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Burleigh Town Village Pty Ltd (3)[2022] QCAT 285

Burleigh Town Village Pty Ltd (3)[2022] QCAT 285

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Burleigh Town Village Pty Ltd (3) [2022] QCAT 285

PARTIES:

BURLEIGH TOWN VILLAGE PTY LTD

(applicant)

APPLICATION NO/S:

ADL022-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

27 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

THE APPLICATION FOR AN EXEMPTION IS REFUSED.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – SPECIAL MEASURES – where the Applicant seeks a renewal or further grant of an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate manufactured home park reserved for persons over 50 years of age – where manufactured home park marketed and sold as ‘over 50s’ – where tribunal previously granted exemption for age based discrimination – where earlier exemption expired – where new application for exemption – whether grounds for exemption – whether there are Special Measures – 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 – FUNCTION OF THE TRIBUNAL – the rights to equality and to equal protection of the law without and against discrimination – the right to own property alone or in association with others and not be arbitrarily deprived of the person’s property – the right to peaceful assembly and freedom of association – 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) – tests of justification and proportionality

Anti-Discrimination Act 1991 (Qld), s 7(f), s 45, s 46, s 76, s 77, s 82, s 83, s 113

Manufactured Homes (Residential Parks) Act 2003 (Qld)

Retirement Villages Act 1999 (Qld)

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

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

ABC Business Australia Pty Ltd [2013] QCAT 719

Body Corporate for Village Green (Caloundra) [2015] QCAT 101

Burleigh Town Village Pty Ltd [2017] QCAT 161

Burleigh Town Village Pty Ltd Rental Management Services Pty Ltd [2011] QCAT 646

Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328; 33 VR 139

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

Ghostgum Developments Pty Ltd [2015] QCAT 500

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

Matsoukatidou v Yarra Ranges Council [2017] VSC 61

Miami Recreational Facilities Pty Ltd [2021] QCAT 378

Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238

PJB v Melbourne Health (Patrick’s Case) [2011] 39 VR 373; [2011] VSC 327

Re: Ipswich City Council [2020] QIRC 194

Re: Mackay Regional Council [2022] QIRC 064

River Glen Haven Over 50s Village [2021] QCAT 26

Savannah FNQ Developments Pty Ltd [2016] QCAT 141

Stawell Regional Health (Anti-Discrimination Exemption) [2011] VCAT 2423

Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323

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

  1. [1]
    This is an application filed 14 July 2021 by Burleigh Town Village Pty Ltd, which seeks an exemption from the operation of the following provisions of the Anti-Discrimination Act 1991 (“the AD Act”):
    1. (a)
      Section 7(f) – discrimination on the basis of age;
    2. (b)
      Sections 45 and 46 – in the goods and services area;
    3. (c)
      Sections 76 and 77 – in the disposition of land area; and
    4. (d)
      Sections 82 and 83 – in the accommodation area.
  2. [2]
    The application seeks a broad and complete exemption from the operation of those provisions, without any limitation as to whether there are particular circumstances to which the exemption might apply in the conduct of the affairs of the Applicant.
  3. [3]
    The Applicant owns the land on which there is situated a manufactured home park, and the park is operated as a business by the Applicant. It is known as Burleigh Town Village and is at Township Drive in West Burleigh on the Gold Coast.
  4. [4]
    The specified basis for the application is that it is sought on the basis that the purpose for which the Applicant owns and operates the manufactured home park is for the provision of special accommodation solely for persons aged 50 or older. The Applicant contends that this is a purpose that falls within the terms of some kind of special purpose under the AD Act because it provides benefits for the aged.
  5. [5]
    The homes in the park each occupy a particular site, with the land on which they are situated being owned by the Applicant, and although the homes are demountable, the photographs in the material show that the homes look rather like smallish versions of houses that one might find in any new suburban environment. Occupancy for residents is protected by a perpetual site agreement in favour of the owner/ occupier under the Manufactured Homes (Residential Parks) Act 2003 (the Manufactured Homes Act). The material shows that these homes are readily saleable at prices well above $300,000.
  6. [6]
    The application does not seek an exemption from the operation of section 127 of the AD Act which provides that a person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act.
  7. [7]
    The exemption is sought for a period of five years or such other maximum period as is allowed under the Act. The maximum period for any such exemption is five years and no more.
  8. [8]
    Despite the description of the physical areas for which the exemption is sought, the material which is filed in support of the application is bereft of a description of the ways in which, in practical effect, this exemption if granted would operate.
  9. [9]
    The application is sought by the Applicant, and is also said to be by its employees, agents and officers, although the basis upon which it is asserted to be brought by those persons (as distinct from, for their benefit) is not identified in the application or the material generally.
  10. [10]
    Without any specific focus on particular conduct which the exemption is sought to be able to permit, the Applicant referenced in its submissions at paragraph 3.11 that it wanted the exemption to “be framed to apply equally to homeowners in the park seeking to sell their homes”.
  11. [11]
    The homeowners in the park are not a party to the application. No doubt their membership changes periodically as some residents are no longer there and new residents replace them. None of the homeowners have made submissions concerning it and there is little if anything to suggest they are aware of any controversy around it. The President of the Burleigh Town Village Homeowners’ Association has put in a letter of support which I will address later. That letter does not refer to any proposal that these orders ought be framed to apply equally to homeowners in the park seeking to sell their homes. The Applicant’s submissions do not frame the terms of any order that is sought from the Tribunal concerning some protection to be given to owners in the park seeking to sell their homes and I do not intend to entertain such an application stated or framed with such vague generality.
  12. [12]
    Before deciding the application, the Tribunal must give the Queensland Human Rights Commission (QHRC) a copy of the application and a copy of the material filed in support of the application and must have regard to any submission made by the QHRC on the application, including a submission on the process for considering the application.
  13. [13]
    Under the AD Act, s 7(f), and s 83, it is unlawful to discriminate against a person on the basis of age in the terms on which accommodation is offered or by failing to accept an application for accommodation. To publish or display an advertisement that describes the centre or facility as a facility for people over the age of 50 years would, potentially, indicate that a person intends to act in a way that contravenes section 127 of the AD Act. Section 127 of the AD Act provides that a person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act. It is not unlawful to promote the Park as suitable for older people and to target marketing at that demographic; see Ghostgum Developments Pty Ltd [2015] QCAT 500 at [49]; and ABC Business Australia Pty Ltd [2013] QCAT 719 at [14].

