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Miami Recreational Facilities Pty Ltd[2021] QCAT 378

Miami Recreational Facilities Pty Ltd[2021] QCAT 378

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Miami Recreational Facilities Pty Ltd [2021] QCAT 378

PARTIES:

miami recreational facilities pty ltd

(applicant)

APPLICATION NO/S:

ADL036-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

3 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. Miami Recreational Facilities Pty Ltd and the Bodies Corporate comprising Miami Retirement Village and their workers or agents are exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in so far as those sections apply to any act or omission at or in respect of the Miami Retirement Village Residential Complex which is discrimination on the basis of the attribute of age.
  2. Miami Recreational Facilities Pty Ltd and the Bodies Corporate comprising Miami Retirement Village and their workers or agents are also exempt from the operation of section 127 of the Anti-Discrimination Act 1991 (Qld) in so far as any advertisement indicates that a person intends to act in a way covered by paragraph 1 of this order.
  3. The Miami Retirement Village Residential Complex referred to in the above order is situated on land comprised in seven plans being GTP428, GTP530, GTP531, BUP3994, BUP 4093, BUP4130 and BUP 4291 and includes the land owned by Miami Retirement Village described as Lot 1 RP 177047.
  4. The exemption shall apply from 27 July 2020 to 26 July 2025.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the applicant seeks a renewal of an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate a residential village reserved for the over 50s – where the Queensland Human Rights Commissioner opposes the application – whether the exemption should be granted – whether the tribunal can renew an exemption retrospectively

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the tribunal is acting in an administrative capacity when deciding an application for exemption under the Anti-Discrimination Act 1991 (Qld) – whether the test to apply is now substantially in the Human Rights Act 2019 (Qld)

Anti-Discrimination Act 1991 (Qld), s 82, s 83, s 113, s 127, s 174C

Charter of Human Rights and Responsibilities Act 2016 (Vic), s 7

Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 48, s 58

Property Law Act 1974 (Qld), s 121

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 127

Retirement Villages Act 1999 (Qld), s 26

Exemption application re: Miami Recreational Facilities Pty Limited [2007] QADT 7

Exemption application re: Palmpoint Pty Ltd [2006] QADT 12

Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164

Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49

Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869

Miami Recreational Facilities Pty Ltd [2013] QCAT 635

Miami Recreational Facilities Pty Ltd [2017] QCAT 253

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Sundale Limited [2019] QCAT 83

The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380

APPEARANCES &

REPRESENTATION:

Applicant:

