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Sunshine Coast Regional Council[2021] QCAT 198

Sunshine Coast Regional Council[2021] QCAT 198

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sunshine Coast Regional Council [2021] QCAT 198

PARTIES:

Sunshine coast regional council

(applicant)

APPLICATION NO/S:

ADL043-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

23 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. The Queensland Civil and Administrative Tribunal has jurisdiction to determine the application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy.
  2. The application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy should not be transferred to the Queensland Industrial Relations Commission.
  3. The matter is to be set for a Directions Hearing at a time and date to be advised by the Registry.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL RELATIONS COMMISSION – JURISDICTION – where an application was made by a Regional Council for exemption from the Anti-Discrimination Act 1991 (Qld) – where a preliminary question was raised as to the jurisdiction of the Queensland Civil and Administrative Tribunal to hear the application – whether the application should be transferred to the Industrial Relations Commission (Queensland)

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – OTHER MATTERS – where a Regional Council intends to introduce ‘Identified Tourism’ permits which are proposed to be only made available to Aboriginal and Torres Strait Islander people

Anti-Discrimination Act 1991 (Qld) s 7, s 21, s 22, s 113AA, s 174A, s 174B. s 174C, s 193A, sch 1

Industrial Relations Bill 2016 cl 1097, cl 1098, cl 1099

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 52

APPEARANCES &

REPRESENTATION:

 

Applicant:

Sunshine Coast Regional Council Legal Services

Respondent:

Principal Lawyer QHRC

 

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

  1. [1]
    The Sunshine Coast Regional Council (‘the Council’) filed an ‘Application for exemption or renewal of exemption from Anti–Discrimination Act 1991’ in the Tribunal on 27 July 2020.
  2. [2]
    A question has arisen as to the jurisdiction of the Queensland Civil and Administrative Tribunal (‘QCAT’) to deal with this matter, and as to whether it should be transferred to the Queensland Industrial Relations Commission (‘the QIRC’).
  3. [3]
    A direction was made by QCAT on 8 September 2020 that the issue of whether the Tribunal has jurisdiction to determine the application, and whether the application should be transferred to the QIRC, is to be determined on the papers. These reasons are the determination of that issue.

The application

  1. [4]
    The application sought an exemption for five years from the operation of sections of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).
  2. [5]
    The reason stated for the application was as follows:[1]

Council intends to amend its Community Land and Complimentary Commercial Activity Policy to introduce an ‘Identified Tourism’ permit category. Identified tourism permits are proposed to be only made available to Aboriginal and Torres Strait Islander people.

  1. [6]
    The Council noted the sections from which an exemption was sought as follows:

Council is aware that the proposed policy amendments are in breach of the following sections of the Anti-Discrimination Act 1991 (Qld):

  1. Section 7 – discrimination on the basis of certain attributes (race);
  2. Section 21 – discrimination by qualifying body in pre--qualification area; and
  3. Section 22 – discrimination by qualifying body in qualification area
  1. [7]
    The basis upon which the Council sought an exemption was set out as follows:

Council seeks an exemption from the operation of these provisions in respect of the amendments proposed to the policy on the grounds that:

  1. There are no non-discriminatory ways of achieving the purpose for which exemption is sought.

 This is because the proposed identified tourism permits are being introduced to expand aboriginal and Torres Strait Islander aspects of cultural tourism in the Sunshine Coast region and enhance the economic prosperity of aboriginal and Torres Strait Islander people.

  1. It is reasonable to grant the exemption.

 In the circumstances, Council is of the view that it is reasonable for the exemption to be granted on the basis that an exemption is in the community interest.

  1. The exemption is in the community interest.

 The permits will enhance the economic prosperity of Aboriginal and Torres Strait Islander people and organisations across the Sunshine Coast region and contribute towards ‘closing the gap’ in education, employment, health, social and economic issues between Aboriginal and Torres Strait Islander peoples and the broader Australian community in accordance with Sunshine Coast Regional Council’s Reconciliation Action Plan.

Submissions of the Queensland Human Rights Commission

  1. [8]
    The Tribunal forwarded a copy of the Application to the Queensland Human Rights Commission on 5 August 2020 (‘the QHRC’) and asked whether the QHRC wished to make any submissions about the process for considering the application and/or the substance of the application.
  2. [9]
    The principal lawyer for the QHRC made submissions in an email dated 31 August 2020. It is convenient to set out the substance of that email:[2]

The applicant seeks an exemption from the operation of sections 21 and 22 of the Anti-Discrimination Act 1991 in respect of the attribute of race in section 7(g) of the Act.

