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Sunshine Coast Regional Council [No 2][2021] QCAT 439

Sunshine Coast Regional Council [No 2][2021] QCAT 439

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sunshine Coast Regional Council [No 2] [2021] QCAT 439

PARTIES:

Sunshine Coast Regional Council

(applicant)

APPLICATION NO:

ADL043-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

22 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

The application for an exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) filed by the applicant on 27 July 2020 is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – LEGISLATION – GENERALLY – application for exemption from application of Anti-Discrimination Act 1991 (Qld) – proposed policy to allow grant of tourism business permits to Aboriginal and Torres Strait Islander persons only.

Acts Interpretation Act 1954 (Qld), s 14D

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 21, s 22, s 81, s 104, s 113, s 174A, s 174C, schedule 1

Human Rights Act 2019 (Qld), Preamble, s 5, s 7, s 8, s 9, s 13, s 15, s 28, s 48, s 58, s 63, schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164.

Downer EDI Mining [2013] QCATA 276

Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21

Opinion re: Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2

Sundale Limited [2019] QCAT 83.

APPEARANCES &

REPRESENTATION:

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

Introduction

  1. [1]
    The Sunshine Coast Regional Council (the Council) has applied to the Tribunal for exemption from application of the Anti-Discrimination Act 1991 (Qld) (the AD Act) under s 113 of that Act, concerning a proposed policy, for a period of five years. The policy would have the effect of allowing the Council to grant permits to conduct certain tourism businesses on Council land, solely to Aboriginal and Torres Strait Islander people (the Proposed Policy).
  2. [2]
    For reasons which follow, my decision is to dismiss the application because an exemption is unnecessary to implement the Proposed Policy. Section 104 of the AD Act would allow implementation of the Proposed Policy as a welfare measure.

Background – legislative basis for the application

  1. [3]
    One of the purposes of the AD Act, contained in s 6(1), is to:

… promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.

  1. [4]
    Section 6(2) states that the purpose is to be achieved by prohibiting discrimination that is:
  1. (a)
    on a ground set out in chapter 2, part 2, in which s 7 lists attributes on which the Act prohibits discrimination, including race; and
  2. (b)
    of a type set out in chapter 2, part 3 (direct or indirect discrimination); and
  3. (c)
    in an area of activity set out in chapter 2, part 4, which relevantly includes s 21 and s 22;

unless an exemption set out in chapter 2, part 4 or 5 applies.

  1. [5]
    Section 113(1) of the AD Act contained in chapter 2, part 5 of the AD Act is one such exemption and it provides that the Tribunal:

may grant an exemption to [an applicant] from the operation of a specified provision of the Act.

  1. [6]
    The areas of activity which apply to the Council’s application are s 21 and s 22, which relevantly are 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 carrying on of a … business must not discriminate—

  1. (a)
    in granting, renewing or extending a qualification or authorisation or failing to do so; or
  2. (b)
    in the terms on which a qualification or authorisation is granted, renewed or extended.

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 carrying on of a … 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.

(added emphasis)

  1. [7]
    The Council, by imposing a pre-qualification or qualification based on race, on a category of permit, would be discriminating on the ground of race.
  2. [8]
    In its own terms, s 113 does not contain criteria for the exercise of the discretion of the Tribunal to grant an exemption. However, in a decision in an application also under    s 113, the President of the then Anti-Discrimination Tribunal considered that there were several criteria to be applied in considering an application under that provision.[1]
  3. [9]
    Firstly, the Tribunal must be satisfied that the exemption is necessary to achieve the purposes of the proposal for which the exemption is sought.[2] In the structure of the AD Act, chapter 2, part 5, that means that there are no other general exemptions available that would apply to the proposal concerned. For example, in Boeing, the President considered whether the general exemption under s 106 of the AD Act would apply, as to whether the relevant proposal was authorised under statutory authority.
  4. [10]
    Secondly, application of the Boeing criteria would mean that the Tribunal must be satisfied that it would be appropriate and reasonable to grant the exemption.[3] Other matters that may be relevant in considering an exemption include:
    1. (a)
      whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
    2. (b)
      whether the exemption is in the community interest;
    3. (c)
      whether any other persons or bodies other than the applicant support the application.