Michael Goodman, principal, Avanti Lawyers

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]
    Miami Recreational Facilities Pty Ltd (MRF) apply on their own behalf, and behalf of others, for a renewal of an existing exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) (ADA) which would otherwise prohibit discrimination at the Miami Retirement Village in Burleigh Waters on the Gold Coast, on the basis of age.  This is because residency at the Village is limited to those over the age of 50.  The existing exemption expired on 26 July 2020.
  2. [2]
    The scheme is self-managed under a not-for-profit leasehold model and so is outside the auspices of the Retirement Villages Act 1999 (Qld).  Although in recent years the tribunal has tended to lean against granting exemptions from age discrimination for new schemes of this type, the difference here is that the Village has been operating with its age restriction for some 40 years, and the tribunal’s last renewal of the exemption was largely because it was fair to maintain the status quo.  There is an expectation therefore, that the exemption will be renewed again.  But since the last exemption granted by the tribunal, the Human Rights Act 2019 (Qld) has come into force and the test to apply is now substantially in that Act.  So the most important question for me to address is whether it is right to maintain the status quo at the Village in the light of the new test.
  3. [3]
    The tribunal can grant an exemption from specific provisions of the ADA by section 113.  The first exemption granted to the Village was on 7 March 2007 by the former Anti-Discrimination Tribunal, for three years.[1]  A second exemption was granted by QCAT in 2010 for three years.[2]  A third exemption was granted on 21 November 2013 for three years.[3]  The most recent exemption was granted by the tribunal on 26 July 2017 for three years,[4] and therefore expired more than a year ago.  On 25 June 2020 this application for a renewal was made to the tribunal.  It is not clear from the file why the application has taken so long to be dealt with.
  4. [4]
    The application puts the argument for an exemption in a nutshell:
    1. (a)
      That the continuation of an exemption from the ADA for the attribute of age, to restrict the age of the residents of the Village to over 50 years of age, is in the community interest in providing a protected environment for our senior citizens and is a critical factor in providing suitable accommodation for that demographic. 
    2. (b)
      Such a protected environment is consistent with government policy to allow such persons to remain ‘in their home’ with external resources.
    3. (c)
      Such an exemption is justified to exempt the Village from what would otherwise be discrimination, having due regard to the important issue of preventing discrimination.
    4. (d)
      That senior citizens defined in the Application as being residents over the age of 50 years, require a protected environment to create a positive safe and friendly environment of like-minded individuals at the same stage of life.
    5. (e)
      That the protected environment for this demographic which has been in place for the last 40 years and should be allowed to continue, is in the interest of that demographic and the community generally.
    6. (f)
      That the residents have bought into the Village on the basis of a protected retirement village environment.
  5. [5]
    The application is supported by evidence and submissions. 
  6. [6]
    It is said that the application is made for the direct benefit of the residents, but also indirectly for benefit of the families of the residents who know that their loved ones are living in a cost effective, safe, positive and friendly, age-appropriate environment, in an independent and dignified manner in their retirement stage of life.
  7. [7]
    Where an application is made for an exemption, the Queensland Human Rights Commission (QHRC) may make submissions.[5]  The Commissioner has made helpful submissions on the effect of the Human Rights Act on exemption applications under the ADA generally and on this application specifically.[6]  In making this decision I confirm that I have had regard to these submissions.
  8. [8]
    The Commissioner expressed concerns about exemptions that allow age restrictions in accommodation because exemptions must be temporary and they are not suited to permanent arrangements like accommodation; it was said that housing affordability is a concern for all people irrespective of their age; segmenting housing by age is not consistent with an inclusive age-friendly community and does not promote a healthy society; that an exemption should not be based on negative stereotypes about children and younger people; affordance and accessible accommodation for seniors can be achieved through non-discriminatory means including under the Retirement Villages Act; that residential complexes with age restrictions do not necessarily cater for age-related disabilities; and that younger people could benefit from accessible accommodation and facilities if they were not age restricted.
  9. [9]
    The Commissioner opposes this particular application on the basis that those 50 and below have an equal right to be protected from discrimination, that the evidence in the application about more affordable housing is poor and in any case such more affordable housing should be available to all, that it is making a stereotypical assumption to say that residents would be less protected and safe if those 50 and below were able to be residents, that bad behaviour could and should be addressed in other ways, and that the applicable threshold age in the Village of 50 was not ‘old’.
  10. [10]
    The Commissioner cited previous tribunal decisions to the effect that providing a safe environment that appeals to older people can be achieved through alternative legitimate means such as the types and style of dwelling, the provision of facilities and activities, and targeted marketing.[7]
  11. [11]
    The Commissioner made submissions tending to show that the application was not in respect of measures taken within section 15(5) of the Human Rights Act to assist or advance persons or groups of persons disadvantaged because of discrimination, which would otherwise mean that the Human Rights Act would not be engaged.  It is clear from MRF’s submissions in reply however, that it is not being said that section 15(5) is engaged in this particular matter.
  12. [12]
    There is much evidence filed in support of the application including from the local Member of Parliament and the local Councillor,[8] and from each of the seven separate body corporates who own the individual buildings in the Village.
  13. [13]
    Overall, this amounted to strong evidence demonstrating that the Village is regarded as well managed and that the current arrangements, which I describe later in these reasons when considering the constitution of the Village and how it operates, are very much to the benefit of its residents.
  14. [14]
    In its submissions, MRF recited the purpose and reasoning behind the retirement village legislation and said that the same purpose and reasoning applied to the Village in its application for an exemption under the ADA.  In particular, the arrangements at the Village helped seniors to remain in their homes for as long as possible.  Having seniors grouped together in the Village made it easier for external services to provide medical and other care,[9] and provided an extra layer of protection from a pandemic.
  15. [15]
    There are two things which need particular consideration in this application and which require factual findings:
    1. (a)
      The legal constitution of the Village, its facilities and why it is not under the auspices of the Retirement Villages Act.  This is important because it is necessary to identify who needs the exemption, and the extent of the exemption which is needed.  It is also relevant to the application for an exemption to know whether there is another way to achieve the same objective of restricting the age of residents to those of 50 or over, for example by the Village becoming governed by the Retirement Villages Act.
    2. (b)
      The effect of loss of the exemption.  This is important because the last exemption granted by the tribunal was largely because it was fair to maintain the status quo because residents had purchased into the Village and arranged their affairs based on the Village catering only for those aged over 50.  The importance of the age restriction is central to this application, so I am particularly interested in the effect of ending it.
  16. [16]
    I shall now consider these in turn.

Legal constitution of the Village, its facilities and why it is not governed by the Retirement Villages Act 1999 (Qld)

  1. [17]
    The information about this comes from the submissions supporting the application for exemption, a deed of trust dated 8 October 1982, from previous published reasons given by the tribunal or its predecessor, and from a letter dated 30 July 2002 written to MRF by Hon. Merri Rose MP the then Queensland Minister for Tourism and Racing and Minister for Fair Trading.[10] 
  2. [18]
    The Village consists of 134 units on the Gold Coast.  They are both single storey and two storey and contained within seven separate buildings.  Building started in 1979 and as each building was completed, a body corporate became its registered proprietor under the then Group Titles Act 1973 (Qld) or the Building Units and Group Titles Act 1980 (Qld).  The relevant body corporate then granted 80-year leases to MRF, one for each of the units in their building.  In turn, MRF granted subleases of each demise for a term of 80 years less one day to the first purchasers of the lots.
  3. [19]
    Hence, there are seven body corporates because each building has its own body corporate, and each lot owner holds a sublease granted by MRF as sub-lessor.  When an owner wishes to sell their unit, the ownership is transferred to a new owner by an assignment of the sublease executed by the lot owner.  This can only be done however, with MRF’s consent because of a covenant in the sublease.
  4. [20]
    The wording of the covenant is available from a previous exemption decision.[11]  It is a covenant:

not to assign or underlet or charge or in any way dispose of or part with possession of the demised premises to any person whomsoever without first obtaining the written consent of the sub-lessor PROVIDED HOWEVER that the sub-lessor will not withhold its consent to the assignment of the sub-lease in favour of any natural person or persons of more than 50 years of age