The proper approach to section 113 applications and necessary caution

  1. [14]
    The tribunal can grant an exemption from specific provisions of the AD Act in accordance with section 113 of the AD Act.
  2. [15]
    In Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 and again in River Glen Haven Over 50s Village [2021] QCAT 26, Member Traves considered the nature and extent of the statutory discretion in section 113 and made the following observations with which I agree.
  3. [16]
    The granting of an exemption is discretionary. There are no express criteria for the exercise of the discretion.
  4. [17]
    The statutory discretion, which has the potential to affect rights, is not absolute and unfettered, in that the extent of a discretionary power is to be determined by reference to the subject matter, scope and purpose of the statute under which it arises.
  5. [18]
    Finally, although the exercise of the discretion is not confined, and acknowledging the risks in applying a “self-imposed framework” that may not “embrace all considerations which could possibly fall within the objects, scope and purpose of the Act”, a number of decisions have outlined considerations which may be relevant to the exercise of the discretion. They include whether the exemption is necessary; whether it is appropriate and reasonable to grant the exemption and whether the exemption is in the community interest.
  6. [19]
    As I mention later, another acknowledged issue is what the effect of not granting the exemption would be.
  7. [20]
    The Tribunal is acting in an administrative capacity when deciding an exemption application under section 113 of the AD Act. Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164; Re: Ipswich City Council [2020] QIRC 194; Re: Mackay Regional Council [2022] QIRC 064. When acting in an administrative capacity, the tribunal is a public entity, and section 58 of the Human Rights Act 2019 (HR Act) applies to require the tribunal to give proper consideration to, and make a decision in a way that is compatible with, human rights.
  8. [21]
    The application is opposed by the QHRC and it has set out in lengthy submissions to the Tribunal dated 23 August 2021 the basis upon which the exemption application is opposed.
  9. [22]
    These kinds of applications have historically if not invariably, been heard on the papers with no opportunity to challenge assertions or submissions made or evidence produced in support of the Applications. They are not publicly notified, not even necessarily brought to the attention of parties that might be contradictors to the Applications, not for that matter other interested parties, for example in this case, the owners or residents of the manufactured home park whose interests are sought to be protected or affected or whose property interests might be affected by a positive outcome for the applications.
  10. [23]
    It is not difficult to imagine a circumstance where the owner or business operator of such a park or some other facility might obtain very significant commercial advantages from a situation in which an exemption of this kind exists. None of this evidence is made available for public scrutiny and none of it challenged. It may be presented as having advantages for disadvantaged individuals or perhaps even conceptually individuals who are discriminated against, or be said to be associated with benefits to those individuals, but in the long term there may be other significant outcomes which are under-explored in the material before the Tribunal.
  11. [24]
    In this case for example, the evidence relied upon by the QHRC is that there are many other competing manufactured home park operators who do not hold exemptions. In this case the QHRC has referred to a survey of manufactured home parks conducted by the Department of Housing and Public Works in 2013. Only 2% of respondents to the survey who lived in manufactured home parks were aged under 55, and 88% were aged over 65. There were 168 manufactured home parks in Queensland at that time, and only 9 had been granted tribunal exemptions to restrict accommodation to older people. All of them predate the commencement of the HR Act. The material before me shows that, as at 31 May 2021, there were 26 Residential parks in the Gold Coast region offering 3902 home sites, of which this Applicant offered an additional 202 home sites. It is not clear how many, if any, had exemptions. The issue of how 159 of the 168 manufactured home parks in Queensland at that time operated without the need for a Tribunal exemption to restrict accommodation to older people is left untouched.
  12. [25]
    Because there is no mechanism when these applications are heard on the papers for there to be a challenge to the stated motivations or intentions of an Applicant in seeking an exemption, there is no real opportunity to ascertain whether there are other significant outcomes that flow to an Applicant which are not mentioned or addressed in the application material.
  13. [26]
    For example, there might conceptually be a commercial basis for an application driven by the notion that by limiting the categories of residents to those who would not live in the park for extended periods, or would live there for shorter periods, there may well be a commercial advantage each time one of these homes changes hands, for example if a fee were to be paid each time it changed hands. Another hypothetical example might be that attracting a particular class of resident to such a park, for example those who are on welfare benefits, might provide ease of administration and confidence that rental payments would be bid regularly and on time.
  14. [27]
    The limitations that are presented when applications are heard on the papers mean that the Tribunal must be astute to ensure that the decisions it makes are objectively sustainable and reasonable, and do not take at face value everything that is put forward in support of the grant of an exemption. It should be clear that there are not unforeseen or unintended consequences in granting such exemptions. The interests of unheard from parties or other potentially affected persons need to be considered, where possible.

This application and retrospectivity

  1. [28]
    The 2017 exemption expired on 19 July 2021. The Applicant applied for a further exemption only a matter of days before the earlier exemption expired and did not obtain a further exemption to cover the period since 19 July. Somehow, it has managed to continue to operate notwithstanding the absence of an exemption for almost 12 months. The Applicant did not make any submissions which gave any assistance or guidance as to how this problem was to be resolved. It referred to no law on the point.
  2. [29]
    I accept, on the basis which was the subject of analysis by Member Gordon in Miami Recreational Facilities Pty Ltd [2021] QCAT 378 at [104]-[107], that the Tribunal has power in effect to grant the exemption from the day of the expiry of the last exemption, giving the practical effect that the Tribunal’s order would take effect retrospectively. In that regard he said (footnotes omitted):

[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.

[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 and Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380 is that it is determined by the terms of the enabling Act, where this contains the power under which the tribunal is acting.

[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.