The Boeing criteria have been followed by the Tribunal in many cases on s 113.[4]

  1. [11]
    Section 174C(1) of the AD Act provides that if the Act confers jurisdiction on the Tribunal in relation to a matter, the Tribunal may exercise the powers conferred on it under the AD Act or the ‘relevant tribunal Act’, defined in the relevant sense to mean the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).[5]
  2. [12]
    Since the Boeing decision, the Human Rights Act 2019 (Qld) (HR Act) commenced operation, on 1 January 2020. I will consider the application of the HR Act below.

The Council’s Proposed Policy

  1. [13]
    The Council has an existing Community and Complementary Commercial Activity Policy (the Policy). Annexure A to the application to the Tribunal, states that the Council intended to amend that Policy to introduce an 'Identified Tourism’ permit category. Identified tourism permits are proposed to be made available only to Aboriginal and Torres Strait Islander people.
  2. [14]
    In support of its application, the Council filed an affidavit by Warren Bunker, the acting Chief Executive Officer of the Council. In his affidavit, Mr Bunker says that on 4 November 2019, the Council resolved to endorse amendments to the Policy for the purposes of seeking an exemption under the AD Act. Mr Bunker exhibited to his affidavit a copy of a report endorsed by the Council on seeking the exemption, which includes the proposed amendments to the Policy, in tracked changes.
  3. [15]
    Mr Bunker also referred[6] to action 10 in the Council’s Innovate Reconciliation Action Plan 2017- 2019 which states that the Council will:

Identify opportunities to expand Aboriginal and Torres Strait Islander aspects of cultural tourism within the region.

  1. [16]
    The purpose of the existing Policy (and indeed as the Council propose to amend it) is to:

… outline the framework and principles for making decisions about the allocation and use 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. [17]
    The existing Policy[7] applies to ongoing commercial activity on Council-controlled community land. In general, that includes freehold land and land under the control or management of the Council such as parks and reserves, pathways, footpaths, bathing reserves and foreshores. The policy does not apply to a range of listed land including commercial activities in National Parks or on land and waterways that are controlled directly by the State.
  2. [18]
    The existing Policy allows for the grant of four types of permits for commercial use of community land including 'low-use/low-impact permits’, including for fitness classes, itinerant vendors and activities conducted by not-for-profit organisations. Another category is the familiar 'outdoor dining’ permit which allows for outdoor dining on community land in conjunction with an adjacent food and drink business operating on private land. The category of 'goods on footpath' allows for grant of a permit requiring access to community land for the purpose of displaying goods for sale in conjunction with an adjacent business, operating on private land.
  3. [19]
    The Proposed Policy would introduce a new category of permit, which would be an 'Identified Tourism’ category:

... for commercial activities that require access to community land for the purpose of delivering Aboriginal and Torres Strait Islander cultural tourism experiences that occur on traditional Country of the Kabi Kabi or Jinibara peoples. The following will be considered for determining if an activity qualifies as 'Identified Tourism’:

  • business owned and operated by Aboriginal and Torres Strait Islander peoples;
  • activity enhances the visibility and accessibility of Indigenous culture on the Sunshine Coast;
  • the proposed site has a cultural, environmental and/or historical significance;
  • support local business; and
  • promotes indigenous tourism on the Sunshine Coast.
  1. [20]
    On the face of it, this key aspect of the Proposed Policy would be prohibited by the AD Act, because it discriminates against people who are not Aboriginal or Torres Strait Islander. That would be discrimination on the attribute of race, under s 7(g) of the Act, in the areas described by s 21 and s 22, as qualifications for carrying out a business. Section 113 of the AD Act allows the Tribunal to grant an exemption from that consequence.
  2. [21]
    The key defined terms in the Proposed Policy are as follows:
  • ‘Identified tourism activities’ are defined as 'Commercial activities deliver Aboriginal and Torres Strait Islander cultural tourism experiences that occur on traditional Country of the Kabi Kabi and Jinibara peoples’;
  • ‘Identified tourism locations’ are defined as ‘locations that have a cultural, environmental and/or historical significance and are on traditional Country of the Kabi Kabi and Jinibara peoples’.
  1. [22]
    The Proposed Policy describes the process for grant of an Identified Tourism permit. Amongst other aspects, a permit would be subject to an expression of interest (EOI) process every three years, for a three year permit. The EOI process would be communicated through agreed existing communication channels with Traditional Owner groups. The Council would decide to what extent Identified Tourism activity may occur and the locations and types of activities that are appropriate.
  2. [23]
    In Sunshine Coast Regional Council,[8] Member Paratz AM decided that the Tribunal has jurisdiction to determine the Council’s application for an exemption under the AD Act.

Submissions

  1. [24]
    In Annexure A attached to the Council's application, it made a submission in support of its application for exemption from the AD Act on the grounds that:
    1. (a)
      There are no non-discriminatory ways of achieving the purpose for which the 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. (b)
    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. (c)
    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.

  1. [25]
    Before the Tribunal makes a decision on an application for exemption, s 113(2) of the AD Act requires the Tribunal to give the Human Rights Commissioner a copy of the application and material filed in support of it, and to have regard to any submission made by the Commissioner on the application. The Commissioner filed a written submission dated 6 May 2021. The Commissioner’s submissions focused on the application of the HR Act to the circumstances of this application.
  2. [26]
    The Commissioner submits that s 48 of the HR Act applies to the Tribunal when considering an application for exemption under s 113 of the AD Act.[9] I accept that proposition. The relevant provisions of s 48 are as follows:

48 Interpretation

  1. (1)
    All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  2. (2)
    If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

(added emphasis)

  1. [27]
    The meaning of ‘compatible with human rights’ is set out in s 8 of the HR Act, relevantly that a statutory provision is ‘compatible with human rights’ if the provision:
    1. (a)
      does not limit a human right; or
    2. (b)
      limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
  2. [28]
    It is therefore necessary to identify whether a human right is affected by application of the statutory provision concerned. Section 7 of the HR Act states that 'human rights’ for the purposes of the HR Act, mean the rights stated in part 2, divisions 2 and 3
    (ss 15-37). For the purposes of working out whether the HR Act has some application to the issue concerned, it is first necessary to identify whether a human right under the Act is engaged, on the issue concerned. The Commissioner identified the human right contained in s 15 of the HR Act to be potentially engaged.[10] Section 15 is relevantly as follows:

15 Recognition and equality before the law

...

  1. (2)
    Every person has the right to enjoy the person’s human rights without discrimination.
  2. (3)
    Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  3. (4)
    Every person has the right to equal and effective protection against discrimination.
  4. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

(added emphasis)