  1. [21]
    This covenant will be subject to section 121 of the Property Law Act 1974 (Qld) which provides that such consent should not be unreasonably withheld.
  2. [22]
    It appears that since the construction of the Village, MRF has only given its consent to assignments of the sublease where the purchaser is aged 50 or over.  Hence prospective purchasers under that age have been excluded.   The submissions state that in practice there is no objection to residents parting with possession of their unit for 3 months or less even if it is to someone not over age 50, and that in practice it is acceptable to let out a unit provided the tenant is over 50.[12]  It appears that letting does occur because there is a recognised current rent at any one time.[13]
  3. [23]
    MRF has another role.  It owns an area of land in the Village of 9 hectares housing various facilities.  In the submissions this has been called the ‘facilities land’.  By the deed of trust made on 8 October 1982, MRF holds this land on trust for each of the 134 owners as they are from time to time. 
  4. [24]
    The facilities are bingo, indoor bowls, craft, darts, table tennis, and snooker.  There is a heated swimming pool, croquet lawn, bowling green, golf putting green, tennis court, two gazebos and barbecue areas, a boat ramp, caravan storage area and a plant nursery.  In the submissions for this application there is also mentioned a pontoon and parklands with a lake.[14]  There is an active self-managed Social Club in the Village for use of residents organising social events, meetings and classes. 
  5. [25]
    The facilities can only be used by residents and their invited guests, although there is no objection to the invited guests being below the age of 50.  For example, this means that residents could attend such facilities with their adult children and with minor children. 
  6. [26]
    Under contracts between MRF and the bodies corporate, MRF can levy fees enabling it to manage the facilities land.  Since MRF operates on a non-profit basis,[15] it is said that this keeps fees down and benefits the residents. 
  7. [27]
    MRF is owned and operated by the residents themselves.  This is achieved by each body corporate nominating a person to be a director of the board of MRF.  There are no other directors, although there is a company secretary.  There are 134 shares issued by MRF which corresponds to the total number of units in the Village and at any one time the directors as nominated hold such number of shares as correspond to the number of units in the buildings which they represent.  MRF uses a registered trading name of Miami Retirement Village, ABN 17010113836.
  8. [28]
    In 1982 MRF employed a manager and a resident nurse.  Although there is still a manager, it seems that now medical and community services are external and residents are visited by such services regularly.
  9. [29]
    Residents at the Village are mainly aged in their 50’s to 90’s and three are aged 100.[16]
  10. [30]
    I now examine why the Village does not come under the auspices of the Retirement Villages Act 1999 (Qld).  The Village was built before the first Retirement Villages Act which was in 1988.  When that Act came into force, MRF was granted exemption from its provisions.  That Act was repealed and replaced by the 1999 Act.  The 1999 Act governs retirement village schemes under which the right to reside arises from a contract between the resident and the scheme operator, and where the contract restricts the way the resident may dispose of their interest in the village during their lifetime.  These ingredients are missing from the scheme of the Village.  There is no scheme operator, no such contractual arrangements and the right to reside is given by the assignment of the outgoing owner’s sublease. 
  11. [31]
    The 1999 Act deals with what has been called the loan/license model of retirement village, and does not apply to the leasehold model which was operative in the Village.[17]
  12. [32]
    It is submitted by MRF that it would not be possible to change the legal structure to bring the Village into the Retirement Villages Act regime.[18]  Although this is not explained in detail, I would tend to agree with this and it is not suggested otherwise by the Commissioner.  It would require all existing residents to agree to different arrangements and this would seem to be impossible to achieve even if an effort were made to achieve this over a number of years.
  13. [33]
    Had the Village been governed by the 1999 Act then there would be no need to apply to the tribunal for an exemption.  This is because it is not unlawful for schemes under the Act to restrict residence to older members of the community and retired persons.[19]

Effect of loss of the exemption

  1. [34]
    The second thing which needs special attention is the effect of the loss of the exemption.  There would be two main effects of this.  One is social and the other is the effect on property interests and expectations.
  2. [35]
    The evidence about the social effects is necessarily based on opinion and belief, and has not been tested.  But it is the opinion and belief of those who are in a better position than me to judge these things.  One of the body corporate’s representatives says that if an exemption is not granted:[20]

this would cause undue stress and anxiety to these elderly people in the later stages of their life

  1. [36]
    A starker picture is painted by a not-for-profit organisation which provides community and residential care services to older people and people with disability and who support a number of clients in the Village.  They say that an undermining of the current situation which contributes to the mental and physical health of the older people of the Village would mean that many of the older residents:[21]

may have no option but to go into residential aged care, which most would not want to do

  1. [37]
    A similar thing is said by a resident with particular expertise in this area.[22]
  2. [38]
    This evidence was probably relied on by MRF when it commented on the Commissioner’s submissions.  In doing so it said:[23]

(removing) a long standing exemption from discrimination would have a serious health and financial impact on the elderly residents who had ordered their affairs based on the assumption of a protected residential environment

  1. [39]
    MRF also said:[24]

We submit that a rejection of the application .. may trigger serious financial and health consequences for the current residents.

  1. [40]
    The basis for these opinions and beliefs appears to be that, as submitted by MRF, that if the exemption were not granted, over time the Village would transition from a retirement village into a ordinary complex and would therefore change its nature and operation fundamentally.  I accept that this would happen although it would not happen quickly.  I also accept that because of the likelihood of this happening at some time in the future, loss of the exemption would be immediately unsettling for some residents, and that some residents might bring forward any plan they might have to move into residential aged care.
  2. [41]
    The ‘serious financial consequences’ for residents referred to in MRF’s submissions is not further explained,[25] but it seems to be based on the same premise – that residents would be selling to move elsewhere.  I think however, that if an exemption were not granted, whereas there could be an outflow of residents as predicted by this evidence and in the submissions, it would be unlikely to happen quickly.  If it did happen, it would happen over some time.
  3. [42]
    The sales and letting information provided with the application, which was produced on 7 May 2020,[26] shows that the purchase price or rental price of a unit in the Village is indeed somewhat less than for a similar property outside the Village.  It seems likely that this is because demand for units restricted to age 50 and over is less than if they were available for all ages. 
  4. [43]
    For this reason I accept MRF’s submissions that unit values would increase if no exemption were granted because this ‘would just allow the residences to meet the market price for this area, which is not an affordable location’,[27] and if there is no exemption for the housing ‘its cost will eventually meet the market for a prestigious near beachfront location’.[28]   It seems to me that if the exemption were refused then as units became available for sale or rent they would command higher prices than if the exemption were granted.
  5. [44]
    In granting the last exemption Member Hughes pointed out that recent tribunal decisions had emphasised that there are non-discriminatory ways to achieve age restrictions in residential villages and that the tribunal had shifted away from granting exemptions, refusing applications for exemption that effectively seek de facto retirement village status without the commensurate responsibilities.[29]
  6. [45]
    Then he said that the tribunal’s past decisions for this Village meant that:

residents have purchased into the village based on the age restriction and other age related benefits. 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 three previous occasions, without proper notice.