The 2017 exemption and the HR Act of 2019

  1. [30]
    This Tribunal has previously granted this Applicant two previous exemptions, although neither of them was considered in circumstances in which the HR Act was operable. That Act commenced its operation on 1 January 2020 and has considerable significance for the purposes of considering whether to grant yet a further exemption.
  2. [31]
    At the time when the second exemption was being considered in May 2017 by Member Stilgoe, the current legislative requirements to have regard to the HR Act were not a consideration.
  3. [32]
    In considering whether in 2017 to grant an extension of the exemption for a second occasion, Member Stilgoe recognised that at that time the Village had been operating as an over 55 age facility since 1998. It now seeks to operate as an over 50’s age facility The history she recited in her reasons included that the then Anti-Discrimination Commission had advised in 1997 that the proposed restriction to persons over 55 was permissible, and the Applicant had relied upon that letter as permission until 2010 when its lawyers alerted it to the need for a formal exemption. An exemption was then obtained in 2011, and extended or renewed in 2017.
  4. [33]
    Member Stilgoe recognised that the age restrictions limiting residents to the park to 55 or over were widely advertised and that of the last 122 new entrants of the park, 80% were over the age of 65, 74% were over the age of 75, and 20 residents had lived in the park for at least 25 years. The material before me on this application shows something similar.
  5. [34]
    The Member regarded it as significant that if the Tribunal refused to grant the exemption, elderly long-term residents, who had entered the park on a particular expectation, would be faced with the potential for a significant change in their lifestyle.
  6. [35]
    One of the matters raised before Member Stilgoe, and also in this application, is the inappropriateness of there being a continual grant of extensions and allowances of sequential applications for temporary exemptions in circumstances where individuals may commit themselves to a particular lifestyle, or to property interests only to find that exemptions which might only last for five years expire and are not renewed or other material circumstances changed.
  7. [36]
    The Tribunal in 2017 accepted that the residents of the Village had chosen to live in the park because of perceived financial benefits of a park over a retirement village and that there was no non-discriminatory way of achieving the objects for which the exemption was sought at that time. The Anti-Discrimination Commission, the predecessor of the current QHRC, had argued in that second exemption application that in the absence of clear legislative policy to the contrary, the manufactured home park model of affordable housing should be made available and treated as available to all age groups and not become exclusive to individuals aged over 55 in that case.
  8. [37]
    As has been submitted here as well by the QHRC, it was submitted before Member Stilgoe that the temporary exemption model should not be used for the establishment of permanent arrangements or to circumvent existing legislative or government policy. That proposition was in principle accepted by Member Stilgoe, however the exemption was granted by her on the basis that it did not provide certainty for the operators or the residents if one were refused, and that a manufactured home park did not offer the same protection as a retirement village concerning the ability to age discriminate.
  9. [38]
    The Member in 2017 considered evidence which is not materially different in any significant way to the evidence which is before this Tribunal on the present application concerning the availability of an alternate accommodation for the aged community, particularly in the context of a manufactured home park operation.
  10. [39]
    Member Stilgoe was satisfied that there was a community benefit in maintaining the park as an over 55’s community, that there was a need for affordable housing for retirees, and that this was a convenient location which gives retirees access to services and community engagement. She observed statistical material before the Senate Economic References Committee which expressed concerns about the manufactured home park model for retirees, particularly concerning the existence or absence of tenure, park operators focus on the development potential of such sites and the lack of regulatory environments to ensure consumer protection and risk management with these parks.
  11. [40]
    Member Stilgoe also considered the effect of not granting the exemption. She regarded as significant that all of the residents in the park at that time were aged over 55, the age restrictions were widely advertised and that if the application were refused, the expectations of long-term residents would be met. She considered that there was no non-discriminatory way of achieving the objects for which the exemption was sought.
  12. [41]
    Quite properly, the Member recognised that these exemptions should not be used to circumvent the application of the more onerous Retirement Villages Act 1999 (Qld), which does not of course apply to these parks.
  13. [42]
    In the end, the application was granted, after what was said to be a careful examination of whether there is merit in supporting an exemption where an alternative model is available. And that manufactured home park owners should not be expected that the development, advertising, sale and operation of an age limit park will necessarily result in an automatic grant of an exemption, but on the basis that retirement villages were different from manufactured home parks and there was no non-discriminatory way of achieving the objects for which the exemption was sought, particularly having regard to the fact that there was a lack of appropriate affordable housing for older Australians, that exemption was granted.
  14. [43]
    In granting the earlier 2017 exemption, the Member appeared to accept, without identifying any particular conduct to which the exemption operated so as to avoid contravention of the AD Act, that without an exemption the Applicant would in its operations, breach section 7(f) of the Act as discrimination on the basis of age. I’m satisfied that the mere operation of the manufactured home park would not breach section 7(f). Such a breach would need of course to be referable to particular conduct to ground a contravention on the basis of discrimination on the basis of age or any other category of prohibited discriminatory conduct.

The present application, the grounds relied upon and the “necessity for an exemption”

