Re: Rights in Action Inc - [2024] QIRC 132

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Rights in Action Inc. [2024] QIRC 132
PARTY:	Rights in Action Inc. (Applicant)
CASE NO:	AD/2024/21
PROCEEDING:	Application
DELIVERED ON:	27 May 2024
HEARING DATE:	15 May 2024
MEMBER: HEARD AT:	Butler IC Brisbane
ORDERS:	1. Rights in Action Inc. is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attributes in s 7(f) and s 7(h) of the Anti-Discrimination Act 1991. 2. The exemption applies only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment and employment of or to the co-facilitator position for the RYLP pilot based in Cairns. 3. The exemption shall apply to Rights in Action Inc. for a period of five years from the date of these orders.
CATCHWORDS:	INDUSTRIAL LAW – ANTI-DISCRIMINATION – EXEMPTION –application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the grounds of age and impairment so the applicant can advertise, recruit, select, appoint and employ for or to a specific job – exercise of discretion
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld) s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 104, s 105, s 113, s 124, s127, s 174B Human Rights Act 2019 (Qld) s 3, s 5, s 8, s 9, s13, s 48, s 58, s 113 Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Fernwood Women's Health Clubs (Australia) Pty Ltd [2021] QCAT 164 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 Re Palmpoint Pty Ltd [2006] QADT 112 Re Turnaround Management Association Australia Limited (CAN 107 241 798) [2024] QCAT 153 Re: Ipswich City Council [2020] QIRC 194 Re: Kalwun Development Corporation Limited [2019] QIRC 141 Re: Leidos Australia Pty Ltd [2021] QIRC 229 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54
APPEARANCES:	Ms A. Williams and Mr R. Wilson of Rights in Action Inc. for the Applicant. Ms J. Ball for the Queensland Human Rights Commission.

Reasons for Decision

Introduction

By application filed 12 March 2024, Rights in Action Inc. seeks an exemption, pursuant to s 113(1) of the Anti-Discrimination Act 1991 ('Anti-Discrimination Act'), from the operation of certain provisions of that Act.
It seeks the exemption for the purposes of being able to advertise to employ only a young person, aged 18 to 25, who has a diagnosed permanent disability or chronic, episodic mental illness, for a Youth Co-Facilitator role in a young leaders pilot program. The determination of the application requires a consideration of the Anti-Discrimination Act and the Human Rights Act 2019 ('Human Rights Act'). The application included a short statement made on behalf of the Applicant, and the grounds relied upon.
Before deciding an application, the Tribunal[1] must provide a copy of the application and material filed in support of the application to the Human…

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: [2024] QIRC 132
Decision Date: 27 May 2024

CaseChat Overview and Summary

In the matter of Rights in Action Inc., the applicant sought an exemption from specific provisions of the Anti-Discrimination Act 1991 (Qld) to allow for the recruitment of a co-facilitator for the RYLP pilot program based in Cairns. The applicant argued that the exemption was necessary to ensure that the program could be effectively delivered, taking into account the specific skills and experience required for the position. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before the tribunal was whether to exercise its discretion to grant an exemption under section 113 of the Anti-Discrimination Act 1991 for discrimination on the grounds of age and impairment. The applicant needed to demonstrate that the exemption was necessary to achieve a legitimate aim and that it was proportionate to that aim. The tribunal also needed to consider the public interest in preventing discrimination against people with impairments and older individuals.

The tribunal determined that the applicant had established a legitimate aim in seeking the exemption. The tribunal found that the specific skills and experience required for the co-facilitator position were critical to the success of the RYLP pilot program. The tribunal was satisfied that the exemption was proportionate to the aim, given the limited scope and duration of the exemption. After weighing the public interest in preventing discrimination against people with impairments and older individuals, the tribunal concluded that granting the exemption was in the public interest. The tribunal granted the exemption for a period of five years, limited to the specific job role and location.

The tribunal ordered that Rights in Action Inc. be exempt from the operation of sections 14, 15, 124, and 127 of the Anti-Discrimination Act 1991 in relation to discrimination on the grounds of age and impairment. The exemption applied only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment, and employment of or to the co-facilitator position for the RYLP pilot based in Cairns. The exemption was granted for a period of five years from the date of the orders.

Orders

Orders of the court

1. Rights in Action Inc. is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attributes in s 7(f) and s 7(h) of the Anti-Discrimination Act 1991.

2. The exemption applies only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment and employment of or to the co-facilitator position for the RYLP pilot based in Cairns.

3. The exemption shall apply to Rights in Action Inc. for a period of five years from the date of these orders.

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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