  1. [46]
    But having decided that there was no reason to change the previous run of decisions Member Hughes said:

Both Miami 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.

  1. [47]
    In their submissions MRF say that Member Hughes put them on notice that the ‘status quo’ argument (that residents had purchased and committed to their residence on the basis of the exemption) would not be sufficient in itself any future applications.[30]  This seems to be a misreading of what Member Hughes said.  He was simply pointing out that if a non-discriminatory way of achieving the same result emerges, then the Village will not be successful in their next application for an exemption.  However as we have seen above, no such non-discriminatory way of achieving the same result has emerged.
  2. [48]
    What turned the matter for Member Hughes was the expectation of those who had purchased into the village based on the age restriction and other age related benefit.  To my mind this expectation is a powerful argument for maintaining the status quo.  The question arises however, whether the argument can succeed over the need under the Human Rights Act to restrict any limitations on human rights.

Effect of the Human Rights Act

  1. [49]
    When deciding an exemption application under the ADA, the tribunal is acting in an administrative capacity and therefore as a ‘public entity’ under the Human Rights Act.[31]  Hence the tribunal cannot make a decision that is not compatible with human rights or fail to give proper consideration to a human right relevant to the decision.[32]  In addition to this, the tribunal must interpret all statutory provisions in a way that is compatible with human rights.[33]
  2. [50]
    The human right potentially affected by the proposed exemption decision is set out in section of the Human Rights Act:

15. Recognition and equality before the law

  1. (1)
    Every person has the right to recognition as a person before the law.
  1. (2)
    Every person has the right to enjoy the person’s human rights without discrimination.
  1. (3)
    Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. (4)
    Every person has the right to equal and effective protection against discrimination.
  1. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [51]
    ‘Discrimination’ in the Human Rights Act is defined in Schedule 2 as:

discrimination, in relation to a person, includes direct discrimination or indirect discrimination, within the meaning of the Anti-Discrimination Act 1991, on the basis of an attribute stated in section 7 of that Act.

Note— The Anti-Discrimination Act 1991, section 7, lists attributes in relation to which discrimination is prohibited, including, for example, age, impairment, political belief or activity, race, religious belief or religious activity, sex and sexuality.

  1. [52]
    It remains to be seen whether the combination of section 15 and this definition of ‘discrimination’ protects persons from discrimination of a type outside the ADA.  The use of the word ‘includes’ in the definition of discrimination suggests that it is a human right not to suffer other types of discrimination, not covered by the ADA.  One obvious possibility is that it might be a human right in Queensland not to suffer discrimination in contravention of Commonwealth legislation.
  2. [53]
    The protection here is against ‘discrimination’, and not against ‘unlawful discrimination’.  Discrimination is only unlawful if in an ‘area’ covered by the ADA.
  3. [54]
    This means that the protection in section 15 is very wide.  When considering how it interleaves with the protection given in the ADA to a person with an attribute it can be seen that:
    1. (a)
      Where a person has a human right under the Human Rights Act or has a right to equal protection of the law, then that person may enjoy that right without discrimination, that is without being treated less favourably than someone else because of an attribute (direct discrimination) and without facing a disparate impact of a condition, requirement or practice because of an attribute (indirect discrimination).[34]
    2. (b)
      There is a human right not to be treated less favourably than someone else because of an attribute (direct discrimination) and without facing a disparate impact of a condition, requirement or practice because of an attribute (indirect discrimination).[35]
  4. [55]
    One example can demonstrate the change.  Under the ADA an educational authority may operate a school for students of a particular religion and exclude students of other religions.  This is because although such an act is directly discriminatory, it is not a contravention of the ADA because of an exemption which says that discrimination of this sort is not unlawful.[36]  But now, since every person has a human right to effective protection from discrimination whether or not it is unlawful under the ADA,[37] the operation of such a school would be a limitation of that human right for those excluded.  On a legal challenge therefore, the education authority would have to show that it was justified under the tests of the Human Right Act to exclude students of other religions from the school.

The proportionality test in section 13

  1. [56]
    Section 8 of the Human Rights Act provides:

8 Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision —

  1. (a)
    does not limit a human right; or
  1. (b)
    limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [57]
    Section 13 provides:

13. Human rights may be limited

  1. (1)
    A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. (2)
    In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -
  1. (a)
    the nature of the human right;
  1. (b)
    the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. (c)
    the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. (d)
    whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. (e)
    the importance of the purpose of the limitation;
  1. (f)
    the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. (g)
    the balance between the matters mentioned in paragraphs (e) and (f).
  1. [58]
    Section 13(1) requires any limit in a human right to be reasonable.  Also the limit must be demonstrably justified.  The context for assessing whether the limit is justified is a free and democratic society based on human dignity, equality and freedom.
  2. [59]
    The norm is therefore that a human right is enjoyed in a democratic society based on human dignity, equality and freedom and any limit to that right must be demonstrably justified and only to the extent that is reasonable.
  3. [60]
    In Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, Justice Martin described the test in section 13(1) as the ‘proportionality test’ in the same way as it applied in the Victorian Charter.[38]  In Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, Justice Kevin Bell, President of the Victorian Civil and Administrative Tribunal, having cited many authorities including his own decision in Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646, summarised the test in the Victorian Charter as follows:[39]

To establish a limitation is reasonable and justified in a free and democratic society, the purpose (the end) of the limitation must be legitimate and of sufficient importance to warrant overriding a human right protected by the Charter.  Further, the limitation (the means) must be proportionate and appropriate for achieving that purpose. 

