Palmpoint Pty Ltd[2016] QCAT 419

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. [1]
   On two previous occasions, the Tribunal has exempted Palmpoint Pty Ltd from the operation of the Anti-Discrimination Act 1991 (Qld) to allow it to discriminate on the basis of age for its activities at Bribie Island Village and Island Breeze Resort. On each occasion, Palmpoint was exempted for a period of five years.^[1]
2. [2]
   Palmpoint has applied to the Tribunal to extend its exemption from the operation of the Act for a further period of five years. Unlike the previous occasions, the Anti-Discrimination Commission Queensland considers an exemption is no longer necessary.

What are the relevant considerations?

3. [3]
   The Tribunal may grant an exemption from the operation of a specified provision of the Act.^[2] Relevant considerations^[3] not in dispute were:

   1. (a)
      Palmpoint has operated the accommodation facility as a residential village with the same facilities and services for persons over 50 years of age since at least 2006;
   2. (b)
      The village has 283 sites;
   3. (c)
      Most of the 470 residents are aged over 68 years;
   4. (d)
      Community facilities include: security fences; security key coded electric sliding gates; on-site managers; nightly security patrols; two swimming pools with rails and easy access for the elderly and infirm; a spa and sauna; two leisure centres with a dance floor, stage, pool tables, indoor bowls, exercise rooms, television and video and outdoor entertainment and barbecue areas; cinema; bar; and landscaped aquatic area; and
   5. (e)
      The village is centrally located on Bribie Island close to shops and community and recreational facilities attractive to retirees.

Has there been any change in circumstances?

4. [4]
   The Commission stated that it had re-considered its position to not oppose applications by park operators “in light of reports of the increasing demand for affordable housing and that residential parks are becoming de facto retirement villages and seniors’ lifestyle resorts”.^[4] Although the Commission referred to reports by the Senate and the Department of Housing relating to housing affordability,^[5] unfortunately the Commission did not provide evidence on the current availability of affordable housing specifically on Bribie Island. 
5. [5]
   Palmpoint submitted that Bribie Island and surrounding areas has ample accommodation and the Moreton Bay Regional Council is experiencing rapid development to ensure continuing provision of affordable housing.^[6] It added that 30 percent of all housing on Bribie Island comprised rental properties, indicating no shortage of rental accommodation on Bribie Island.^[7]
6. [6]
   When exempting Palmpoint on the most recent occasion, the Tribunal accepted that accommodation that suits the availability of younger persons is readily available in the area.^[8] The Tribunal found that persons aged under 50 years would not be disadvantaged by an exemption.^[9] In the absence of evidence to show any decline in the availability of affordable housing specifically on Bribie Island, there is no basis to depart from the Tribunal’s previous finding of sufficient accommodation in the area for younger persons.
7. [7]
   The Commission also expressed concern that the only information about accessibility for seniors is rails on swimming pools. However, the Tribunal has previously accepted Palmpoint’s evidence and found the facilities meet the needs and requirements of seniors.^[10] Palmpoint also provided additional evidence of many homes with disability aids, wheelchair and scooter ramps and wheelchair access to community halls, the office building and community bathroom facilities.^[11]
8. [8]
   The Commission also cited Ghostgum Developments Pty Ltd^[12] to show that an exemption was not necessary because the village is already particularly attractive to retirees. However, unlike Ghostgum the Tribunal has already accepted a need to exempt Palmpoint on two previous occasions. On the most recent occasion, the Tribunal specifically averred to the needs of the majority of residents aged over 65 years and that restricting accommodation and use of facilities to persons aged 50 years and over would be of benefit to persons within that demographic.^[13]  
9. [9]
   The Commission also queried whether any public interest is served by “quarantining” older people in a community away from the general population and whether Palmpoint could restrict residents to people aged over 55 years in a non-discriminatory way by seeking to bring the village within the provisions of the Retirement Villages Act 1999 (Qld).
10. [10]
    Certainly, recent Tribunal decisions have emphasised non-discriminatory ways to achieve the same result in shifting away from granting exemptions.^[14] The Tribunal has in particular refused applications for exemption that effectively seek de facto retirement village status without the commensurate responsibilities:

Queensland has a sophisticated regime for creating residential complexes that cater for the needs of its older citizens. The regime is expensive to set up and expensive to run, but that is because it provides residents with certain protections. The residents of this Village want the benefit of a retirement village without the burden. That is not a valid reason for an exemption under the Act. There is a non-discriminatory way to achieve the purpose for which the exemption is sought and that is to bring the village within the Retirement Villages Act 1991 (Qld).^[15]

11. [11]
    However, unlike these recent Tribunal decisions, the distinguishing feature of Palmpoint is that the Tribunal has exempted it on two previous occasions. The Tribunal has previously accepted that the proposed exemption does not conflict with the purpose of the Act and that the community would not be disadvantaged.
12. [12]
    Moreover, residents have purchased into the village on the understanding that it is exempt and therefore restricted to residents aged over 50 years. I accept the Commission’s submission that exemptions are not granted for more than five years at a time and should not be used for a permanent arrangement or to circumvent existing legislation or government policy.^[16]
13. [13]
    However, it is undeniable that people have arranged their affairs and made significant investments in the belief that the village caters only for residents aged over 50 years. I therefore do not consider it would be fair to residents to not grant a further exemption because of a recent shift in emphasis of Tribunal decisions and after exemptions have been granted on two previous occasions, without proper notice.
14. [14]
    Nevertheless, both Palmpoint and its residents are now on notice that the Tribunal may not grant future exemptions if other non-discriminatory ways are available to achieve the purpose of providing age specific accommodation.    

What is the appropriate Order?

15. [15]
    The appropriate Order is that Palmpoint Pty Limited is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 7 April 2016 to 6 April 2021 in respect of its activities in relation to the property known as Bribie Pines Island Village and Island Breeze Resort situated on land described as Lot 15 on SP108119, County of Canning, Parish of Woorim.