Re The Women's Community Aid Association (Qld) Limited
[2011] QCAT 593
•18 November 2011
| CITATION: | Re The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593 |
| PARTIES: | The Women’s Community Aid Association (Qld) Limited |
| APPLICATION NUMBER: | ADL040-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 18 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – exemption from liability sought for services provided only to women – where a specific exemption and defence available – where general exemption not necessary Anti-Discrimination Act 1991, ss 6(b), 25, 104, 113 Qantas Airways v Christie (1998) HCA 18 |
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
The Women’s Community Aid Association (Qld) Limited is a non-government community organisation which operates the Brisbane Rape and Incest Survivors Support Centre and Women’s House Shelta.
The services provided by WCAA include:
a. A place where women who have experienced sexual violence can talk with other women in a safe, supportive and confidential environment;
b. Telephone support, information and resources;
c. Short to medium term individual support;
d. Support groups for survivors of sexual violence;
e. Information on police, medical and court procedures, including support and advocacy throughout reporting and court process;
f. Community education about violence against women, facilitated discussion and workshops;
g. Workplace training on feminist support work practices;
h. Library, lending resources and internet facilities;
i. Meeting space for women;
j. Information and referrals to friends, relatives and supporters of women and children who have experienced sexual violence;
k. Domestic violence support services; and
l. Child minding to support women to access the support services.
It can be seen that WCAA, through the Brisbane Rape and Incest Survivors Support Centre, provides individual and group support for women who have experienced violence from men. According to its website, individual support can take the form of face to face support from support workers and counsellors four days a week. There are also support group meetings over 8 to 10 week periods and workshop or drop in group meetings held fortnightly. WCAA has library and internet facilities which are used by women accessing its services or by women from the wider community.
WCAA is staffed by women and the premises where WCAA operates its activities is described as a women’s only space. The website of Brisbane Rape and Incest Survivors Support Centre explains that in a women’s only space, women have the right to be listened to, believed and supported, have the right to be treated with respect, dignity and understanding and have the right to confidentiality and privacy.
WCAA has applied for an exemption under section 113 of the Anti-Discrimination Act 1991 from specific areas of the operation of the Act. WCAA has submitted that an exemption is sought in order to provide security for the women and children who access the premises. The exemption seeks to restrict WCAA’s services to being provided only to women and their children and to prohibit men from remaining on the premises. The exemption is seen as a means of guaranteeing that only female workers and female volunteers provide services to women and their children at WCAA’s premises so that women and children who have experienced violence from men are not exposed to emotional triggers by encountering men at the premises.
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. The Commissioner has informed QCAT that he has no objection to an exemption being granted to WCAA.
In considering this application, QCAT must first examine whether an exemption is necessary.[1] Conduct which may appear on initial examination to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and in those cases it will not be found necessary that a general exemption under section 113 is granted.
[1]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Section 25 permits genuine occupational requirements being imposed in work or work related areas of activities. Work is defined as including both paid work and work on a voluntary or unpaid basis. If a complaint were to be made against WCAA in the area of work, section 25 may be raised in defence of that complaint.
Terms such as “genuine occupational requirement” have been the subject of judicial consideration and in Qantas Airways v Christie[2], Justice Gaudron of the High Court of Australia explained that determining if a requirement is an inherent requirement must involve consideration as to whether a position would be essentially the same in the absence of the requirement.
[2] Qantas Airways v Christie (1998) HCA 18, [36].
[10] In such a case, the question is not whether the services of a male counsellor or support worker providing support, information and resources to women who had experienced sexual or domestic violence from men are essentially the same as the same type of services provided by a female counsellor or support worker. It would be clearly open to argument that the services delivered by the worker are the same.
[11] The appropriate question in my view is whether the effect on the recipient of those services would vary depending on the sex of the worker and whether the presence of a male worker would trigger adverse emotional responses and prevent the development of empathy, comfort and trust that is sought to be engendered by counselling and support services in times of emotional fragility. It is in my view quite readily established that male workers or volunteers providing services at WCAA would be likely to trigger distress and discomfort in women seeking support after experiencing violence from men. A service where support and counselling is being provided by either sex to women is quite different from a service where support and counselling is being provided solely by women for women in circumstances where the recipients of the services have experienced gender based violence.
[12] I am satisfied that it is a genuine occupational requirement for workers and volunteers at WCAA to be women. I conclude that section 25 would be available to WCAA as a defence to complaints of discrimination based on the attribute of sex in the work area.
[13] QCAT and the former tribunal have in earlier cases determined that an exemption is not necessary if an applicant would have a valid defence against complaints of discriminatory behaviour based on the attribute in question. If I am wrong in my view that section 25 would provide a valid defence in this case, I have considered whether any other specific exemption would be available to WCAA to excuse what would otherwise be discriminatory conduct apart from the general exemption under section 113. If a specific exemption would be available to WCAA, then a general exemption would not be necessary.
[14] The Anti-Discrimination Act 1991 provides that it is not unlawful to discriminate if an exemption in sections 104 to 113 applies. Section 104 of that Act provides 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.
[15] I am satisfied that providing counselling, support services and a safe environment to gather to women who have experienced violence from men is for the benefit of women (i.e. for a group of people identified by the attribute of their sex) and that providing these services is not inconsistent with the Anti-Discrimination Act 1991. Indeed, one of the examples given in the Act as to how section 104 can be applied is about lawfully providing services solely to women who have been the subject of domestic violence.
[16] The Act recognises that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society.[3] I am satisfied that the Anti-Discrimination Act 1991 does seek to reflect the aspirations and needs of our society by inter alia providing specific exemption in section 104 to organisations such as WCAA from liability for conduct that promotes and furthers the welfare of women who have experienced violence from men.
[3] Section 6(b) of the Anti-Discrimination Act 1991.
[17] On the basis of my conclusions that a specific exemption and a valid defence would remove any liability that WCAA would otherwise encounter for providing its services to women only through Brisbane Rape and Incest Survivors Support Centre and Women’s House Shelta, I am satisfied that a general exemption from liability under section 113 is not necessary.
[18] I accordingly dismiss the application for a general exemption.
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