  1. [61]
    That sections 8(b) and 13(1) require a test of proportionality is confirmed in that part of the explanatory notes to the Queensland Human Rights Bill, when explaining the factors in section 13(2) which may be relevant:

The nature of the human right: 13(2)(a) It is important to first consider the nature of the human right.  This involves looking at the purpose and underlying values of the human right. 

The nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom: 13(2)(b) Not every purpose can justify a limitation on a human right.  Whether the purpose of a law limiting a human right is consistent with the values of a free and democratic society may be relevant in considering whether the limit is reasonable and justified.  Another way of saying this is that it may be relevant to consider whether the purpose is sufficiently important to justify limiting a right or the purpose must relate to concerns which are pressing and substantial in a free and democratic society.  Examples of such purposes include the protection of the rights of others and public interest considerations, including the protection of the democratic nature of the society.  In proportionality analysis, this element is sometimes called legitimate purpose or proper purpose. 

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose: 13(2)(c) Having identified the purpose of the limitation, it may be relevant to consider the relationship between the limitation and the purpose.  This inquiry includes considering whether the law goes some way towards furthering that purpose.  In proportionality analysis this is sometimes called rational connection or suitability. 

Whether there are any less restrictive and reasonably available ways to achieve the purpose: 13(2)(d) It may be relevant to consider whether the purpose of the law can be reasonably achieved in more than one way, and whether other options have less impact on human rights. In proportionality analysis this element is sometimes called necessity. 

The importance of the purpose of the limitation: 13(2)(e) The last three factors involve a balancing exercise.  It may be relevant to consider whether the benefits gained by fulfilling the purpose of the limitation outweigh the harm caused to the human right.  The importance of the purpose of limiting the human right may be considered on one side of the scales. 

The importance of preserving the human right, taking into account the nature and extent of the limitation on the human right: 13(2)(f) The importance of the human right and the extent of the limitation of the right may be considered on the other side of the scales.

The balance between the matters mentioned in paragraphs (e) and (f): 13(2)(g) The balancing exercise involves comparing the importance of the purpose of limiting the human right with the importance of the human right and the extent of the limitation.  This comparison considers whether the limiting law strikes a fair balance.  The more important the right and the greater the incursion on the right, the more important the purpose will need to be to justify the limitation.

Whether it is compulsory to consider the section 13(2) factors and whether they are exclusive

  1. [62]
    When listing these factors, section 13(2) uses the words: ‘the following factors may be relevant’.  Usually such use of the word ‘may’ would suggest that it is not obligatory to consider the things listed, and that other things may also be relevant.
  2. [63]
    Although it may be appropriate to read the word ‘may’ as ‘must’ this is only in limited circumstances such as where the provision gives a decision maker authority to exercise a power, which they are obliged to exercise if the statutory criteria are met.[40]
  3. [64]
    The use of ‘may’ was deliberate, as is further explained in the explanatory notes to the Human Rights Bill:[41]

Clause 13 (the general limitations clause) sets out the factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable. While these factors are only a guide they are intended to align generally with the principle of proportionality – a test applied by courts in many other jurisdictions to determine whether a limit on a right is justifiable.

  1. [65]
    The notes go further into detail about this:

Clause 13 is the general limitations clause.  All human rights in the Bill may be subject to a limitation in accordance with clause 13.  This means that the human rights protected by the Bill are not absolute and may be balanced against the rights of others and public policy issues of significant importance.  Clause 13 provides a framework for deciding when and how a human right may be limited in a way which does not result in incompatibility under clause 8.

Subclause (1) imposes a requirement that the limitation is a reasonable limitation that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.  Because the justification must be ‘demonstrable’, the onus is on the State or public entity seeking to limit a human right to demonstrate that the limit is justified in the circumstances.  Consistent with international case law, the reasonableness and justification criteria are examined together.

Subclause (2) sets out the factors that may be relevant in deciding whether a limit is reasonable and justifiable.  The factors enumerated in subsection (2) are not exhaustive and are intended to be used as a guide.  They are also intended to align generally with the principle of proportionality, a test applied by courts in many other jurisdictions to determine whether a limit on a human right is justifiable.

Not all of the factors which are listed in subclause (2) will be relevant in all cases but the factors can be used by public entities as well as courts and tribunals to assist in their assessment of whether any limits on human rights are justified.

  1. [66]
    The fact that the factors in subsection (2) are only a ‘guide’ and are ‘not exhaustive’ and provide a ‘framework’ rather than being a list of things which must be considered in every case is also demonstrated from the fact that the Queensland legislation did not adopt the wording of a similar provision in section 7 of the Victorian Charter despite being modelled on that Charter:

7 Human rights—what they are and when they may be limited

  1. (1)
    This Part sets out the human rights that Parliament specifically seeks to protect and promote.
  1. (2)
    A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
  1. (a)
    the nature of the right; and
  1. (b)
    the importance of the purpose of the limitation; and
  1. (c)
    the nature and extent of the limitation; and
  1. (d)
    the relationship between the limitation and its purpose; and
  1. (e)
    any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
  1. (3)
    Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
  1. [67]
    Unlike the Queensland version, section 7 of the Victorian Charter requires the list of factors to be taken into account, together with ‘all relevant factors’.
  2. [68]
    In Owen-D’Arcy, Justice Martin did consider it right to address all the factors in section 13(2) one by one,[42] although he did not appear to say that a court or tribunal was obliged to do this.  In practice however, in a usual case it will be necessary to consider the factors in section 13(2) and perhaps other factors in order to apply the proportionality test properly.
  3. [69]
    I conclude therefore that when carrying out the balancing exercise under section 13, it is not compulsory to consider all the factors in section 13(2) and other factors can also be considered in an appropriate case.