Sections 21 and 22 are contained in Chapter 2, Part 4, Division 1, Subdivision 1 of the Anti-Discrimination Act 1991, which covers prohibitions in work and work-related areas.

The Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction under section 174A of the Anti-Discrimination Act 1991 to grant exemptions, other than in relation to work-related matters. ‘Work-related matters’ is defined in the Dictionary to the Anti-Discrimination Act 1991 as ‘a complaint or other matter relating to, or including work or the work-related area’.

As the application relates to the work-related area, the QCAT does not have jurisdiction to deal with it, and it should have been made to the Queensland Industrial Relations Commission (QIRC).

The legislative intent is for the QCAT to transfer work-related exemption applications to the QIRC. Section 113AA of the Anti-Discrimination Act 1991 provides for the transfer from the QIRC to the QCAT of an application for an exemption under section 113 that is not a work-related matter. The note to section 113AA(1) says ‘For an application made to QCAT, see the QCAT Act section 52 in relation to the power to transfer the application’.

I understand the applicant does not agree that the application is a work-related matter.

I request that you refer the matter to a QCAT member for consideration of ordering a transfer of the application to the QIRC.

Submissions of the Council

  1. [10]
    The Council filed submissions on 25 September 2020. They referred to the definitions of ‘work’ and ‘work-related matter’ in the Act and submitted that they do not cover all matters, as follows:[3]

The definitions of ‘work’ and ‘work-related matter’ do not expressly refer to all matters in Chapter 2, Part 4, Division 1, Subdivision 1 of the ADA. Accordingly sections 21 and 22 of the ADA can relate to matters other than work-related matters.

The application relates to the creation of a permit category by Council for the commercial use of Council owned land and accordingly, is not a ‘work-related matter’ for the purposes of section 113 of the Act and should be considered [by] QCAT.

In the alternative, QCAT should least consider that part of the application which seeks an exemption from section 7 of the ADA.

Discussion

  1. [11]
    The Council filed a copy of the Community Land and Complimentary Commercial Activity Policy which it endorsed on 18 May 2017. The purpose of the policy was stated as follows:[4]

The purpose of this policy is to outline the framework and principles of community land for commercial Activities. This policy ensures that community use remains paramount, while allowing for the operation of commercial Activities in circumstances that also provide a benefit to the community.

  1. [12]
    The policy outcome was stated as follows:

The outcome of this policy is that any commercial Activity on community land is complimentary to the land’s primary purpose of community use and limited to a level that provides benefits to the community.

  1. [13]
    The Council proposes to include a permit category of ‘Identified Tourism’ within the Community Land and Complimentary Commercial Activity Policy for indigenous cultural tourism business Activities that occur on traditional Country of the Kabi Peoples and Jinibara Peoples, to increase the visibility and accessibility of indigenous culture on the Sunshine Coast.[5]
  2. [14]
    The types of cultural tourism that are discussed in the proposal are indigenous tourism offerings that would meet the needs of the region’s target visitor markets with particular reference to indigenous tourism experiences that are marketed internationally by Tourism Australia and Tourism Events Queensland.
  3. [15]
    Research referred to in a report to the Council indicates that it is a common attribute of indigenous tourism experiences that the business is majority or entirely owned by an Indigenous Australian.[6]
  4. [16]
    Examples of the types of nature-based indigenous experiences that are promoted to high-value independent travellers in international markets are:[7]

nature and wildlife educational tours at sites of environmental significance

cultural education tours at sites of historical significance, including visiting ancient rock art sites

cultural education classes including art classes, toolmaking and weaving classes, instrument playing classes

culinary experiences including guided bush tucker walks and outback dining experiences

Active adventures including kayaking, quad-biking, hiking, fishing, searching for mud crabs, snorkelling

immersive journeys and experiences, typically involving participation within traditional cultural ceremonies

  1. [17]
    Section 113(1) of the Act provides that QCAT on application by a person may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.
  2. [18]
    Section 113(2) of the Act requires QCAT to give the Human Rights Commissioner a copy of the application and material filed in support of it, and have regard to any submission made by the Human Rights Commissioner on the application.
  3. [19]
    Section 174A(b) provides that QCAT has the function to grant exemptions from the Act, other than in relation to ‘work-related matters’.
  4. [20]
    The expression ‘work-related matter’ is defined in Schedule 1 of the Act as follows:

work-related matter means a complaint or other matter relating to, or including, work or the work-related area.