  1. [44]
    One of the points that is made by the QHR Commissioner, (the Commissioner) to which there is no directly responsive submission from the Applicant is that the material before me does not include the standard site agreement pursuant to which owners or other residents are required to enter into or explain how the exemption would be applied and enforced in practical effect. That is indeed a deficiency in the material however, it is not necessarily fatal to the application in circumstances where it could otherwise be demonstrated that the exemption ought be granted in principle.
  2. [45]
    I do not agree that the Applicant needs to explain how it discriminates on the basis of age, in order to establish that its conduct constitutes a prima facie contravention or contraventions of the AD Act.
  3. [46]
    I accept though that the Applicant needs to establish that there is no other reasonable means of achieving the purpose for which the exemption is sought. It has always been considered relevant as to whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought. Member Stilgoe said as much when considering the 2017 exemption application
  4. [47]
    The Commissioner submits that all the factors pointed to by the Applicant seeks to justify conduct requiring an exemption would indicate that an exemption is not necessary to achieve the purpose of providing affordable accommodation to like-minded people relative to their age. He submits that it is not unlawful to promote the Park as suitable for older people and to target marketing at that demographic.
  5. [48]
    The Commissioner has submitted that an exemption is not necessary to achieve the purpose of providing affordable accommodation, considering the fact the Park has been operational since 1987 but had first sought an exemption in 2011.
  6. [49]
    Unfortunately, the submissions for the Applicant do not particularly focus upon the issues raised in the Commissioner’s opposing submissions and specifically the statutory requirements to establish the basis for the exemption. In large part, the submissions direct themselves to what is described as the necessity “to prevent disadvantage to people aged over 50 due to the lack of alternative affordable and long-term housing options for older Australians and to preserve this option from becoming unaffordable due to general housing market influence.”
  7. [50]
    The Applicant contends in response to this, by reference to paragraph [22] of Mr Beck’s affidavit, which notes the reason the exemption was sought in 2011 was following the introduction of the Manufactured Homes (Residential Parks) Amendment Act 2010, in order to preserve the amenity of the Park for those who had previously purchased in the Park on that understanding.
  8. [51]
    The Applicant also refers to the Affidavit of Geoffrey Allen dated 28 March 2017, submitted in support of the previous application for exemption in July 2017. That affidavit is referred to in Burleigh Town Village Pty Ltd [2017] QCAT 161 at [17], in reference to prior to that application, the-then Anti-Discrimination Commission had advised the Applicant that the proposed restriction was 'permissible' in a letter dated 25 November 1997 and is the reason the Park had been operational without seeking an exemption.
  9. [52]
    The Applicant contends a change to the structure would be disruptive and disarming for those existing residents who bought into the Park on this basis.
  10. [53]
    Whilst it is undoubtedly relevant to know, if it is in truth the case, that individuals have bought into the park on some understanding or expectation that there would be an exemption, or that there would be a means by which to control who resided in the Park which was discriminatory of young persons; to my mind, that is a relatively insignificant consideration. The protections against discrimination which are set out in the AD Act, read now with the identified protectable rights in the HR Act, reflect the legislature’s and thus the community’s expectations for decisions on exemptions or exceptions which permit such otherwise unlawful discriminatory behaviour. To give effect to understandings or assumptions of others which are inconsistent with those expectations would need considerable justification.
  11. [54]
    The fact that particular individuals would like those around them to have particular social cultural or age-related features, or that they bought into a park on the basis that it would have those features, is an issue of relatively little moment.
  12. [55]
    I struggle with the assertion that not granting this exemption would change the structure of the Park. It clearly would not do so because there is already an existing membership of the Park which fits the mould which the former exemption permitted. The refusal of an exemption in this case will not compel the Park operator to evict anyone or to change the structure of the Park. One imagines, at least conceptually, that if this exemption did not exist, there might be a time when existing residents sought to sell their homes, and in the course of doing so there may be interest shown by persons who are less than 50 years. That is no more than an hypothesis. There is no evidence to suggest that there has been any direct interest shown by persons under 50 in purchasing into this Park hitherto.
  13. [56]
    Nor do I accept that even if there was no exemption, and if conceptually under 50’s could reside in the Park that this would be genuinely disruptive and disarming for existing residents, as the Applicant contends. 
  14. [57]
    I do not however accept the QHRC’s submission that the fact that this Park was able to operate without an exemption a very long time ago indicates that it is not necessary for such an exemption to exist to provide affordable accommodation. Having said that, the Applicant has not persuaded me that, unless granted this exemption, it cannot provide affordable accommodation to like-minded people relative to some particular age. There are, as the Commissioner has pointed out, numerous ways in which that purpose could be promoted without contravening the AD Act.
  15. [58]
    The Applicant contends that the Application is made to provide age-appropriate accommodation to a demographic for whom there is, and for the foreseeable future will be, a specific housing need and shortage, which is expected to worsen as a result of an ageing population. The Applicant contends that this leaves little option for older Australians who may not be able to afford to reside in a retirement village and those who do not require a nursing home.
  16. [59]
    Whilst the QHRC relies on the fact that an exemption is not necessary to achieve the purpose of providing affordable housing for older Australians, the Applicant contends that the recent increase in housing demand means this demographic is more likely to become priced out of other previously affordable accommodation options.
  17. [60]
    The Applicant accepts that the lack of affordable housing is an issue in relation to other demographics, but that if the exemption is denied, there is the potential for displacement of older persons due to their specific vulnerabilities.
  18. [61]
    The Applicant also refers to the report Dr Sandra Woodbridge which notes that older Australians have a lack of opportunity to seek affordable alternative options, including the potential for older homeowners to require additional funds to purchase a different type of home. Securing additional funds is particularly difficult for older Australians who may be retired, and banks are more likely to decline finance applications from this cohort due to age-based limitations on their ongoing earning ability.
  19. [62]
    The Applicant contends that if no exemption is granted, despite marketing targeted toward older individuals, the Park is unable to deny younger Applicants due to their age. That is clearly correct.
  20. [63]
    The Applicant contends, as I noted earlier, that given the current housing market and lack of detached dwellings within a similar price range, “this scenario is becoming more probable and has the effect of increasing the market value of the homes within the Park to align with market value in the area. This would make it more difficult for older Australians to secure appropriate housing, noting the concerns with securing additional funding stated above. The potential for displacement and uncertainty about the future of their living situation is an important factor in granting the exemption, as the ability to age in place in an appropriate home was identified as a vital component of wellbeing in older people”.
  21. [64]
    The Applicant contends that the social problem of housing affordability in Australia generally will not be compounded (presumably meaning the opposite, ie. improved) by refusing the exemption sought by the Applicants, which itself addresses another social problem, being the provision of suitable housing for older Australians.
  22. [65]
    Therefore, the Applicant maintains there is a need for the exemption, noting the disadvantage of people aged over 50 due to the lack of affordable housing options for them and the necessity to preserve the option presently offered by the Applicant from becoming unaffordable due to price movements in the general housing market.
  23. [66]
    This misses the point. This facility already does provide this affordable housing options for people aged over 50. There is nothing to suggest it will not continue to do so if this exemption is not granted. The so-called necessity to preserve the option presently offered by the Applicant from becoming unaffordable due to price movements in the general housing market is another way of saying that if under 50’s can potentially live there, prices will go beyond the reach of persons over 50 and they will cease to be able to live there. To my mind none of that follows. Those who live there now will presumably still do so.
  24. [67]
    It may be readily accepted that there is a social problem relating to housing affordability in Australia. The objective evidence is that this is an issue not only for persons over 50, but for many others who are much younger. The lack of means, which it seems to be assumed that persons over 50 have, is not demonstrably different to the lack of means that may be found across the community generally. In my view, the claimed connection between the grant of this exemption, and meeting specific social need for affordable housing for persons over 50 is not demonstrated. I accept that the need exists. I do not agree that the grant of this exemption is necessary before that need can be met.
  25. [68]
    The argument around artificially limiting property prices or values to ensure property is affordable to persons over 50 is, as I describe later in this judgment, a problematic social experiment in attempting to control values in the property market.
  26. [69]
    If there is seen to be a need to create subsidised housing opportunities, or to create artificial limits on the prices which persons can obtain for their manufactured homes, that is a matter for the legislature, not this Tribunal.