Whether, when considering exemptions, the test has now changed

  1. [70]
    Prior to the Human Rights Act in Queensland the tribunal would exercise its discretion whether or not to grant an exemption without any direct guidance from the ADA how to do this.  Exercising the discretion was thought to be a balancing exercise similar to that now in the Human Rights Act, to produce a result consistent with the aims and objects of the ADA, in which it was relevant to consider whether the purpose for which the exemption was sought was in the community interest and not disproportionately unfair, and if so whether an exemption was necessary to achieve that purpose.[43]  But it would also be possible to consider other factors, such as fairness to the applicant.
  2. [71]
    From the analysis above it can be seen that the balancing exercise required by the Human Rights Act now defines the test to apply, although any exemption would also need to be consistent with the aims and objects of the ADA. 

Applying the new test

  1. [72]
    It is common ground that an applicant for an exemption has the burden of proof both under the ADA and under the Human Rights Act.
  2. [73]
    As for the nature of the human right which is affected here, this is in section 15 of the Human Rights Act, the most relevant being in subsection (4) – that is, the right to equal and effective protection against discrimination.  It would be affected when persons not over age 50 are denied an opportunity to be resident in the Village and in turn to enjoy the Village facilities.
  3. [74]
    As for the nature of the purpose of the limitation, the purpose is said to be of providing a protected environment for senior citizens to create a positive safe and friendly environment of like-minded individuals at the same stage of life, and to extend the time when they can stay at home. 
  4. [75]
    It is also said that a purpose is to provide more affordable housing to persons aged over 50. 
  5. [76]
    There is nothing inconsistent between those purposes and a free and democratic society based on human dignity, equality and freedom.
  6. [77]
    On the question however, whether the proposed limitation helps to achieve the purpose, a weakness appears.  There is nothing to show that if residents are permitted to be aged 50 and under, this would make the Village any less protected, positive, safe, friendly, less made up of like-minded individuals or less able to stay at home.  In that respect I tend to agree with the Commissioner’s submissions that this argument is based on stereotypical assumptions about younger people. 
  7. [78]
    It does appear that the limitation does help to provide more affordable housing to persons aged over 50, because as I have found above, there is a lower demand caused by restricting the age group.
  8. [79]
    On the question whether there are any less restrictive and reasonably available ways to achieve the purpose, for the reasons discussed above I accept the applicant’s submission that the Village could not bring itself under the Retirement Villages Act.  There seem to be no other ways of achieving the two purposes.
  9. [80]
    It is necessary to balance the importance of the purpose of the proposed limitation against the importance of the human right in section 15 of the Human Rights Act and the extent of the proposed limitation.
  10. [81]
    In this respect it is submitted by MRF that the exemption has little or no effect on the general population of Queensland in any relevant aspect, including more affordable housing.[44]  This is probably true.  Although I do agree with the Commissioner’s submissions that the restriction of residency in this particular case to those aged 50 and over is benefiting an age group which would not be described as ‘old’ these days, this argument tends to support MRF’s submissions about the impact on the general population of Queensland.  It means that the impact of the restriction is less than when the units were built.  This is because a greater proportion of the population would be eligible to reside in the Village now than when it was built.
  11. [82]
    As I have found above, the purchase price or rental price of a unit in the Village is somewhat less than for a similar property outside the Village.  It is submitted by the Commissioner that those aged 50 or less also need more affordable housing, but the problem is that lifting the exemption would result in loss of the more affordable housing because of increased demand.
  12. [83]
    It is submitted by the Commissioner that if the exemption is not granted those aged 50 or less would be able to enjoy what is on offer in the Village including benefiting from greater accessibility and the facilities on offer.  This is probably true.
  13. [84]
    Whilst I also tend to agree with the Commissioner’s submissions that segmenting housing is not consistent with an age-friendly community and does not promote a healthy society, I am not sure that the submission is directly applicable to the Village because the residents do have visits from younger members of their family and from services provided by younger people, and they are not themselves confined to the Village.  They are not ‘segmented’, or ‘segregated’.  In any case, it is the choice of the residents to reside in the way offered by the Village.  MRF make the valid point that it is recognised in the Retirement Village Act itself that an age restriction is acceptable in retirement village schemes.  The Village offers one type of housing in a mix of different types of housing on offer.
  14. [85]
    In this application the most important factor when carrying out the balancing exercise, and in exercising the discretion under the ADA whether or not to grant the exemption, is the effect of refusing it.  In so far as this would affect the private interests of the current residents it seems to me that I can still take that effect into account when considering ‘importance of the purpose of the limitation’.  In any case I can take the effect into account as a factor to be balanced in considering whether the limit on the human rights is justified, and when exercising the discretion under the ADA.
  15. [86]
    The effect is clearly going to be much greater in the short term on the current residents.  I have found that some would find it unsettling and could cause some to bring forward plans to move.  It would also be contrary to their expectation when they purchased or rented their units.
  16. [87]
    The effect of refusing the exemption would be different in the longer term.  The arguments now made by the Commissioner would be compelling if the tribunal could continue the exemption but limit it to some future date when all the current residents have been replaced by different residents.  But the tribunal can only make exemption orders effective now and for a maximum period of five years, and so it is the short term effect of those orders which needs to be considered.  For this reason, whilst I accept the Commissioner’s submissions that an exemption from the ADA should be temporary,[45] the ADA specifically permits renewals[46] and it is precisely this sort of application where such a renewal is required.
  17. [88]
    The balancing exercise comes out in favour of renewing the exemption.  I confirm that the exemption limits the relevant human right only to the extent that it is reasonable and demonstrably justified in a free and democratic society based in human dignity, equality and freedom, and produces a result consistent with the aims and objects of the ADA.

