QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
River Glen Haven Over 50s Village [2021] QCAT 26
PARTIES:
RIVER GLEN HAVEN OVER 50S VILLAGE
(applicant)
APPLICATION NO/S:
ADL056-19
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
19 January 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS:
The application for an exemption filed by the applicant on 10 September 2019 is dismissed.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION – LEGISLATION – GENERALLY - –where discrimination in advertising for accommodation based on age – where exemption sought
Anti-Discrimination Act 1991 (Qld), s 7, s 113, s 174A,
s 226Re Ipswich City Council [2020] QIRC 194
Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented by Mr P. Hajdu
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
By application filed 12 September 2019, Mr Peter Hajdu ostensibly on behalf of the River Glen Partnership applied for an exemption from the Anti-Discrimination Act 1991 (Qld) (AD Act) in these terms:
The exemption is sought for the following period of time:
We would like to get an exemption and to be able to keep our trading name River Glen Haven over 50s Village as we are operating under this name since 1992, all our advertising, stationery, street signs, vehicle signage is under that name.
We have never discriminated against anyone younger than 50 years old and we have a number of younger residents and would be very thankful if we would be able to operate under our current name for the next 3 years.
The ground on which exemption is sought:
Age discrimination.
The Tribunal, under s 174A of the AD Act has, as one of its functions, to grant exemptions from the AD Act. The Tribunal has power under s 113 of the AD Act, on application, to exempt a person, people or class of people from the operation of a specified provision of the Act.
Before deciding the application, the Tribunal must give the Queensland Human Rights Commission (QHRC) a copy of the application and a copy of the material filed in support of the application and must have regard to any submission made by the QHRC on the application, including a submission on the process for considering the application.[1]
[1]AD Act, s 113(2).
On 10 January 2020 the Tribunal emailed the Queensland Human Rights Commission (QHRC) a copy of the application. No supporting material had been filed by the applicant.
The QHRC provided its submissions to the Tribunal and to the applicant on 18 February 2020. The QHRC noted that the applicant had not provided a supporting statement as required by rule 101 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). The Tribunal wrote to the applicant on 20 February 2020 requiring a statement be provided by 12 March 2020 and attaching the submissions received from the QHRC. No statement or…
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- Case
- [2021] QCAT 26
- Decision Date
CaseChat Overview and Summary
The central legal issue revolved around whether the proposed advertisements by River Glen Haven Over 50s Village would contravene Section 127 of the Anti-Discrimination Act by indicating an intent to discriminate against persons based on age. The applicant argued that despite having no history of discrimination, the advertisement in question was not inherently discriminatory. However, the Court held that the advertisement, which explicitly targeted individuals over 50, conveyed an intention to act in a way that contravened the Act. The Court determined that the specific wording of the advertisement indicated a discriminatory intent, thus constituting a breach of Section 127.
In reaching its decision, the Court emphasised that the nature of the advertisement, rather than the applicant's past conduct, was the primary factor in determining whether Section 127 was contravened. The advertisement’s clear indication of a discriminatory intent was sufficient to constitute a breach of the Act. Consequently, the application for an exemption was denied. The Court did not provide further orders beyond the denial of the exemption request.
Orders
Orders of the court
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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
The QHRC was directed to file any material in response by 3 June 2020. No further material was filed by the QHRC.Consideration The application indicates that the application was made by Mr Hadju on behalf of River Glen Partnership/A limited partnership/ABN 60396592991 with a business name ‘River Glen Haven over 50s Village’. However, as the QHRC submits, the online records for the Australian Business Register for ABN 60 396 592 991 record the entity name as ‘Riverglen Haven Holdings Pty Ltd ACN 625 277 429 as General Partner for and on behalf of Riverglen Partnership (A limited Partnership)’. The QHRC conducted searches of its complaints records for the following names:(a)River Glen Haven;(b)Riverglen Haven Holdings Pty Ltd;(c)Riverglen Partnership. According to the QHRC records, there were no current complaints against any of those entities. Turning to the application itself. Although there has been no specified provision identified from which exemption is sought, it appears the application seeks an exemption from the operation of s 127 of the AD Act. The exemption was initially sought for a period of three (3) years but in the letter filed subsequently was sought for “as long as possible”. Section 127 provides:127 DISCRIMINATORY ADVERTISEMENTS(1) A person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act.Maximum penalty—(a) in the case of an individual—35 penalty units; or(b) in the case of a corporation—170 penalty units.(1A) To remove any doubt, subsection (1) does not apply to an advertisement so far as it advertises for a worker who is under 21 years of age, whether by specifying a particular age, a particular age group or otherwise.Example—An employer may advertise for an 18 year old sales assistant or for a 15 to 17 year old sales assistant.(2) It is a defence to a complaint made under the Act for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable precautions to prevent the publication or display happening.(3) It is an excuse to an offence against subsection (1) if the defendant took reasonable precautions to prevent the publication or display happening. The Commissioner can prosecute a contravention of s 127.[2][2]AD Act, s 226. Under the AD Act, it is unlawful to discriminate against a person on the basis of age in the terms on which accommodation is offered or by failing to accept an application for accommodation.[3] To publish or display an advertisement that describes the River Glen Haven accommodation as a facility for people over the age of 50 years would, in my view, indicate that a person intends to act in a way that contravenes the AD Act. The fact, as Mr Hajdu submits, the applicant “has never discriminated” against person near 50 years of age, is not relevant. It is the advertisement and what it conveys that matters. In my view, an advertisement in the terms described indicates that the applicant intends to contravene the Act. In my view, that is sufficient to constitute a breach of s 127.[3]AD Act, s 7(f), s 83.