Sunshine Coast Regional Council [No 2] - [2021] QCAT 439

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sunshine Coast Regional Council [No 2] [2021] QCAT 439

PARTIES: SUNSHINE COAST REGIONAL COUNCIL

(applicant)

APPLICATION NO:

ADL043-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

22 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

The application for an exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) filed by the applicant on 27 July 2020 is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – LEGISLATION – GENERALLY – application for exemption from application of Anti-Discrimination Act 1991 (Qld) – proposed policy to allow grant of tourism business permits to Aboriginal and Torres Strait Islander persons only.

Acts Interpretation Act 1954 (Qld), s 14D
Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 21, s 22,
s 81, s 104, s 113, s 174A, s 174C, schedule 1

Human Rights Act 2019 (Qld), Preamble, s 5, s 7, s 8, s 9,
s 13, s 15, s 28, s 48, s 58, s 63, schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164.

Downer EDI Mining [2013] QCATA 276

Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21
Opinion re: Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2

Sundale Limited [2019] QCAT 83.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).

REASONS FOR DECISION

Introduction

The Sunshine Coast Regional Council (the Council) has applied to the Tribunal for exemption from application of the Anti-Discrimination Act 1991 (Qld) (the AD Act) under s 113 of that Act, concerning a proposed policy, for a period of five years. The policy would have the effect of allowing the Council to grant permits to conduct certain tourism businesses on Council land, solely to Aboriginal and Torres Strait Islander people (the Proposed Policy).
For reasons which follow, my decision is to dismiss the application because an exemption is unnecessary to implement the Proposed Policy. Section 104 of the AD Act would allow implementation of the Proposed Policy as a welfare measure.

Background – legislative basis for the application

One of the purposes of the AD Act, contained in s 6(1), is to:
… promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.
Section 6(2) states that the purpose is to be achieved by prohibiting discrimination that is:
(a) on a ground set out in chapter 2, part 2, in which s 7 lists attributes on which the Act prohibits discrimination, including race; and
(b) of a type set out in chapter 2, part 3 (direct or indirect discrimination); and
(c) in an area of activity set out in chapter 2, part 4, which relevantly includes s 21 and s 22;
unless an exemption set out in chapter 2, part 4 or 5 applies.
Section 113(1) of the AD Act contained in chapter…

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: [2021] QCAT 439
Decision Date

CaseChat Overview and Summary

The Sunshine Coast Regional Council applied for an exemption from the Anti-Discrimination Act 1991 (Qld) (AD Act) to implement a policy of allowing permits for tourism businesses on Council land only to Aboriginal and Torres Strait Islander people. The Tribunal dismissed the application, finding that the exemption was not necessary because the proposed policy could be implemented under a different exemption in the AD Act. The Tribunal considered the Boeing criteria for exemption and the application of the Human Rights Act 2019 (Qld) (HR Act) to the issue. The Tribunal concluded that the exemption under s 104 of the AD Act, which allows 'welfare measures', would apply to the proposed policy, so an exemption under s 113 was not needed. The proposed policy would provide a benefit to Indigenous people, which was not inconsistent with the AD Act. The limitation on the human right to equality before the law in the HR Act was reasonable and justifiable under the HR Act. Therefore, the application for exemption was dismissed.

Orders