Re Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust

[2012] QCAT 369

CITATION: Re Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust [2012] QCAT 369

PARTIES: Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust

APPLICATION NUMBER:   ADL033-12

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: S Gardiner, Member

DELIVERED ON: 14 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:     1. Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust is exempt from the operation of sections 7(f), 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 for the period of 5 years in respect of its activities in relation to the property known as Greenbank Gardens Village situated at 3651 Mount Lindsay Highway Park Ridge in the State of Queensland.

CATCHWORDS:

ANTI-DISCRIMINATION – exemption from liability sought on basis of age – manufactured homes village – restriction sought to residents over 50 – exemption granted

Anti-Discrimination Act 1991, reasons (6)(a) and (c), ss 7(1)(f), 45, 46, 76, 77, 81-83

Palmpoint Pty Limited [2011] QCAT 140

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust runs a residential park for manufactured homes at Park Ridge.  It provides affordable housing for people 50 years and over and has services and amenities relevant to this age group of people.  Surtie says the park is in close proximity to outside amenities such as shops and is attractive to retirees.  The park currently has 214 sites and approximately 330 residents, the majority of which are over 65 years of age. 

2. Surtie Enterprises applies for an exemption from the operation of the Anti-Discrimination Act 1991[1] in order to provide housing to people over 50 years of age in the village.  Surtie Enterprises seeks the exemption for a period of five (5) years, which is the maximum period permissible under the Act.

   [1]        Exemptions are sought from the following sections:  7(1)(f), 45, 46, 76, 77, 81-83.

1. Surtie Enterprises has provided the Tribunal with a report from a business and economics consultant indicting that:

a)The population in the catchment area is growing and the aged 50+ population within that group is growing at a far higher rate that will increase over time;

b)This more mature population is a disadvantaged group with significantly lower levels of income;

c)The majority of housing stock elsewhere in the locality is separate houses;

d)The aged population is growing, producing a growing need for specialist retirement housing;

e)Suitable accommodation exists elsewhere in Logan City for persons aged under 50 years as well as younger people, who do not prefer the village type of accommodation.  These groups of people will not be disadvantaged if an exemption is granted;

f)The exemption sought will benefit the community and is not in conflict with the intentions of the Act.

1. QCAT 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.  A copy of the application was sent to the Commissioner on 22 June 2012.  The Commissioner has informed QCAT, in a letter received by the Tribunal on 17 July 2012, that he has no objection to an exemption being granted to Surtie Enterprises. 

2. In considering this application, I must first examine whether an exemption is necessary[2] as conduct first appearing to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and it may not be necessary to grant a general exemption under section 113.

   [2]Exemption application Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.

3. Section 104 of the Anti-Discrimination Act 1991 provides that a person may carry out some conduct to benefit the members of a group of people with an attribute for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991. 

4. This means that an exemption under section 113 may not be necessary if the provision of accommodation and associated facilities in the village was to benefit the members of a group of people with an attribute for whose welfare the accommodation was designed.  I am not satisfied that this defence would be sufficient to excuse the restriction of accommodation in the village to persons aged 50 years and over and I rely on and agree with the reasoning in Palmpoint Pty Limited[3], in particular that age, quite unlike the other attributes in the Act, cannot clearly identify a person as belonging to a particular group and there is a wide variety of attributes in the 50+ age group.

   [3] [2011] QCAT 140 at paras 18-21.

5. The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination, and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[4]   

   [4]        Anti-Discrimination Act 1991, Parliaments reasons for enacting: reasons (6)(a) and (c).

6. I am satisfied that it is respectful of the dignity and worth of older persons in our community and to their benefit to provide affordable and appropriate accommodation to this section of our community to the potential exclusion of younger people whose needs are otherwise appropriately catered for in the same area, and I satisfied that there exists an appropriate basis for this exemption.

[10] I grant an exemption to Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust from the operation of sections 7(f), 45, 46, 76, 77 and 81, 82 and 83 of the Anti-Discrimination Act 1991 for the period of five (5) years in respect of its activities in relation to the property known as Greenbank Gardens Village situated at 3651 Mount Lindsay Highway Park Ridge in the State of Queensland.