  1. [21]
    The expression ‘work’ is defined in Schedule 1 of the Act as follows:

work includes –

  1. (a)
    work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment); and
  2. (b)
    work under a contract for services; and
  3. (c)
    work remunerated in whole or in part on a Commission basis; and
  4. (d)
    work under a statutory appointment; and
  5. (e)
    work under a work experience arrangement within the meaning of the Education (Work Experience) Act 1996, section 4; and

(ea)  work under a vocational placement; and

  1. (f)
    work on a voluntary or unpaid basis; and
  2. (g)
    work by a person with an impairment in a sheltered workshop, whether on a paid basis (including a token remuneration or allowance) or an unpaid basis; and
  3. (h)
    work under a guidance program, an apprenticeship training program or other occupational training or retraining program.
  1. [22]
    Section 7(g) of the Act prohibits discrimination on the basis of the attribute of race.
  2. [23]
    Section 21 of the Act prohibits discrimination in prequalification as follows:

21 Discrimination by qualifying body in pre-qualification area

A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate –

  1. (a)
    in granting, renewing or extending a qualification or authorisation of failing to do so; or
  2. (b)
    in the terms on which a qualification or authorisation is granted, renewed or extended.
  1. [24]
    Section 22 of the Act prohibits discrimination in qualification as follows:

22 Discrimination by qualifying body in qualification area

A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate against another person-

  1. (a)
    in any variation of the terms on which a qualification or authorisation was granted, renewed or extended; or
  2. (b)
    in revoking or withdrawing a qualification or authorisation or failing to do so; or
  3. (c)
    by treating the other person unfavourably in any way in connection with the grant, renewal or extension of a qualification or authorisation.
  1. [25]
    Section 174B of the Act provides for the functions of the QIRC and provides that one of the functions is to grant exemptions from the Act in relation to ‘work-related matters’.
  2. [26]
    Section 193A of the Act provides for the transfer of complaints from the QIRC to QCAT if a complaint is referred to the QIRC and the QIRC considers a complaint includes a matter that is not a work related matter, that the QIRC may by order transfer the complaint to QCAT.
  3. [27]
    There is no corresponding section of the Act which explicitly provides in reverse for the transfer of complaints from QCAT to the QIRC but there is a note to section 193A(1) of the Act which refers to transfer under the QCAT Act as follows:

For a complaint referred to QCAT, see the QCAT Act, section 52 in relation to the power to transfer the complaint.

  1. [28]
    Section 52(2) of the QCAT Act provides as follows:

52 Transfer to a more appropriate forum

…

  1. (2)
    If the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the Tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to –
  1. (a)
    a court of competent jurisdiction; or
  2. (b)
    another Tribunal or entity having jurisdiction to deal with the matter or matters.
  1. [29]
    The preliminary issue for determination in these Reasons is whether consideration of the granting of an exemption under section 113 of the Act in relation to the operation of sections 21 and 22 of the Act in respect of the attribute of ‘race’ in this matter, should be transferred to the QIRC on the basis of lack of jurisdiction of QCAT to deal with the matter.
  2. [30]
    When the Act was first introduced in 1991, QCAT had jurisdiction to deal with all matters arising under the Act. An amending Act in 2016 introduced sections 174A, 174B and 174C.
  3. [31]
    The amending Act was the Industrial Relations Act 2016, which replaced Chapter 7, part 2, division 1A of the Anti-Discrimination Act 1991.
  4. [32]
    In delivering the second reading speech, introducing the relevant Industrial Relations Bill 2016, the Minister, the Hon G. Grace, made the following comments in relation to the change of jurisdiction of the Tribunal:[8]

Thirdly, the bill strengthens and expands the role of Queensland Industrial Tribunals in line again with the recommendations from the report of the industrial relations reference group. Under the bill, the QIRC will have exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991. These matters will go to the Anti-Discrimination Commission in the first instance but, if they cannot be resolved through conciliation and they are work-related, the matter will be referred to the Queensland Industrial Relations Commission.

  1. [33]
    The explanatory notes for the Industrial Relations Bill 2016 describe clause 1097 1098 and clause 1099 as follows:[9]

Clause 1097 amends section 166 (Complainant may obtain referral of unconciliated complaint) to enable complainants to require the Anti-Discrimination Commissioner to refer a complaint that is work-related or includes a work-related matter to the Commission. A notice also inserted to refer to the power of the Commission under new section 193A inserted by inserted by clause 1102.

Section 166 (5) is also amended to replace a reference to ‘the QCAT Act’ with a reference to ‘relevant Tribunal Act’.