  1. [29]
    The Commissioner submits that the effect of the exemption sought would be to allow the Council to discriminate on the ground of race in authorising the operation of Indigenous tourism on Council and community land.
  2. [30]
    There are a number of linkages between the AD Act and the HR Act, and s 15 is one of them. Whether something is done ‘without discrimination’ depends on the meaning of the term 'discrimination’ contained in the Dictionary[11] of the HR Act which relevantly ‘includes’ (and as the Commissioner submits, is therefore is not confined to) discrimination within the meaning of the AD Act, on the ground of an attribute stated in s 7 of that Act, which of course includes race.
  3. [31]
    I agree that s 15 is engaged on the Council’s application for an exemption. Equal protection before the law without discrimination in the context of the Council’s application means that people who apply for a permit from the Council should not be discriminated against on the attribute of race, under s 7(g) of the AD Act. To the extent that a non-Indigenous person would not be able to apply for the proposed Identified Tourism permit, such a non-Indigenous person would be discriminated against, on the attribute of race, in the area covered by ss 21 and 22 of the AD Act.
  4. [32]
    The Commissioner submits that the purpose of s 15(5) is to promote substantive equality. If the activity concerned is a ‘special measure' within s 15(5), the activity would be ‘human rights compatible’ (meaning that it would not be necessary to apply the balancing test contained in s 13 of the HR Act). If it is not a ‘special measure’ under s 15(5), then the ‘justification test’ in s 13 of the HR Act is to be applied.
  5. [33]
    The Commissioner’s submissions devoted considerable attention to whether the Council proposal satisfied the requirements of s 15(5) of the HR Act. The result of the Commissioner's analysis is a submission that the Council should be able to satisfy the Tribunal that the Proposed Policy is a ‘special measure' within the meaning of s 15(5) of the HR Act.
  6. [34]
    Alternatively, the Commissioner submitted that if the Tribunal is satisfied that the Proposed Policy is a ‘welfare measure' under s 104 of the AD Act, an exemption would not be necessary.
  7. [35]
    Overall, the Commissioner submitted that subject to the matters raised in the Commissioner's written submissions, the Human Rights Commission would not oppose a finding that the Policy Proposal constitutes a 'welfare measure' under s 104, or the grant of an exemption under s 113 of the AD Act.

Consideration

  1. [36]
    In my opinion, the Boeing criterion for an exemption under s 113 to be necessary, because no other exemption under the AD Act is applicable, is still relevant to consideration of s 113 even after the commencement of the HR Act, as a matter of legal logic. That is, it is not necessary to grant an exemption under s 113 if another exemption from the application of the AD Act applies. The approach of the Tribunal has been that where there is only a possible defence rather than a certain defence because of the application of an exemption provision, an exemption should be granted in an appropriate case.[12]
  2. [37]
    The Commissioner accepted that this aspect of the Boeing criteria is applicable, and as described above, submitted if the Proposed Policy is a ‘welfare measure’ under s 104 of the AD Act, an exemption would not be necessary.
  3. [38]
    Since the Council has applied for an exemption under s 113 of the AD Act, I think it is appropriate to first consider whether s 104 applies, which is as follows:

104 Welfare measures

A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.

Example 1—

It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail.

Example 2—

It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people.

Example 3—

It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks.

  1. [39]
    I make the following points of analysis about application of s 104 in the circumstances of this case.
  2. [40]
    First, the ‘welfare measures’ contemplated by s 104 are not limited to ‘welfare payments'. That much is clear from the examples[13] given of the contemplated application of s 104, which clearly extend to actions, such as the Proposed Policy, and not only payment of welfare benefits. The Proposed Policy is an act, the purpose of which is to benefit Indigenous people.
  3. [41]
    Second, an attribute referred to in s 104 is an attribute listed in s 7 of the AD Act. The Proposed Policy would have the effect of benefiting Indigenous people as groups of people with the attribute of being of particular races.
  4. [42]
    Third, the focus of s 104 is on the act concerned, and its purpose, rather than only on the effect of the act itself. The proposed beneficial act will fall within the exemption contained in s 104 if the purpose of the act is not inconsistent with the AD Act. This cannot mean that the proposed ‘welfare measure’ will fail to qualify for exemption under s 104 if it would otherwise amount to discrimination under the Act. If the threshold for s 104 was that high, no ‘welfare measure' would ever qualify for exemption under s 104, and that would defeat the very purpose of s 104. Also, s 104 is not confined only to inconsistency with the anti-discrimination purpose of the Act set out in s 6. The inconsistency to be avoided, in the terms of s 104, is not confined to inconsistency with the purposes contained in s 6, and the focus of potential inconsistency is on the purpose of the proposed welfare measure.
  5. [43]
    In a decision of the previous Anti-Discrimination Tribunal,[14] President Sofronoff QC granted an exemption under s 104 in the context of a retirement village which provided accommodation services only to people eligible for the aged pension, contrary to s 81 of the Act (age-related discrimination in the accommodation area). The President described the application of s 104 in that context as follows:

The provision of special accommodation solely for the aged is plainly an act for the purpose of which is to benefit the aged. Is the provision of such accommodation inconsistent with the Act? The intention of the Act is to furnish protection for persons who are vulnerable, on the ground of some attribute, to discrimination in, relevantly, the area of provision of accommodation. There can, of course, be no suggestion that persons of working age are in any way disadvantaged, on the basis of their age, in seeking and obtaining suitable accommodation. Consequently it cannot be inconsistent with the Act to provide accommodation solely for those eligible for the aged pension.

  1. [44]
    In my view, the purpose of the Proposed Policy is not to discriminate against non- Indigenous people on the ground of race, but instead to introduce a benefit to a group of people by reference to the attribute of race, a group who have undoubtedly been economically disadvantaged in Australia’s history. The purpose of the Proposed Policy is not to prevent non-Indigenous people from applying for a permit: the Proposed Policy would of course allow anyone to apply for the other four categories of permit.
  2. [45]
    Fourth, the application of s 104 of the AD Act could amount to the limitation of the human right of non-Indigenous people to equality before the law, under s 15 of the HR Act, to apply for the Identified Tourism category of permit. Therefore, it is necessary that I consider the application of s 48 of the HR Act, or whether s 104 can, to the extent possible that is consistent with its purpose, be interpreted in a way that is compatible with human rights.
  3. [46]
    As I have identified above, the combined effect of s 8 and s 13 of the HR Act means that an interpretation and application of s 104 which has the effect of limiting a human right is 'compatible with human rights' if it is reasonable and demonstrably justifiable in accordance with the factors contained in s 13.
  4. [47]
    Section 13 is as follows:

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.
  2. (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;
  2. (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;
  3. (c)
    the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  4. (d)
    whether there are any less restrictive and reasonably available ways to achieve the purpose;
  5. (e)
    the importance of the purpose of the limitation;
  6. (f)
    the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  7. (g)
    the balance between the matters mentioned in paragraphs (e) and (f).

(added emphasis)

Because the factors contained in s 13(2)(a)-(g) are preceded by the word ‘may’, those factors are not exhaustive, but do provide guidance, relevantly to the Tribunal, on  whether the potential limit on the human right in s 15, in this case, is both reasonable and justifiable.