The manufactured home park vs retirement village point

  1. [70]
    The Applicant contends that the Australian Housing and Urban Research Institute report (AHURI Report) dated August 2019 found that 80% of older Australians want to live in a home they own, rather than the private rental market, due to the desire to live in long-term stable housing, with 69% of those surveyed wanting to live in a detached dwelling. The AHURI Report identified that there is unmet demand for separate houses, two and three-bedroom dwellings and home ownership.
  2. [71]
    The Applicant contends that many such owners would have deliberately chosen to live in a manufactured home park rather than in a retirement village on account of some or all of those points of difference, particularly those that go to affordability. There is some evidence of this provided by the AHURI Report, which found that high exit and entrance fees in retirement villages (properly so called) were a concern, and that those older homeowners or renting subsidised accommodation and in receipt of the age pension were likely to have an adequate income to live a decent lifestyle in those circumstances.
  3. [72]
    The Applicant contends that the houses in the park are cheaper to purchase than a traditional house due to the lack of land cost and stamp duty, and upon sale, homeowners retain the full benefit of any capital gain.
  4. [73]
    The Applicant contends that the fact that the park to which the Application relates (the Park) is not - and almost certainly will never become - a "retirement village" under the RV Act ought not be a barrier to the Application if, otherwise and consistent with prior authority, to grant the exemption is appropriate and reasonable. That proposition is itself evidently correct. It does not in my view affect the outcome of this application.
  5. [74]
    It may well be that some owners have chosen to live in this manufactured home park rather than a retirement village because of the affordability of homes in these parks. Interestingly, there is no evidence before this Tribunal by the Applicant which shows what, if any, exit and entrance fees are charged for those moving in or out of this Park. The assumption which I am apparently asked to make is that there are none, or that they are significantly lower than those which are charged in retirement villages. Whatever the true position, this is merely another example to explain why manufactured home parks are attractive. They would be equally attractive for the same reasons to any persons who were of limited means. Whether this exemption is granted or not granted will not affect whether such parks are attractive to so-called older Australians.

The effect of not granting or the loss of an exemption

  1. [75]
    Notwithstanding the terms of the application, in the course of written submissions by the solicitors for the Applicant dated 14 December 2021 at paragraph 2.6, it was submitted that if no exemption was granted;

“Despite marketing targeting toward older individuals, the park is unable to deny younger applicants due to their age. Given the current housing market and lack of detached dwellings within a similar price range, this scenario is becoming more probable as the effect of increasing the market value of the homes within the Park to align with market value in the area. This would make it more difficult for older Australians to secure appropriate housing, noting the concerns with securing additional funding stated above. The potential for displacement and uncertainty about the future of their living situation is an important factor in granting an exemption, as the ability to age in place in an appropriate home was identified as a vital component of wellbeing in older people” (sic).

  1. [76]
    The proposition put by the Applicant appears then to be that in some way or another this Tribunal, exercising an administrative function, should engage in policy analysis of the appropriateness of artificially limiting the prices which can be attained for such accommodation, by ensuring the use and sale of it is to persons who would have limited means. In my view, that is not the function of this Tribunal in deciding whether to grant an exemption. On one view of it, it would be an entirely irrelevant and improper consideration.
  2. [77]
    Similarly, the question of whether there ought be a social policy of providing affordable or indeed low-cost accommodation to persons over 50, is a policy consideration which the Parliament might well direct itself to. It might for example legislate, as it has in the context of retirement villages by under the Retirement Village Act, there is an express provision exempting the operators of such parks from the operation of the AD Act such that it is deemed not unlawful for a scheme operator to discriminate on the basis of age, if the discrimination merely limits residents in a retirement village to older members of the community and retired persons. Section 26 of the Retirement Villages Act 1999 (Qld) does something like this in a different context.
  3. [78]
    There is no equivalent provision in the Manufactured Homes Act which provides such an exemption. It does not follow because of the absence of an equivalent provision in the Manufactured Homes Act that an exemption ought not be granted by this Tribunal pursuant to its powers under s 113 of the AD Act. However, when considering policy considerations, in my view it is not appropriate for this Tribunal to treat a policy consideration which justified the statutory exemption of s 26 of the Retirement Villages Act as justifying the recognition of some broader policy that, in manufactured home villages, there should be a non-statutory recognition which ensures that low cost accommodation is available in such villages to old or older members of the community, or those who are of limited means. Those are matters for the legislature. The applicable policy of the legislature in this context is to be found in the AD Act and the HR Act.
  4. [79]
    The regulatory structure for these Parks is to be found in the Manufactured Homes (Residential Parks) Act 2003 (“the Manufactured Homes Act”). Under that Act, a homeowner has a statutory right to sell the manufactured home positioned on the site and the park owner has statutory obligations not to hinder the sale by a homeowner, not to hinder the assignment of the seller’s interest in a site agreement, and not to unreasonably refuse to consent to an assignment. See s 77, s 56, s 58, s 43 and s 49(3). Having regard to that statutory structure, and the rights established under the Act, there seems to me to be at least the potential for inconsistency between the rights established under that Act, which do not limit, for example the capacity of a homeowner to sell their interest in a site, to any person of any age and a denial of their right to unreasonably refuse to consent to an assignment, for example where that assignment was sought to be made to a person who was 50 years or younger.
  5. [80]
    To summarise, on this issue, whilst it is undoubtedly a matter of social significance that there are individuals who are aged over 50 who are at a disadvantage in terms of obtaining alternative, affordable and long-term housing options, particularly low cost housing options, and there is no question that the motives of this operator are well placed insofar as it seeks to prevent that disadvantage, or provide opportunities to persons over 50 which might not otherwise be available, it does not follow that an exemption should be granted just for the purpose of ensuring that well-placed motive or policy can be achieved.
  6. [81]
    Although I respectfully agree with Senior Member Stilgoe in relation to her comments in granting the 2017 exemption that one of the relevant considerations is the community interest and that it is a relevant matter to be considered whether there are expectations by present residents of the park that the residents would continue to be of a certain age, those expectations do not provide an overriding basis for the grant of an extension or renewal or further grant of an exemption.
  7. [82]
    Were it otherwise, it would have the effect of creating some sort of de facto entitlement or expectation of the grant of further exemptions once one exemption had been granted. Persons might alter their positions on the basis of a present exemption and the expectation that it would be further extended but the fact remains that there is no legal entitlement to such an exemption, least of all any guarantee that there will not be legislative changes (such as those which were brought into existence on the commencement of the Human Rights Act on 1 January 2020) which might alter the circumstances in which an exemption might be granted.
  8. [83]
    Member Gordon noted in the Miami Recreational Facilities case also held that it was relevant to consider the effect of the loss of the exemption. In that matter, he was looking at effects which were both social and on the property interests and expectations of others. There was evidence before her that if an exemption was not granted, undue stress or anxiety would be caused to elderly people, in that case, in a retirement village, which of course has a different statutory regime to that which we have here.
  9. [84]
    One of the issues Member Gordon considered, which is relevant here also, is that if the exemption were not granted, unit values would increase because that would allow the homes to meet the market price in that area, and that the result would make it a less affordable location. If there was no exemption for the housing, its cost would eventually meet the market for a prestigious, near-beachfront location.
  10. [85]
    There could be no doubt that in more recent times in this Tribunal there has been considerable emphasis on whether there are other non-discriminatory ways to achieve the restrictions in, for example, residential villages, and that the Tribunal had shifted away from granting exemptions. This includes refusing applications that effectively sought to create de facto village retirement status without the commensurate responsibilities, as recorded in the Reasons of Member Gordon in Miami Recreational Facilities case at [44]-[46]. This reasoning ultimately established the proposition that if a non-discriminatory way of achieving the same result emerged, namely of providing age-specific accommodation, although not necessarily limited to providing it only to those individuals emerged, then the Applicant would not be successful in their next application for an exemption.
  11. [86]
    I accept that the Applicant here is not seeking to obtain de facto retirement status without commensurate responsibilities, however for the reasons I have already mentioned, I am not satisfied that there is not a non-discriminatory way of providing relatively low-cost residential accommodation for persons over the age of 50, except by granting this exemption.

