Terrace-Haven Pty Ltd - [2022] QCAT 23

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Terrace-Haven Pty Ltd [2022] QCAT 23

PARTIES: TERRACE-HAVEN PTY LTD

(applicant)

APPLICATION NO:

ADL062-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

14 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

1. For a period of five years from the date of this decision, under s 113 of the Anti-Discrimination Act 1991 (Qld), Terrace-Haven Pty Ltd (Terrace-Haven), is exempt from the following provisions of the Anti-Discrimination Act for the purposes described below:

(a) Section 7(f), so that Terrace-Haven may lawfully place a restriction on the age of individuals who:

(i)     purchase a lot in the Terrace-Haven Complex;

(ii)   rent a unit in the Terrace-Haven Complex; and

(iii)     reside in a lot in the Terrace-Haven Complex,

such that only individuals over the age of 50 may purchase a lot, rent a unit or reside in a lot at the Terrace-Haven Complex.

(b) Sections 45 and 46, so that Terrace-Haven may lawfully place a restriction on the age of individuals who do, and might in the future, receive goods and services at the Terrace-Haven Complex.

(c) Sections 76 and 77, so that Terrace-Haven may lawfully place a restriction on the age of individuals who wish to purchase a lot in the Terrace-Haven Complex. That is, a restriction that residents may only sell their lot in the Terrace-Haven Complex to a person over the age of 50.

(d) Sections 81, 82 and 83, so that Terrace-Haven may lawfully place restrictions on the age of individuals who:

(i)     reside in a unit in the Terrace-Haven Complex; or

(ii)   rent accommodation in the Terrace-Haven Complex,

such that only individuals over the age of 50 may reside in or rent a unit at the Terrace-Haven Complex.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – LEGISLATION – GENERALLY – application for exemption from application of Anti-Discrimination Act 1991 (Qld) – age limitation on retirement village

Acts Interpretation Act 1954 (Qld), s 14D

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 45, s 46, s 76, s 77, s 81, s 82, s 83, s 104, s 113, s 174A, s 174C, schedule 1

Body Corporate and Community Management Act 1997 (Qld), s 180

Health and Other Legislation Amendment Act 2019 (Qld)
Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld)
Housing Legislation Amendment Act 2021 (Qld)

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

Manufactured Homes (Residential Parks) Act 2003 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164
Retirement Villages Act 1988 (Qld)
Retirement Villages Act 1999 (Qld), s 5, s 7, s 8, s 10, s 14, s 16, s 26, s 63, s 63A, s 63B, s 70C, s 70D, s 70E, s 84, s 86A, s 111, s 171A

Body Corporate for Village Green (Caloundra) No. 1 CTS [2015] QCAT 101
Burleigh Town Village Pty Ltd [2017] QCAT 161

Downer EDI Mining [2013] QCATA 276

Exemption…

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: [2022] QCAT 23
Decision Date: 14 January 2022

CaseChat Overview and Summary

Terrace-Haven Pty Ltd applied to the Queensland Civil and Administrative Tribunal (QCAT) for an exemption from the Anti-Discrimination Act 1991 (Qld) to maintain an age limitation on its retirement village. The dispute hinged on whether the exemption would be compatible with human rights, as described in the Human Rights Act 2019 (Qld). The Commissioner argued that granting the exemption would limit the human rights of those under 50 to equal treatment in obtaining housing at the Complex.

The court was required to determine whether the exemption would be compatible with human rights, considering the factors set out in section 13 of the Human Rights Act. The court examined previous decisions of the Tribunal to understand how section 113 had been applied in similar cases. These decisions showed a mix of granted and refused exemptions, with a notable pattern: exemptions were more likely to be granted when the facility had a history of operating with an age restriction.

The court concluded that the Complex was analogous to cases where exemptions had been granted due to the facility’s long history of operating with an age restriction. The factors in section 13 of the Human Rights Act provided guidance on whether the limitation on the human right was reasonable and justifiable. Given the importance of the right to equality and the history of the Complex, the exemption was deemed reasonable and justifiable. Therefore, the Tribunal granted the exemption for a period of five years, allowing Terrace-Haven to maintain its age restrictions on purchasing, renting, and residing in the Complex.

Orders

Orders of the court

1. For a period of five years from the date of this decision, under s 113 of the Anti-Discrimination Act 1991 (Qld), Terrace-Haven Pty Ltd (Terrace-Haven), is exempt from the following provisions of the Anti-Discrimination Act for the purposes described below:

(a) Section 7(f), so that Terrace-Haven may lawfully place a restriction on the age of individuals who:

(i) purchase a lot in the Terrace-Haven Complex;

(ii) rent a unit in the Terrace-Haven Complex; and

(iii) reside in a lot in the Terrace-Haven Complex,

such that only individuals over the age of 50 may purchase a lot, rent a unit or reside in a lot at the Terrace-Haven Complex.