  1. [48]
    Comparison of the Boeing criteria with the factors contained in s 13(2) reveals that the Boeing criteria (apart from the first criterion of necessity for the exemption) can be considered to fall within the scope of the factors contained in s 13(2). It may be that in considering an application for an exemption under s 113, since the commencement of the HR Act, the s 13 factors have replaced the Boeing criteria. That would be because an application for an exemption under s 113 almost inevitably contemplates that the proposed action involves some discrimination under the AD Act and therefore a limitation on the human right of equal treatment under s 15 of the HR Act. Because of the approach I have taken of first considering whether an exemption under s 113 is necessary, due to the effect of s 104 of the AD Act, it is not necessary for me to finally decide whether s 13 has replaced the Boeing criteria. However, it is necessary for me to consider and apply the s 13 factors to interpretation of s 104.
  2. [49]
    Under s 13(2)(a), the human right which is potentially limited by s 104 is the right of equality before the law in s 15. That is a human right of obvious importance, and not easily to be traded away.
  3. [50]
    For paragraph (b), the purpose of the limitation of the human right which is the effect of s 104, is to allow a 'welfare measure' to benefit members of a group of people with an attribute under s 7 of the AD Act, as an exemption to what would otherwise be discrimination under the AD Act. For this aspect of s 13, much will depend on the purpose of the proposed ‘welfare measure’ concerned. In this case, the purpose is to confer a benefit on Indigenous people so that there is a special category of permit set aside exclusively for Indigenous people which will also have the effect of promoting Indigenous culture.
  4. [51]
    That brings into the balance contained in s 13, the cultural rights of Aboriginal peoples and Torres Strait Islander peoples contained in s 28 of the HR Act.[15] Section 28(1) recognises that Aboriginal and Torres Strait Islander peoples hold distinct cultural rights. The human right contained in s 28(2) is expressed in the negative: that is, the Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community, to enjoy the cultural heritage and cultural rights contained in that provision. The Proposed Policy will have the effect of promoting the human right contained in s 28.
  5. [52]
    In this case, part of the balancing process which is the subject of s 13(2) is a balance between some limitation on the right to equality before the law contained in s 15 of the HR Act, with promotion of the human right on Indigenous culture contained in       s 28.
  6. [53]
    On application of s 13(2)(c), there is a direct relationship between the limitation of the human right to equality before the law and the purpose of the limitation in this case, which is to promote the welfare measure for Indigenous peoples, and promotion of Indigenous culture.
  7. [54]
    For paragraph (d), there is no less restrictive and reasonably available way of achieving the purpose of the welfare measure under s 104, of the permit only being available to Indigenous people, than actually providing for an exclusive purpose permit for Indigenous peoples. However, it must be remembered that the proposed Indigenous permit will be only one of five categories of permits available, with the other four categories of permit available to anyone in the Council’s area.
  8. [55]
    The importance of the purpose of the limitation in s 104, for paragraph (e) is to enable an exemption from discrimination under the AD Act. Otherwise, a ‘welfare measure' under s 104 would itself amount to discrimination, and in this case, potentially prevent achievement of the Proposed Policy.
  9. [56]
    Section 13(2)(f) requires an assessment of the importance of preserving the human right in s 15 of the HR Act, taking into account the nature and extent of the limitation on the human right. Section 104 does not allow open slather exemption from the application of the AD Act. An important limitation is that the purpose of the relevant welfare measure must not be inconsistent with the AD Act.
  10. [57]
    Application of s 104 to the Proposed Policy in this case will not lead to a broad or widespread limitation of the human right contained in s 15 of the HR Act. It is limited to providing for one category of permit to be exclusively available to Indigenous people. Anyone else in the community is entitled to apply for a permit in one of the other four categories.
  11. [58]
    Paragraph (g) requires a balance between the matters mentioned in paragraphs (e) and (f). In carrying out that balance, in my opinion, the application of s 104 as an exemption to the AD Act for the Proposed Policy would amount to a confined limitation on the right to equality before the law contained in s 15 of the HR Act, against the small, but important welfare measure to be extended to Indigenous people. Significantly, the Proposed Policy would not exclude non-Indigenous people from obtaining a permit in any one of the four other categories of permit.
  12. [59]
    In my opinion, the limitation of the human right to equal treatment under the law when s 104 is applied to the Proposed Policy can be reasonably justified in a free and democratic society based on human dignity, equality and freedom under s 13(1). 
  13. [60]
    I therefore conclude that s 104 will provide an exemption from the application of the AD Act for the Proposed Policy, so that it is not necessary for an exemption to be granted by the Tribunal under s 113 of the AD Act.
  14. [61]
    It may be that the Proposed Policy would also satisfy the requirements of s 15(5) of the HR Act, as a ‘special measure’. The language of s 15(5) of the HR Act is similar to, but not the same as, s 104 of the AD Act. However, the effect of s 104 of the AD Act applying, is that the Proposed Policy would not be unlawful discrimination under the AD Act. That in turn would mean that the requirements of s 15(2) and (3) of the HR Act will not be contravened.
  15. [62]
    Because ‘discrimination’ within the meaning of that term in the HR Act includes, but is not limited to, ‘discrimination’ under the AD Act, s 104 of the AD Act would amount to a justification of the Council in any complaint made against it under the HR Act. As a ‘public entity’[16] under the HR Act, the Council is amenable to a complaint for breach of a human right under the HR Act. Whilst only public entities may be the subject of a complaint under the HR Act,[17] as a general proposition, all entities, and not only public entities, are subject to a complaint under the AD Act. However, where the human rights concerned depend on whether the relevant act is discrimination under the AD Act, an exemption under the AD Act will mean that the relevant act is not a limitation of the human right under s 15 of the HR Act.