Application of Human Rights Act

  1. [87]
    It is clear that the tribunal has obligations under the HR Act in interpreting statutory provisions and in decision making in a way that is compatible with human rights, so far as is possible to do, including with regard to the discretion to grant or renew an exemption from the operation of specified provisions of the AD Act.
  2. [88]
    The substantive obligation under s 58(1)(a) the HR Act is to act and make decisions in a way that is compatible with human rights, and the procedural obligation in s 58(1)(b) is to give proper consideration to human rights that are relevant to the decision.
  3. [89]
    The term ‘compatible with human rights’ is defined in s 8 of the HR Act as follows:

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

(a) does not limit a human right; or

(b) limits a human right only to the extent that is reasonable and demonstrably justified in accordance with section 13.

  1. [90]
    Guidance about the meaning of ‘giving proper consideration’ to a relevant human right is provided for in s 58(5), by stating that it includes, but is not limited to (a) identifying the human rights that may be affected by the decision; and (b) considering whether the decision would be compatible with human rights. It is clear that the procedural and substantive limbs of s 58 are cumulative, requiring a decision-maker to give proper consideration to human rights and then to make a decision in a way that is compatible with those human rights.
  2. [91]
    Whether an exemption under s 113 of the AD Act would engage human rights can be seen by reference to the effect of the exemption, if granted; see Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 at [310].
  3. [92]
    In this case, the application is made by the Park owner for its benefit and the benefit of its employees, agents, and officers. And, as I have said, also the owners apparently. The effect of the exemption sought would be to allow the Park owner to discriminate on the basis of age in the areas of accommodation, goods and services, and in the disposition of land.
  4. [93]
    The Applicant concedes that the Tribunal must act and make decisions in a way compatible with human rights, in that a decision should not limit a human right or limit it only to the extent reasonable and demonstrably justified in accordance with s 13 of the HR Act.
  5. [94]
    It is not disputed that the tribunal should have regard and proper consideration to human rights and make a decision compatible with those rights.
  6. [95]
    The Commissioner submits that the relevant exemption is not a proportionate limitation on the right to equality and protection against discrimination.
  7. [96]
    The Applicant relies on the decision of this Tribunal in Miami Recreational Facilities for the proposition that the nature of the human right affected by an application of the kind made by the Applicant is:

the right to equal and effective protection against discrimination, in that granting the exemption would affect those persons below 50 in being denied an opportunity to be a resident in the relevant development (the Park in this case).32 In that matter, Member Gordon balanced that limitation against the nature of the purpose of the limitation to provide "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". It was also noted that a purpose was to provide more affordable housing to persons aged over 50. In relation to the nature of the purpose of the limitation, Member Gordon stated "[T]here is nothing inconsistent between those purposes and a free and democratic society based on human dignity, equality and freedom".

  1. [97]
    The Applicant also submits that the age limitation is “a legitimate and proportionate limitation on the relevant human rights, with particular reference to the nature of the purpose of the limitation and the lack of less restrictive and reasonably available ways to achieve that purpose in accordance with s 13 of the HR Act, and the Tribunal's observations in Miami Recreational Facilities.”
  2. [98]
    The QHRC’s concerns about exemptions that allow age restrictions in accommodation include:
  1. Tribunal exemptions are temporary and not suited to permanent arrangements such as accommodation;
  2. Housing affordability is a national concern for all, irrespective of age;
  3. Segmenting housing by age is not consistent with an inclusive age-friendly community;
  4. All age groups benefit from intergenerational engagement, whereas working and socialising in age-segregated worlds does not promote a healthy society;
  5. Negative stereotypes about children and younger people is not a proper basis for granting an exemption;
  6. Queensland has an existing legislative framework that allows discrimination on the basis of age, under the Retirement Villages Act 1999;
  7. The residential complexes with age restrictions do not necessarily cater for age-related disabilities;
  8. Where accommodation and facilities are accessible, younger people should also be able to benefit;
  9. The ages of 50 and 55 are not old, particularly considering that eligibility for the age pension is currently 67 years;
  10. Affordable and accessible accommodation for seniors can be achieved through non-discriminatory means.
  1. [99]
    In my view, the QHRC’s concerns are properly held. In particular, the issues concerned with housing affordability nationally and the assumptions that was very characteristic of children or younger people or indeed persons under 50. There is, by the way, no evidence to suggest that this park is likely to attract interest from families with children, having regard to the size and nature of the accommodation provided, and the facilities which are tailored to the use of older citizens.