Clause 1098 amends section 167 (complainant or respondent may seek referral after 6 months) to enable a referral to the Commission if the complaint is work-related or includes a work-related matter. A notice also inserted to refer to the power of the Commission under new section 193A inserted by clause 1102.

…

Clause 1099 amends Part 2 of Chapter 7 of the Act to replace Division 1A which sets out the powers and functions of the Tribunal.

  1. [34]
    No authorities have been cited in the submissions as to the interpretation of the expressions ‘work’ and ‘work-related’, to give any guidance as to previous consideration of the meaning of those expressions in this context.
  2. [35]
    The QHRC attributes a very wide application to the expressions ‘work’ and ’work-related’. If the interpretation of the Commission is accepted, the result would seem to be that any matter which in any way relates to work would not be within the jurisdiction of QCAT.
  3. [36]
    The actions which are described in section 15 of the Act as to ‘discrimination in work area’ all relate to actions as to the conduct of work within the workplace itself:

15 Discrimination in work area

  1. (1)
    A person must not discriminate –
  1. (a)
    in any variation of the terms of work; or
  2. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  3. (c)
    in dismissing a worker; or
  4. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  5. (e)
    in developing the scope or range of such a program; or
  6. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. [37]
    The Minister’s comments in her second reading speech refer to ‘workplace related’ anti-discrimination matters. This indicates a close relationship between the workplace and the anti-discrimination matter.
  2. [38]
    The expression ‘workplace related’ does not appear in the Anti-Discrimination Act  1991 as amended, only the expressions ‘work’ and ‘work-related’.
  3. [39]
    It would appear clear from the Minister’s comments that the intent of the amending legislation was to put workplace disputes within the jurisdiction of the QIRC.
  4. [40]
    Section 21 of the Act, which prohibits discrimination by a qualifying body in a pre-qualification area, refers to a person who has power to grant an authorisation that is needed for ‘the carrying on of a trade or business’.
  5. [41]
    I consider that the proposed ’identified tourism’ permit is an authorisation in relation to ‘the carrying on of a trade or business’.
  6. [42]
    It is a further step to then consider the conduct of the workplace within a trade or business.
  7. [43]
    I consider that the expressions ‘work’ and ‘work-related’ in the Act, are intended to refer to workplace related anti-discrimination as referred to by the Minister in her second reading speech.
  8. [44]
    An ‘identified tourism’ authorisation is distinct from consideration of actions within the subsequent workplace operating under that authorisation.
  9. [45]
    I consider that it is extending the application of the expressions  ‘work’ and ‘work-related’ too widely to apply them to any situation which may subsequently involve the conduct of work.
  10. [46]
    I consider that a linkage would need to be shown as to discrimination in the workplace for the jurisdiction of anti-discrimination matters to lie with the QIRC.
  11. [47]
    In this matter, the Council is seeking to establish a policy which allows it to allocate land or use of Council commercial premises to an indigenous business organisation, on the basis of race, for the carrying on of a trade or business. That is a commercial policy which relates to the allocation of Council resources for the conduct of trade or business to establish a workplace. It is not a policy as to employment or industrial relations in the conduct of the workplace operated by the enterprise.
  12. [48]
    I consider that the authorisation envisaged by the Council is not a policy that is related to employment or industrial relations matters in the conduct of the workplace, and is not the type of action that was envisaged by the Industrial Relations Act 2016 as being removed from the jurisdiction of QCAT.
  13. [49]
    I answer the preliminary question as follows –
    1. (a)
      The Queensland Civil and Administrative Tribunal has jurisdiction to determine the application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy.
    2. (b)
      The application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy should not be transferred to the Queensland Industrial Relations Commission.
  14. [50]
    The matter should now be set for a Directions Hearing for the making of directions as to the further conduct of the matter in this Tribunal.

Footnotes

[1]Application filed 27 July 2020, Annexure A.

[2]Email Queensland Human Rights Commission  to QCAT, 31 August 2020.

[3]Submissions of Sunshine Coast Regional Council, 25 September 2020.

[4]Sunshine Coast Council Community Land and Complimentary Commercial Activity Policy p. 1.

[5]Report to Sunshine Coast Regional Council, ordinary meeting agenda 14 November 2019, p 155.

[6]Ibid p.158.

[7]Ibid.

[8]Queensland, Parliamentary Debates, Legislative Assembly, 29 November 2016, 4663 (Grace Grace).

[9]Explanatory notes p 143

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council

  • Shortened Case Name:

    Sunshine Coast Regional Council

  • MNC:

    [2021] QCAT 198

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    23 Feb 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Sunshine Coast Regional Council [No 2] [2021] QCAT 4391 citation
1

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