Conclusions

  1. [63]
    For these reasons it is not necessary for an exemption to be granted to the Council for the Proposed Policy under s 113 of the AD Act. Section 104 of the AD Act would allow the Proposed Policy to be implemented without being unlawful discrimination or a limitation of the human right to equal treatment under s 15 of the HR Act.
  2. [64]
    Accordingly, the application is dismissed.

Footnotes

[1] Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21, President Sofronoff QC at [12.2]-[13.1].

[2] Boeing, [13.1].

[3] Boeing, [12.2].

[4]  For example, by the QCAT Appeal Tribunal in Downer EDI Mining [2013] QCATA 276, and in Sundale Limited [2019] QCAT 83.

[5]  The Dictionary (schedule 1) of the AD Act.

[6]  Paragraph (5) of his affidavit.

[7]  And the Proposed Policy – page 2.

[8]  [2021] QCAT 198.

[9]  Section 5(2)(a) of the HR Act provides that the Act applies to courts and tribunals to the extent the court or tribunal has functions under part 2 and part 3, division 3 of the Act. Part 3, division 3 includes s 48. The Tribunal is a court of record – see s 164(1) of the QCAT Act.

[10]  As well as the cultural rights of Aboriginal peoples and Torres Strait Islander peoples under s 28(2)(d) of the HR Act.

[11]  Schedule 1.

[12] Sundale Limited [2019] QCAT 83, [30].

[13]  Section 14D of the Acts Interpretation Act 1954 provides that in an Act, an example does not limit, but may extend, the meaning of the provision.

[14] Opinion re: Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2.

[15]  Aboriginal tradition and Ailan Kastom of the Torres Strait Islander peoples is also recognised in clause 6 of the Preamble to the HR Act.

[16]  A term defined in s 9(1)(d) of the HR Act to specifically include a local government.

[17]  See s 63 contained in part 4, division 2, read with s 5(2)(c) and s 58.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council [No 2]

  • Shortened Case Name:

    Sunshine Coast Regional Council [No 2]

  • MNC:

    [2021] QCAT 439

  • Court:

    QCAT

  • Judge(s):

    Member Sammon

  • Date:

    22 Dec 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

Case NameFull CitationFrequency
Boeing Australia Holdings Pty Ltd & related entities (2003) QADT 21
2 citations
Jump To
Cite 1 - (2003) QADT 21
Cite 2 - (2003) QADT 21
Downer EDI Mining [2013] QCATA 276
2 citations
Jump To
Cite 1 - [2013] QCATA 276
Cite 2 - [2013] QCATA 276
Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2
2 citations
Jump To
Cite 1 - [2003] QADT 2
Cite 2 - [2003] QADT 2
Sundale Limited [2019] QCAT 83
3 citations
Jump To
Cite 1 - [2019] QCAT 83
Cite 2 - [2019] QCAT 83
Cite 3 - [2019] QCAT 83
Sunshine Coast Regional Council [2021] QCAT 198
1 citation
Jump To
Cite 1 - [2021] QCAT 198

Cases Citing

Case NameFull CitationFrequency
Re: Mackay Regional Council [2022] QIRC 643 citations
Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 4402 citations
1

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