The right to equality

  1. [100]
    I accept that the Application affects the rights to equality and to equal protection of the law without and against discrimination set out in s 15 of the HR Act. They are rights based on Articles 16 and 26 of the International Covenant on Civil and Political Rights.
  2. [101]
    Section 15 of the HR Act provides:
  1. 15Recognition and equality before the law
  1. (1)
    Every person has the right to recognition as a person before the law.
  2. (2)
    Every person has the right to enjoy the person’s human rights without discrimination.
  3. (3)
    Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  4. (4)
    Every person has the right to equal and effective protection against discrimination.
  5. (5)
    Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [102]
    The purpose of s 15(5) is to promote substantive equality.
  2. [103]
    If the activity is a special measure within s 15(5), the activity would be compatible with human rights. If it is not a special measure, then the justification test in s 13 of the HR Act is to be applied.
  3. [104]
    The onus lies with the Applicant to establish that the activity to which the exemption is sought is a measure within s 15(5) or is justified under s 13, and the standard of proof is the balance of probabilities. The Applicant does not submit that it is a measure within s 15(5) but I will consider the position in any event.
  4. [105]
    Section 15(5) qualifies the rights listed in s 15(2) and s 15(3). While not formally named as a ‘special measures’ provision, the measures described in s 15(4) have been referred to as ‘[s]pecial measures’ for example in the Explanatory Memorandum (Explanatory Memorandum, the Victorian Charter of Human Rights and Responsibilities Bill 2008, (10), and s 15(4) has been referred to as a ‘special measures’ provision in case law (see, e.g., Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [88], [100], [117], [165], [230]).
  5. [106]
    Where s 15(5) is satisfied, there is no need to consider whether a limitation on either s 15(2) or s 15(3) is justified under the HR Act. When s 15(5) is satisfied, there is no incompatibility with the right to recognition and equality before the law, because there is no discrimination (Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [88], [259]; Stawell Regional Health (Anti-Discrimination Exemption) [2011] VCAT 2423 [35]; Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 [59]).
  6. [107]
    Section 15(5) also benefits courts and tribunals. Where a court or this tribunal adopts measures to accommodate the procedural needs of people who are disadvantaged because of discrimination, such measures will not themselves constitute discrimination (Matsoukatidou v Yarra Ranges Council [2017] VSC 61 [45]).
  7. [108]
    To satisfy s 15(5), the proposed special measure must meet a number of requirements.
  8. [109]
    First it must have the purpose of assisting or advancing the identified disadvantaged and discriminated against group or person. The effect of the proposed special measure is not as relevant as the purpose, which must be objectively proved (Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [262]). Conceptually at least this measure does have the ostensible or stated purpose of assisting or advancing the identified disadvantaged group.
  9. [110]
    Secondly it must be reasonably likely to advance or benefit the disadvantaged group. In this context, assistance or advancement requires acting pro-actively and beneficially toward them (see Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [263]).
  10. [111]
    Thirdly it must address a need, and go no further than necessary to address that need (see Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [264]) This is probably not made out here because the need is not one solely being met by this Applicant. There are, as I have said, 25 other similar operations in the Gold Coast region alone.
  11. [112]
    Fourthly, the discrimination must be the cause of disadvantage to the person or groups to whom it must be reasonably likely to advance or benefit the disadvantaged group. That is not clearly the position here. The perceived disadvantage to the person or groups to whom the Application is likely to advance is based on their age and/or wealth and/or the limited availability of low-cost housing.

The application of the justification test

  1. [113]
    The justification test in s 13 of the HR Act must then be applied.
  2. [114]
    The Applicant must demonstrate that the limitation is demonstrably justified in a free and democratic society based on human dignity, equality and freedom, in accordance with s 13 of the HR Act, i.e. by application of the proportionality test.
  3. [115]
    The nature of the test was comprehensively described in Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 at from [323] to [334]. At [326] the tribunal said that 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.
  4. [116]
    In the Lifestyle Communities case, the Tribunal described the right at [389] as:

“The right to equality is the right to substantive equality. It is a right of the first importance. Equality and non-discrimination are the foundations of the rule of law and democratic society”.

  1. [117]
    I accept that every individual in Queensland not over the age of 50 years has an equal right to be protected from discrimination on the basis of their age and from the exclusion of them from inexpensive accommodation they otherwise qualify for on the basis of their age. The claimed justifications for this exemption include helping ageing population. I do not consider that excluding people under the age of 50 years from buying in a residential complex of this kind.
  2. [118]
    Placing an age restriction of 50 years and excluding those of any age below that threshold from ownership and occupation of a residential complex is, in my view, disproportionate to the purpose of providing affordable accommodation suitable for elderly retirees. The limitation and the means sought to be imposed is not proportionate and appropriate for achieving that purpose.
  3. [119]
    I accept that it is a desirable policy outcome that affordable accommodation should be available to all individuals in Queensland. It should not be based on arbitrary distinctions based on perceived compatibility.
  4. [120]
    The President of the Burleigh Town Village Homeowners’ Association has provided a letter in which he says that the collective reasons that the residents purchased in an over 50s park include security and like-minded people, that is, those who are either retires or looking to retire in the foreseeable future.
  5. [121]
    The issue of security is largely if not entirely irrelevant, and a matter for the operator to address. If it is to imply that the premises will be not secure or there will be threats to the security of residents if people under 50 are allowed in, it is clearly another age-based stereotype. It is impossible to imagine that there aren’t already visitors to the Park on a regular basis who are under 50. It is not suggested that this has created a security issue.
  6. [122]
    As for “like-minded people”, that assumes that persons over 50 are like-minded. It assumes that persons under 50 are not capable of being like-minded with those who are over 50. These are nothing more than further stereotypical generalisations.
  7. [123]
    The President of the Burleigh Town Village Homeowners’ Association also says that the residents would be “very disadvantaged” if the exemption is refused because they would then be faced with having neighbours who have a very different set of values and possibly children living in the village. He also says the residents have done their time living with children. In my view it is not a legitimate function for the grant of exemptions under the Act to promote association between individuals who share values, and to exclude persons with different sets of values to others.
  8. [124]
    Views may well differ on whether this exemption is reasonably likely to advance or benefit the disadvantaged group for a very long time, after the existing aged residents no longer live there or have been replaced. After all, the existing residents will remain the residents irrespective of whether this exemption is granted.
  9. [125]
    The purpose of providing an environment that appeals to older people can be achieved through alternate legitimate means such as the provision of facilities which will appeal to that age group and activities, and targeted marketing. If noise is a problem, for example, that is a matter for the operator to manage rather than seek the exercise of an exemption to apply a blanket rule that excludes all those below 50.
  10. [126]
    I am not persuaded that the Applicant has demonstrated that the age limitation is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination.

Freedom of association

  1. [127]
    The QHRC also argues that the proposed exemption may also engage the right to freedom of association set out in s 22(2) of the HR Act’.
  2. [128]
    Section 22 of the HR Act provides:

22Peaceful assembly and freedom of association

  1. (1)
    Every person has the right of peaceful assembly.
  2. (2)
    Every person has the right to freedom of association with others, including the right to form and join trade unions.
  1. [129]
    I am not persuaded that, even if one feature of the Park is community living and engagement, the exemption would limit the right to freedom of association in any material sense that is referenced in s 22 of the HR Act. Owners are free to associate with whomever they wish, both inside and outside the facility.

