Re Mission Australia
[2012] QCAT 124
•21 March 2012
| CITATION: | Re Mission Australia [2012] QCAT 124 |
| PARTIES: | Mission Australia |
| APPLICATION NUMBER: | ADL002-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 21 March 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Application for exemption under the Anti-Discrimination Act 1991 is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – Application for exemption – women’s refuge – whether necessary – when specific exemption genuine occupational requirement reasonably available Anti-Discrimination Act 1991, ss 25, 113 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 |
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 9 January 2012 the Tribunal received an application from Mission Australia for an exemption under section 113 of the Anti-Discrimination Act1991.
Specifically, Mission Australia seeks a three-year exemption in relation to staff to provide services to women and their children who are escaping domestic and family violence on the Mornington Island Indigenous community.
Mission Australia seeks the exemption in relation to the employment of women only in the positions of Team Leader and Support Workers.
Mission Australia advise that it has recently been funded by government to provide a women’s refuge providing crisis accommodation to women and children escaping domestic violence on the remote Indigenous community of Mornington Island.
Mission Australia advise the accommodation would be run from a dedicated physical location that would be respected by the community as a ‘women’s place’.
Mission Australia submit the service deals mainly with high complex needs clients who are involved in domestic violence relationships who would feel more comfortable being supported by female staff.
Mission Australia submit the client needs range from responses to domestic violence, alcohol and drug abuse, mental health issues, being homeless, lack of budgeting skills, lack of living skills, low level of basic personal hygiene, continual issues with the law and health and safety concerns.
Mission Australia submit it is critically important to ensure respect for the service as a ‘women’s business’ place to maximise the safety of women and their children who may be resident at the refuge from time to time.
Mission Australia submit the work of the Team Leader and Support Workers will be performed at the refuge and the work includes assisting women and children escaping domestic violence, providing a safe place for them to come to, assisting with counselling, transitioning to alternate accommodation and developing a safety plan.
[10] Mission Australia submits a case plan may include taking a client to appointments including general and mental health, assisting a client adhere to court orders or assistance with gaining custody of their children.
[11] Mission Australia submits the service will operate 24/7 and staff will be rostered throughout at the refuge.
[12] Mission Australia submits confidentiality and safety are extremely important for both clients and staff because of the issue of violence in an emotionally demanding environment.
[13] Mission Australia submits it would be inappropriate to allow men access to client notes that relate to the experience of women utilising the service and that it would be culturally inappropriate to mix ‘women’s business’ with ‘men’s business’.
[14] Mission Australia submits an exemption is required to employ female only staff for the service to run successfully.
[15] Mission Australia also provided a letter of support in regards to the application for exemption from Queensland Department of Communities, North West Services, Regional Director Nicola Jeffers dated 7 February 2012.
Anti-Discrimination Commissioner’s submission
[16] 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.
[17] The Commissioner replied by letter dated 28 February 2012, noting he had no objections to the application being granted and that he had no submissions as to process for considering the application.
Legislation and conclusions
[18] The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person based on certain personal attributes in specific areas of public life.
[19] However, the Act also allows certain circumstances/actions to be excused or excluded from its operation through the application of specific defences and ‘permanent’ specific and general exemptions.
[20] If those circumstances or actions thereafter give rise to a complaint to the Queensland Anti-Discrimination Commission a Respondent may raise a particular defence and exemption in response to the complaint.
[21] If required the Commissioner may make a decision about whether or not a defence or exemption applies within the complaint process. For example, the Commissioner must reject a complaint if the Commissioner is of the reasonable opinion the complaint is misconceived or lacking in substance.[1]
[1] Anti-Discrimination Act 1991, s 139 (b).
[22] Alternatively, if the complaint is referred to the Tribunal,[2] the Tribunal may be required to decide whether or not a defence or exemption applies within the Tribunal proceeding.
[2] Ibid, ss 164A-167.
[23] Outside the complaint and referral process 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.[3] The period of exemption must not be more than five years.[4]
[3] Ibid, s 113(1).
[4] Ibid, s 113(6).
[24] 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.[5]
[5]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
[25] In regards to examining whether the exemption is necessary the Tribunal turns to the Act to see if a specific defence or ‘permanent’ specific or general exemption is open to a person or organisation should a complaint subsequently arise from the proposed circumstances or action that is the subject of the application.
[26] In the current application the Tribunal is satisfied that, on the face of it, employing female only staff to work in the refuge, would be inconsistent with the provisions of the Act relating to the personal attribute of sex in the pre-work and work areas under the Anti-Discrimination Act 1991.[6]
[6] Anti-Discrimination Act 1991, ss 7(a), 14 and 15.
[27] However the Act also provides for specific exemptions for discrimination in the work and work-related areas and the Act states that it is not unlawful to discriminate in the work or work-related area if an exemption in sections 25 to 36 or part 5 applies.[7]
[7] Ibid, s 24.
[28] Specifically, the Act provides that a person may impose genuine occupational requirements for a position and moreover, the Act provides examples of what might be considered a genuine occupational requirement. Example 3 includes considering only women applicants for a position involving body searches of women.[8]
[8] Ibid, s 25(1).
[29] Although the Act provides no further assistance on what may constitute a genuine occupational requirement, the case law[9] and formal opinion[10] indicates that the question can only be answered on a case-by-case examination of the specific circumstances of the position and whether the requirement is genuine, necessary and relates to the job.
[9] Walsh v St Vincent de Paul Society Queensland (No 2) [2008] QADT 28.
[10] OP101/39 Opinion of Member P Tahmindjis, 1 February 2002 QADT.
[30] In regards to the current application Mission Australia has advised the Tribunal that the positions of Team Leader and Support Workers would be required to provide 24/7 crisis accommodation, personal and welfare services including counselling, advocacy and teaching basic hygiene and life skills to women and their children escaping domestic violence.
[31] Although it is not the Tribunal’s role in this application for exemption process to make a decision in relation to whether or not a specific exemption under section 25 would apply to the current circumstances the Tribunal is satisfied and considers, given the example used in the Act and the context and circumstances of the proposed positions as described by Mission Australia, that the section 25 exemption is reasonably open to Mission Australia to argue should a complaint arise in the future in regards to the particulars relating to the application for exemption.
[32] Once the information the Tribunal has provided in these reasons and the case and opinion to which it has referred has been considered by Mission Australia it may wish to consider, when advertising for the stated positions, inserting into the advertisement something to the following effect, for example, Mission Australia considers being a female is a genuine occupational requirement for the position as envisaged under section 25 of the Anti-Discrimination Act 1991 to foreshadow that should a complaint arise in the future in relation to the positions it would raise this exemption in its response.
[33] Whilst acknowledging that there is no absolute certainty for Mission Australia in relation to whether it could establish an exemption under section 25 the Tribunal is satisfied that this provision of the Act is reasonably open to argue should a complaint concerning discrimination in employment arise in the future.
[34] In all the circumstances the Tribunal is satisfied, given the availability of the exemption provided in section 25, that it is not necessary to grant an exemption under s 113.
[35] The application for exemption is dismissed.
[36] As a matter of note, the Tribunal notes Mission Australia did not seek an application for exemption in relation to the provision of services to women only explicit in the overall funded program. Whilst the Tribunal has no detail in regards to any general or statutory obligations in the establishment of the service the Tribunal notes the same principles would apply as outlined in this application and refers Mission Australia to the specific exemptions in the Act relating to the goods and services area [section 46(2)] and the general exemption relating to welfare measures [section 104] for its information.
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