River Glen Haven Over 50s Village
[2021] QCAT 26
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- Unreported Judgment
- River Glen Haven Over 50s Village[2021] QCAT 26
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River Glen Haven Over 50s Village[2021] QCAT 26
River Glen Haven Over 50s Village[2021] QCAT 26
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, Re 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
- [1]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.
- [2]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.
- [3]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]
- [4]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.
- [5]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 other further information was received.
- [6]By directions dated 8 April 2020 the applicant was directed to file submissions setting out:
- (a)The provision of the AD Act from which an exemption is sought;
- (b)The period for which exemption is sought;
- (c)The person, people or class of people for whom the exemption is sought; and
- (d)The grounds on which the application is made; …
- [7]The directions also required Mr Hajdu to file a statement to accompany the above submissions setting out detailed information in support of the application for exemption.
- [8]On 21 April 2020 Mr Hajdu filed another copy of his original application and a brief letter which stated:
Received your letter dated 8th April 2020.
I am not sure of the act to which my enquiry was made.
The main reason for the application is: To be able to advertise the village as an over 50s village which I was informed that this is now illegal and that an application could be made to keep doing so.
We have been advertising for this village for over 28 years. It is advertised in Street displays as well as on our bus and all online advertising matter etc. This would be very expensive should it have to be changed. We advertise this way so as to attract mature aged persons.
We would like to keep this on going as the majority of residents are over that age and came here for that reason.
Could you please advise what steps I have to take from here.
Regards
Peter Hajdu (Manager)
- [9]On 9 May 2020 Mr Hajdu again filed a copy of his original application and another letter which stated:
River Glen Village – has always been classed as an “over 50 Village” as do many other villages in Logan. It is not a retirement village and not for the younger generation, as most people who come here are either retired or nearing that time and they don’t want young families with children, as they come here for peace and a quiet life style.
We have bus and street signage as well as other advertising using the word “Over 50s”.
We have had some people come in nearing that age and we have never discriminated against that.
It is a mature aged village and that is why the residents came here.
1.The time period for the application is for as long as possible.
2.Over 50 aged persons (working or retired)
3.Facilities and lifestyle is only suitable for over 50 age group.
- [10]The QHRC was directed to file any material in response by 3 June 2020. No further material was filed by the QHRC.
Consideration
- [11]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’.
- [12]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)’.
- [13]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.
- (a)
- [14]According to the QHRC records, there were no current complaints against any of those entities.
- [15]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”.
- [16]Section 127 provides:
127DISCRIMINATORY 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.
- [17]The Commissioner can prosecute a contravention of s 127.[2]
- [18]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.
- [19]The issue is whether the applicant should be exempted from the operation of s 127.
- [20]In Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust[4] I considered the nature and extent of the statutory discretion in s 113. There I made the following observations:
- (a)The granting of an exemption is discretionary.
- (b)There are no express criteria for the exercise of the discretion.
- (c)
- (d)Although the exercise of the discretion is not confined, and acknowledging the risks in applying a “self-imposed framework” that may not “embrace all considerations which could possibly fall within the objects, scope and purpose of the Act”,[7] a number of decisions have outlined considerations which may be relevant to the exercise of the discretion. They include: whether the exemption is necessary; whether it is appropriate and reasonable to grant the exemption and whether the exemption is in the community interest.
- (a)
- [21]The grounds in support of the application, namely that the applicant has been advertising like this for years, that the advertising attracts their desired demographic and it would be inconvenient and costly to amend their advertising material, do not persuade me that an exemption should be granted.
- [22]In any event, in my view, although it is necessary for the applicant to obtain an exemption from s 127, it is a strong discretionary factor against the grant that the underlying conduct has not also been the subject of an exemption. This is because the Tribunal would, in effect, be sanctioning the advertising of unlawful discriminatory conduct. I note that in previous decisions where exemptions from s 127 have been granted it has only been in circumstances where an exemption has also been granted, in effect, to permit the discriminatory conduct the subject of the advertising.[8]
- [23]It is not clear from the material filed whether the applicant has an exemption from the operation of ss 82 and 83 in relation to the terms upon which it offers accommodation or of any other provision in Chapter 2, Division 8 in relation to discrimination in the accommodation area. In the absence of any indication to the contrary, I have assumed that no exemption exists. The appropriate course for the applicant, were it minded to pursue this course, would be to apply for an exemption from the provisions which prohibit discrimination in the terms on which accommodation is offered, renewed or extended on the basis of age, namely, an exemption from ss 82 and 83 of the AD Act[9] coupled with an application for an exemption from s 127. That application, to have any chance of success, would need to be properly made with appropriate, detailed submissions to support it.
- [24]That said, I note that even if I was to infer from the application that exemption was also sought from s 82, I am not in a position to determine such an application, given the paucity of information and submissions provided by the applicant in support of the application.
- [25]Accordingly, I dismiss the application. Given my decision, there is no need to consider the submissions made by the QHRC in relation to the application of the Human Rights Act 2019 (Qld).
Footnotes
[1]AD Act, s 113(2).
[2]AD Act, s 226.
[3]AD Act, s 7(f), s 83.
[4][2017] QCAT 323.
[5]FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 368 per Mason J; Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997, 1030 per Lord Reid.
[6]Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875, [58] per French J.
[7]Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261, [48].
[8]Boeing Australian Holdings Pty Ltd & related entities [2003] QADT 21; Exemption application re Annette’s Network [2006] QADT 29; Exemption application re Beach House Group Pty Ltd [2006] QADT 30; YFS Ltd [2015] QCAT 295; Re Department of Justice and Attorney-General [2016] QCAT 537; Re Ipswich City Council [2020] QIRC 194; Re Protech Personnel Pty Ltd [2019] QIRC 175; Re Kalwun Development Corporation Limited [2019] QIRC 141.
[9]See for example Re Brisbane Housing Company Ltd (Greensquare Close) [2018] QCAT 81.