The order which should be made

  1. [89]
    By section 8(b) of the Human Rights Act a human right can only be limited to the extent that is reasonable and demonstrably justifiable in accordance with section 13.  Section 113 of the ADA only permits an exemption from ‘a specified provision of the Act’ and section 113(6) permits an exemption to apply only in such circumstances, or in connection with such activities, as the tribunal determines.  It seems to me that this legislative combination means that when granting an exemption from the ADA the tribunal needs to understand what act or omission will be permitted by the exemption and under which provision of the ADA it would otherwise be discriminatory and a contravention of the ADA.   
  2. [90]
    This was the last order made by the tribunal:

Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in section 7(f) of the Act from 27 July 2017 to 26 July 2020 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.

  1. [91]
    The wording of this is identical to the first exemption granted by the tribunal’s predecessor on 7 March 2007.  At first sight the exemption seems very wide and covers age discrimination in the goods and services area, disposition of land area, and accommodation area.  But then the exemption says that the exemption is ‘in respect of the occupation of units at the property’ in the Village.  This seems to narrow the exemption, but in doing so introduces some uncertainty as to the exact scope of the exemption granted by the tribunal.
  2. [92]
    To assist in the task of identifying how the Act would be contravened if the exemption were not granted and who would contravene it, I made directions for this information to be given to the tribunal, with a copy to be given to QHRC.[47]
  3. [93]
    In response, MRF stated that that there would be a contravention of the ADA by enforcing the over 50 age restriction by:[48]
    1. (a)
      the age restriction in the covenant in the sublease;
    2. (b)
      by imposing conditions of entry to the recreational facilities; and
    3. (c)
      with restrictive by-laws.
  4. [94]
    MRF say that in practice the decision whether to withhold consent under the covenant is made by the relevant body corporate committee, hence it now asks that the seven bodies corporate are included in the exemption order. 
  5. [95]
    Since an application for an exemption can be made on behalf of others,[49] and a formal application was made to the effect now requested, there is no jurisdictional difficulty in including the bodies corporate.  It also seems to me that the workers or agents of the named legal entities should also be exempted.[50]
  6. [96]
    MRF state that there would also be a contravention of the ADA by advertising the Village as ‘over 50 residences’ enforced by restricting the sublease, enforced with restrictive by-laws and by imposing conditions of entry to the recreational facilities.[51]  I agree that such an advertisement would be a contravention of section 127 of the ADA, even if not all the things stated in the advertisement actually happen.  Therefore I think this should be added to the exemption.
  7. [97]
    As for the acts or omissions to be covered by the exemption, and the ‘areas’ which apply, because of the wide terms of sections 82 and 83 of the ADA it would probably be a contravention in the accommodation area for MRF to withhold consent under the covenant because of the age of the prospective new resident.  Section 82(a) reads:

A person must not discriminate against another person - (a) by failing to accept an application for accommodation

  1. [98]
    This would seem to catch the outgoing owner’s request for consent to assign, underlet or part with possession of the premises which is likely to be an ‘application for accommodation’ albeit an application for accommodation to be taken up by someone else, that is the prospective new resident.
  2. [99]
    In any case, the situation is caught by section 83(d):

A person must not discriminate against another person - (d) by treating the other person unfavourably in any way in connection with the accommodation.

  1. [100]
    Although it would not appear that MRF’s withholding consent could be a contravention of the disposition of land area of the ADA as being directly discriminatory,[52] there is a concern that the practice to refuse such consent could be indirectly discriminatory and covered by that area.
  2. [101]
    Turning to (b), this would come within the goods and services area in the ADA.  The concern is that the on site facilities are only available for residents and their invited guests.  Although it does not appear that refusing a non-resident access to the on site facilities could be direct discrimination,[53] there would be a concern that the practice to refuse such entry could be indirectly discriminatory.[54]
  3. [102]
    Although a study of exactly who could be liable for the indirect discrimination which might occur under (a) and (b) would be complex, it is not necessary to be precise.  It is sufficient to justify an exemption order if there might be a contravention of the ADA.[55]
  4. [103]
    Turning to (c), that is the making of restrictive by-laws, there is nothing to indicate that this has happened in the past nor that there are any plans to do so in the future so I do not think there is any need to refer to this in the exemption order.

Can the order be backdated?

  1. [104]
    MRF asks for the tribunal’s exemption to apply from the day after the expiry of the last exemption.  This means that the tribunal’s order will take effect retrospectively.  The question arises therefore whether the tribunal can do this. 
  2. [105]
    Section 127 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) says that a decision of the tribunal takes effect either when it is made or such later date or time which may be specified.  This does not seem to be an impediment.  This is because it is possible to say that a retrospective tribunal order does indeed not have any effect until it is made.[56]
  3. [106]
    Instead, it can be seen from the approach to the question whether the tribunal can make a retrospective order taken both by Justice Mullins in Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49[57] and Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380[58] is that it is determined by the terms of the enabling Act, where this contains the power under which the tribunal is acting.
  4. [107]
    Here the power under which the tribunal is acting is that in section 113 of the ADA, and that is confirmed by section 174C of the ADA.  There is nothing in the terms of section 113 which shows one way or the other whether a retrospective exemption can be granted.  However, section 113(7) of the ADA says that an exemption ‘may be renewed for further periods of not more than 5 years’.  The natural meaning of these words indicate that the tribunal can ensure in an appropriate case that there is no gap between the expiry of an exemption and the renewal date.  In the circumstances it does appear that a retrospective order can be made at least in the case of renewals.  Here this certainly would seem to be fair because the application was made before the expiry date but for one reason or another the tribunal has only been able to make a decision about it now.