(b) Sections 45 and 46, so that Terrace-Haven may lawfully place a restriction on the age of individuals who do, and might in the future, receive goods and services at the Terrace-Haven Complex.

(c) Sections 76 and 77, so that Terrace-Haven may lawfully place a restriction on the age of individuals who wish to purchase a lot in the Terrace-Haven Complex. That is, a restriction that residents may only sell their lot in the Terrace-Haven Complex to a person over the age of 50.

(d) Sections 81, 82 and 83, so that Terrace-Haven may lawfully place restrictions on the age of individuals who:

(i) reside in a unit in the Terrace-Haven Complex; or

(ii) rent accommodation in the Terrace-Haven Complex,

such that only individuals over the age of 50 may reside in or rent a unit at the Terrace-Haven Complex.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Commissioner submits that if s 15(5) does not apply, then since grant of Terrace- Haven’s application would limit the human rights of people aged less than 50 to equal treatment under s 15 of the HR Act to obtain housing at the Complex, it would be necessary to determine whether the application of s 113 would, on the facts of this case, be compatible with human rights as described in s 13 of the HR Act. Before I do that, it is necessary to consider previous decisions of the Tribunal as referred to by Terrace- Haven and the Commissioner. These decisions may influence the application of s 13. Previous decisions of the Tribunal Both Terrace-Haven[43] and the Commissioner[44] referred to previous decisions of the Tribunal on applications for exemption under s 113 of the AD Act for accommodation exclusively for older people. The decisions reflect some applications being granted, and some being refused. However, the difference in outcome is not without rationale. [43]Cases referred to by Terrace-Haven where exemptions were granted by the Tribunal - Miami Recreational Facilities Pty Ltd [2017] QCAT 253, Re Caloundra Gardens Village Body Corporate Committee [2012] QCAT 98, and Seachange (Land) Pty Ltd and Others [2016] QCAT 519. [44]Cases referred to by the Commissioner where exemptions were refused by the Tribunal - Body Corporate for Village Green (Caloundra) No. 1 CTS [2015] QCAT 101, Ghostgum Developments Pty Ltd [2015] QCAT 500 and Savannah FNQ Developments Pty Ltd [2016] QCAT 141. Overall, applications for new exemptions where there had previously been no application for exemption,[45] or for a new facility with a proposed age restriction[46] have been refused.[47] [45]Village Green and Savannah.[46]Ghostgum.[47]An approach noted by Member Gordon in Miami Recreational Facilities Pty Ltd [2021] QCAT 378 at [2]. On the other hand, exemptions have been granted when the application is for a facility where exemptions have already been granted,[48] the facility had previously been a retirement village,[49] or for a facility which has existed with an age restriction for a lengthy period.[50] The common factor in these cases is a history of operation of a facility with an age restriction on accommodation. [48]Burleigh Town Village Pty Ltd [2017] QCAT 161, Palmpoint Pty Ltd [2016] QCAT 419, Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323, Miami Recreational Facilities. [49]Re Caloundra Gardens Village Body Corporate Committee. [50]Miami Recreational Facilities (40 years). In Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd,[51] Morrison JA of the Court of Appeal identified that the history of the resort in that case, as having been established and operating as a retirement village for many years, was a factor pointing in favour of an exemption under s 113 being granted. That history distinguished it from Village Green which never had a legal or operational structure that brought with it a retirement village regime.[52] [51][2016] QCA 19 at [126]-[135].[52]Fraser Coast at [130].

