Queensland Human Rights Commission says that excluding males from work with the Applicant is prima facie unlawful sex discrimination under the AD Act – where the Queensland Human Rights Commission submits the exemption should be limited to roles that require direct contact with clients – where the Queensland Human Rights Commission proposes alternative measures for achieving the objectives of the exemption application – where the exemption is necessary – where there are no suitable non-discriminatory ways of achieving the objects or purposes for which the exemption is sought – where the exemption is in the community interest – where persons or bodies other than the Applicant support the exemption application –exemption granted for five years HUMAN RIGHTS – DISCRIMINATION LEGISLATION – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – where the Queensland Human Rights Commission submits that the Applicant has not demonstrated that restricting work to women only is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination –where the limitation is demonstrably justified – exemption granted for five years
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) ss 7, 14, 15, 15A, 25, 104, 105, 113, 124, 127, 174B Human Rights Act 2019 (Qld) ss 5, 8, 9, 13, 15, 48, 58
CASES:	Boeing Australian Holdings Pty Ltd & related entities [2003] QADT 21 Castles…

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.

Keep reading for free

Create a free CaseChat account to read Re: Children by Choice Association Incorporated and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QIRC 293
Decision Date: 10 October 2023

CaseChat Overview and Summary

The Children by Choice Association Incorporated sought an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to allow the organisation to advertise for, recruit, and employ only women to all positions. The organisation provides services to women and pregnant people, many of whom have experienced domestic violence, sexual assault, or reproductive coercion. The exemption was sought to enable the organisation to meet its objectives and service provision obligations under funding arrangements, and to provide services in a space and manner where women and pregnant people feel safe and comfortable. The Queensland Human Rights Commission opposed the application, arguing that excluding males from work with the applicant is prima facie unlawful sex discrimination under the Anti-Discrimination Act, and that the exemption should be limited to roles that require direct contact with clients.

The court had to decide whether the exemption was necessary, if there were suitable non-discriminatory ways of achieving the objects or purposes for which the exemption was sought, and whether the exemption was in the community interest. The court also had to determine whether granting the exemption would affect a human right within the meaning of the Human Rights Act 2019 (Qld), and whether the exemption was compatible with human rights. The court found that the exemption was necessary, there were no suitable non-discriminatory ways of achieving the objects or purposes for which the exemption was sought, and the exemption was in the community interest. The court also found that the exemption did not affect a human right within the meaning of the Human Rights Act, and was compatible with human rights.

The court granted the exemption for a period of five years. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for Children by Choice Association Incorporated. The exemption is from the operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld). The court noted that the exemption was necessary to enable the organisation to meet its objectives and service provision obligations under funding arrangements, and to provide services in a space and manner where women and pregnant people feel safe and comfortable. The court also noted that the exemption was in the community interest, and that there were no suitable non-discriminatory ways of achieving the objects or purposes for which the exemption was sought.

Orders

Orders of the court

1. Children by Choice Association Incorporated is exempt from the operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).

2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for Children by Choice Association Incorporated.

3. The exemption shall apply to Children by Choice Association Incorporated for a period of five years from the date of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

With regard to the standard of proper consideration to human rights required, the Human Rights Commissioner says:The standard of consideration will differ depending on the circumstances, including the identity of the decision-maker, and the obligation extends to consideration of how the decision will operate in practice and whether any guidelines designed to ameliorate the effect of a decision are capable of operating effectively.[21] The aspect of identify of the decision-maker was affirmed in Owen-D’Arcy where the Court said: The identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner. Decision makers like [the Corrective Services officer] are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge.[22]This suggests that the standard to be adopted by the tribunal should be higher than that expected of other public entities such as officers of government departments or agencies. [21] Judicial College of Victoria, ‘3.2. Obligations on public authorities (s 38)’, Charter of Human Rights Bench Book (Web page, 1 September 2017) [15]–[16] < [22] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [137].Human rights considerations The Human Rights Commissioner says that the protection from discrimination in the AD Act is reinforced and must be read with the identified rights in the HR Act. Determining whether an exemption under s 113 of the AD Act would engage human rights can be determined by reference to the effect of the exemption if granted.[23][23] Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869, [310] (‘Lifestyle Communities Ltd (No. 3)’). Furthermore, the Human Rights Commissioner submits that the effect of the proposed exemption would be to allow Children by Choice to discriminate on the basis of sex in work and work-related areas. Such an exemption would affect the right to equality and equal protection of the law without discrimination as set out in s 15 of the HR Act (which I have set out above at [16]).[24][24] QHRC submissions (n 11) 4. The Human Rights Commissioner states that as the discretion to grant an exemption must be exercised compatibly with human rights, the exemption must be either a measure for assisting people disadvantaged by discrimination, or for activities that limit human rights reasonably and no more than is demonstrably justified in a free and democratic society.[25][25] Lifestyle Communities Ltd (No. 3) (n 23) [420]. The Human Rights Commissioner contends that the purpose of s 15(5) of the HR Act is to promote substantive equality and if the activity is a special measure within s 15(5), it would be compatible with human rights. The Human Rights Commissioner argues that the proposed exemption is not a measure under s 15(5) and therefore, the onus is on Children by Choice to demonstrate that the limitation is demonstrably justified in accordance with s 13 of the HR Act which is referred to as the proportionality test. The Human Rights Commissioner says that the factors in s 13(2) are important but not exclusive.[26][26] QHRC submissions (n 11) 6.