How long should the exemption be for?

  1. [108]
    As for the length of the exemption, although the exemption is sought only for three years, the main issue of importance here is the historical and ongoing expectation of the residents and the disruption which could result from a refusal of the application.  This is unlikely to change, and for that reason it seems to me that an exemption for five years should be granted.  Another reason for this is that it seems likely that the Village will need to make continuing applications for exemption and it is onerous for the Village and its residents each time this needs to be done.  I think in the circumstances a period of five years is appropriate.
  2. [109]
    In the circumstances I grant the application in the terms set out in the order.

Footnotes

[1]Exemption application re: Miami Recreational Facilities Pty Limited [2007] QADT 7.

[2]Unreported.

[3]Miami Recreational Facilities Pty Ltd [2013] QCAT 635.

[4]Miami Recreational Facilities Pty Ltd [2017] QCAT 253.

[5]Section 113(2) of the ADA.

[6]Submissions of 28 August 2020.

[7]Ghostgum Developments Pty Ltd [2015] QCAT 500, [48]-[49], Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869, [408]-[410].

[8] Exhibits ‘J’ and ‘K’ to the affidavit of Victor Alexander Ure made on 19 June 2000.

[9] Paragraph 5.2 of submissions of 21 January 2021.

[10] Exhibits ‘H’ to the affidavit of Victor Alexander Ure made on 19 June 2000.

[11] Exemption application re: Miami Recreational Facilities Pty Limited [2007] QADT 7.  By section 208(1)(c) I may adopt any findings or decision of a court or tribunal that may be relevant to this hearing.

[12] These submissions are on page 6 of the submission filed in response to tribunal directions of 5 October 2021.

[13] See report by Remax – exhibit ‘M’ to the affidavit of Victor Alexander Ure made on 19 June 2000.

[14] Page 4 of submissions filed on 25 June 2020.

[15] MRF’s constitution limits its shareholding to the seven secretaries for the time being of the seven body corporates.

[16] Exhibits ‘A’, ‘C’ and ‘E’ to the affidavit of Victor Alexander Ure made on 19 June 2000.

[17] These models are described in the Productivity Commission’s Research Paper ‘Housing Decisions of Old Australians’ December 2015, page 99.

[18] Part B, paragraph 7, response 6 to submissions filed on 21 January 2021.

[19] Section 26 of the 1999 Act.

[20] Exhibit ‘D’ to the affidavit of Victor Alexander Ure made on 19 June 2000.

[21] Exhibit ‘I’ to that affidavit.

[22] Exhibit ‘L’ to that affidavit.

[23] Paragraph 2(2)(d).

[24] Part C, paragraph 8 of submissions filed on 21 January 2021.

[25] Part C, paragraph 8 of submissions filed on 21 January 2021.

[26] Remax letter of that date – exhibit ‘M’ to the affidavit of Victor Alexander Ure of 19 June 2020.

[27] Part B, paragraph 7, response 2.

[28] Part C, paragraph (5)(c) of submissions filed on 21 January 2021.

[29] [8].  This was a reference to the regime under the Retirement Villages Act 1991 (Qld).

[30] Paragraph 4 of submissions filed on 21 January 2021.

[31] Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164, [29], Member Traves.

[32] Section 58.

[33] Section 48.

[34] Sections 15(2) and 15(3) of the Human Rights Act.

[35] Section 15(4) of the Human Rights Act.

[36] Section 41 of the ADA.

[37] Section 15(4) of the Human Rights Act.

[38] [104].  The Victorian Charter is the Charter of Human Rights and Responsibilities Act 2016 (Vic).

[39] [326].  As explained in the explanatory notes to the Human Rights Bill, pages 10 and 11, the Queensland legislation followed the ‘dialogue model’ of human rights protection in the same way as the Victorian Charter and so it is appropriate to have regard to Victorian case law.  See also section 48(3) of the Human Rights Act.

[40] Explained in Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76, [104].  See also section 32CA of the Acts Interpretation Act 1954 (Qld) where ‘may’ and ‘must’ are used in a statute in relation to a ‘power’.

[41] Page 5.

[42] [244] to [251].

[43] Sundale Limited [2019] QCAT 83, [25].

[44] Part C paragraph 5(c) of the submissions filed on 21 January 2021.

[45] As indeed required by section 113(6)(c) which limits exemptions to five years.

[46] Section 113(7).

[47] Directions of 5 October 2021.

[48] Page 6 of submissions filed in response to the tribunal’s directions on 5 October 2021.

[49] Section 113(1) of the ADA.

[50] To avoid liability arising under section 114 of the ADA.

[51] Page 6 of submissions filed in response to the tribunal’s directions on 5 October 2021.

[52] Because any such disposition is not done by MRF.

[53] Because the reason for the refusal would be non-residency and not ‘age’.

[54] This is because those 50 and under cannot be residents.

[55] Exemption application re: Palmpoint Pty Ltd [2006] QADT 12.

[56]Section 127 has not been regarded as an impediment in those QCAT decisions when a retrospective order was regarded as properly made, for example FAP [2012] QCAT 319, [16], AMFE [2012] QCAT 301, [12] and Kay v Nye [2014] QCATA 042, [6].

[57][74].

[58][29].

Close

Editorial Notes

  • Published Case Name:

    Miami Recreational Facilities Pty Ltd

  • Shortened Case Name:

    Miami Recreational Facilities Pty Ltd

  • MNC:

    [2021] QCAT 378

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    03 Nov 2021

Appeal Status

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