Ratio Decidendi

Legal Principle Established

The Complex operated by Terrace-Haven is analogous to the category of cases where exemptions under s 113 have been granted. It is analogous in the sense that it has had the benefit of a statutory exemption from the AD Act, under s 26 of the RV Act, but Terrace-Haven applies to the Tribunal on the basis that the protection offered by s 26 is about to end, with the same legal effect as the expiry of a temporary exemption under s 113. It has been operating for 35 years with many long-term residents aged over 50.Consideration As I have identified above, the combined effect of s 8, s 13 and s 48 of the HR Act means that an interpretation and application of s 113 of the AD Act which has the effect of limiting a human right is 'compatible with human rights' if it is reasonable and demonstrably justifiable in accordance with the factors contained in s 13. Section 13 is as follows:13 Human rights may be limited(1) A human right may be subject under law only to reasonablelimits that can be demonstrably justified in a free anddemocratic society based on human dignity, equality andfreedom.(2) In deciding whether a limit on a human right is reasonable andjustifiable as mentioned in subsection (1), the followingfactors may be relevant—(a) the nature of the human right;(b) the nature of the purpose of the limitation, includingwhether it is consistent with a free and democraticsociety based on human dignity, equality and freedom;(c) the relationship between the limitation and its purpose,including whether the limitation helps to achieve thepurpose;(d) whether there are any less restrictive and reasonablyavailable ways to achieve the purpose;(e) the importance of the purpose of the limitation;(f) the importance of preserving the human right, takinginto account the nature and extent of the limitation onthe human right;(g) the balance between the matters mentioned inparagraphs (e) and (f). (added emphasis)Because the factors contained in s 13(2)(a)-(g) are preceded by the word ‘may’, those factors are not exhaustive, but do provide guidance, relevantly to the Tribunal, on whether the relevant limit on the human right in s 15, in this case, is both reasonable and justifiable. Comparison of the Boeing criteria with the factors contained in s 13(2) reveals that the Boeing criteria (apart from the first criterion of necessity for the exemption) can be considered to fall within the scope of the factors contained in s 13(2). It may be that in considering an application for an exemption under s 113, since the commencement of the HR Act, the s 13 factors have replaced or subsumed the Boeing criteria. That would be because an application for an exemption under s 113 almost inevitably contemplates that the proposed action involves some discrimination under the AD Act and therefore a limitation to the human right of equal treatment under s 15 of the HR Act. Under s13(2)(a), the human right which is potentially limited by s 113 in this case is the right of equality before the law in s 15 of the HR Act. That is a human right of obvious importance, and not easily to be traded away.

CITATION:	Terrace-Haven Pty Ltd [2022] QCAT 23
PARTIES:	*TERRACE-HAVEN PTY LTD*
(applicant)
APPLICATION NO:	ADL062-20
MATTER TYPE:	Anti-discrimination matters
DELIVERED ON:	14 January 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Sammon
ORDERS:	1. For a period of five years from the date of this decision, under s 113 of the *Anti-Discrimination Act* 1991 (Qld), Terrace-Haven Pty Ltd (Terrace-Haven), is exempt from the following provisions of the *Anti-Discrimination Act* for the purposes described below: (a) Section 7(f), so that Terrace-Haven may lawfully place a restriction on the age of individuals who: (i) purchase a lot in the Terrace-Haven Complex; (ii) rent a unit in the Terrace-Haven Complex; and (iii) reside in a lot in the Terrace-Haven Complex, such that only individuals over the age of 50 may purchase a lot, rent a unit or reside in a lot at the Terrace-Haven Complex. (b) Sections 45 and 46, so that Terrace-Haven may lawfully place a restriction on the age of individuals who do, and might in the future, receive goods and services at the Terrace-Haven Complex. (c) Sections 76 and 77, so that Terrace-Haven may lawfully place a restriction on the age of individuals who wish to purchase a lot in the Terrace-Haven Complex. That is, a restriction that residents may only sell their lot in the Terrace-Haven Complex to a person over the age of 50. (d) Sections 81, 82 and 83, so that Terrace-Haven may lawfully place restrictions on the age of individuals who: (i) reside in a unit in the Terrace-Haven Complex; or (ii) rent accommodation in the Terrace-Haven Complex, such that only individuals over the age of 50 may reside in or rent a unit at the Terrace-Haven Complex.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION – LEGISLATION – GENERALLY – application for exemption from application of Anti-Discrimination Act 1991 (Qld) – age limitation on retirement village Acts Interpretation Act 1954 (Qld), s 14D Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 45, s 46, s 76, s 77, s 81, s 82, s 83, s 104, s 113, s 174A, s 174C, schedule 1 Body Corporate and Community Management Act 1997 (Qld), s 180 Health and Other Legislation Amendment Act 2019 (Qld) Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld) Housing Legislation Amendment Act 2021 (Qld) Human Rights Act 2019 (Qld), s 5, s 7, s 8, s 9, s 13, s 15, s 48, s 63, schedule 1 Manufactured Homes (Residential Parks) Act 2003 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164 Retirement Villages Act 1988 (Qld) Retirement Villages Act 1999 (Qld), s 5, s 7, s 8, s 10, s 14, s 16, s 26, s 63, s 63A, s 63B, s 70C, s 70D, s 70E, s 84, s 86A, s 111, s 171A Body Corporate for Village Green (Caloundra) No. 1 CTS [2015] QCAT 101 Burleigh Town Village Pty Ltd [2017] QCAT 161 Downer EDI Mining [2013] QCATA 276 Exemption…