Property rights and section 24 of the HR Act

  1. [130]
    The Commission also argues that the proposed exemption also affects the property rights identified in s 24 of the HR Act. Section 24 provides that all persons have the right to own property alone or in association with others and that a person must not be arbitrarily deprived of the person’s property. This language is taken from the Universal Declaration of Human Rights Adopted and proclaimed by General Assembly resolution 217 A(III) of 10 December 1948. In Article 17, there is provided in similar terms to our s 24 HR Act that.
  1. 1.Everyone has the right to own property alone as well as in association with others.
  1. 2.No one shall be arbitrarily deprived of his property.
  1. [131]
    The meaning of ‘arbitrary’ includes conduct which is capricious or disproportionate. Informed by international and comparative human rights cases, the meaning encompasses a lack of proportionality or justification and objective unreasonableness. Reference can be made to the decision in Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328; 33 VR 139 at [63]-[64] concerning the right to privacy. Whilst that decision was overturned on appeal, this issue and its reasoning was not the subject of the appeal. 
  2. [132]
    The protection of property in this context is a limited one. As Professor Simon Evans has noted, ‘the prohibition on arbitrary deprivation is rather more limited than a guarantee of compensation for all deprivations of property’ and the ‘extent of protection afforded by the Universal Declaration in relation to private property ownership is vague at best” (see: Simon Evans, ‘Should Australian Bills of Rights Protect Property Rights’ (2006) 31 Alternative Law Journal 19.)
  3. [133]
    Were the exemption sought in this Application granted, it would operate to prevent a person under 50 from owning a home in this manufactured home park, and thus limit their protected right to own property referred to in s 24(1), and limited on a basis which the AD Act has regarded as unlawful discrimination.
  4. [134]
    The QHRC’s submissions about the scope of the protection offered in s 24 of the HR Act are not comprehensive, and are, perhaps to some degree, tenuous. The submission does not address in a clear way whether the scope of the s 24 right to own property is one which operates to protect any person who wants to acquire any property from doing so if they can afford it.
  5. [135]
    There is certainly a considerable body of writing about the scope of such property rights and the scope of the protections offered. Potential purchasers of homes in the Park who are under 50 are not of course prevented from purchasing homes in other parks. There is however clear incompatibility between the prohibition on aged-based discrimination, which would include age-based discrimination in the property market, the broad right in s 24(1) of the HR Act and this Applicant’s proposal. I am not satisfied that the proposed age limitation is not a legitimate or proportionate limitation on the right to own property.
  6. [136]
    The question which then arises is whether the language of s 24 HR Act extends to circumstances where the owner of property is prevented from exercising their property rights by selling to a person of their own choosing. Property lawyers are well familiar with statutory and contractual limits being imposed on property owners or those holding interests as a tenant which restrict to whom they can dispose of their interests.
  7. [137]
    ‘Property’ is defined in the Acts Interpretation Act 1954 as ‘any legal or equitable interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action’. I accept that each of the homes in the Park is the “property” of each owner, and their respective interests in their home include the ownership use, enjoyment, and right to disposal of the property, including to be entitled to the sale price of that asset once disposed of.
  8. [138]
    The notion that a person must not be arbitrarily deprived of the person’s property is not in my view limited to the taking of a person’s title to their property. It includes preventing a person from exercising their property rights in a way that is ‘practical and effective. In this case I am focussed on the rights of existing residents to sell their property to whomever they choose.
  9. [139]
    In PJB v Melbourne Health (Patrick’s Case) [2011] 39 VR 373; [2011] VSC 327 at [89], Bell J in the Victorian Supreme Court considered the terms ‘property’ and ‘deprivation’ should be ‘interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense’. It was held that there is a significant body of authority in the courts in the United Kingdom and Europe on this right and that “jurisprudence assists in relation to what amounts to a deprivation of property in human rights legislation such as the Charter. It is well-established that a formal expropriation is not required (although it does suffice) and a de facto expropriation is sufficient.
  10. [140]
    Citing earlier authorities, in Zwierzynski v Poland, the European Court of Human Rights gave this statement of principle:

The Court recalls that in order to establish whether or not there has been a deprivation of possessions it is necessary not only to consider whether there has been a formal taking or expropriation of property, but also to look beyond appearances and investigate the realities of the situation complained of.  Since the Convention is intended to guarantee rights that are ‘practical and effective’, it has to be ascertained whether that situation amounted to a de facto expropriation. I will apply this approach in determining whether there has been a deprivation of property within s 20 of the Charter in the present case.

  1. [141]
    In the text, the Annotated Victorian Charter of Rights (2nd Ed), published by LBC,  the authors refer, at pages 183 and 184, to identifying the scope of the right of in section 20 of the Victorian Charter of Rights, which refers to persons not being deprived of property other than in accordance with the law. After referring to the decision in PJB which I discuss above, the authors state that the relevant deprivation may include “a substantial restriction on the enjoyment of exclusive possession or a person’s ability to dispose of, destroy, or transfer the property or the capacity to derive profits from it.”
  2. [142]
    The authors suggest that it may not include a mere diminution in the value of real property and reference the decision of Lough v First Secretary of State [2004] 1WLR 2557.
  3. [143]
    One can see an example of this applied in recent practice In the Qld Attorney General’s issuance of a Human Rights Certificate in relation to the Public Trustee (Interest Rate) Amendment Regulation (No. 2) 2020, it was said:

“The ability to own and protect property historically underpins many of the structures essential to maintaining a free and democratic society based on human dignity, equality and freedom. The right includes the protection from the deprivation of property. Deprivation in this sense has been held to include the substantial restriction on a person’s use or enjoyment of their property. Property is likely to include all real and personal property interests recognised under general law (for example, interests in land, contractual rights and shares) and may include some statutory rights (especially if the right includes traditional aspects of property rights, such as to use, transfer, dispose and exclude). The right does not provide a right to compensation. Money held in the common fund is held by the Public Trustee as a trustee. Property includes all real and personal property interests recognised under the general law and could include a person’s interest in trust funds held by the Public Trustee. Deprivation of property will not be limited to situations of forced transfer or extinguishment of title or ownership but will include any “de facto expropriation” by means of a substantial restriction in fact on a person's use or enjoyment of their property. This may include a substantial restriction on a person’s ability to derive profits from their property. The effect of the Regulation is to set the amount of the profit that a person beneficially interested in the money in the common fund can derive from their property. The Regulation does not arbitrarily deprive a person of their property because the interest rate that is set reflects the market rate of return of a comparative set of competitive financial products and prevailing economic conditions” (my emphasis).

  1. [144]
    I accept that the property rights identified in s 24 of the HR Act include the right to own property and not be exposed to substantial restrictions on a person’s ability to derive profits from their property. Having said that, I turn now to the question of how s 24 of the HR Act affects the interests of existing owners of homes in this Park or Village.
  2. [145]
    The Commissioner argues that an exemption would operate to restrict the rights of owners of homes in a manufactured home park from selling the home to persons of a certain age, the right in s 24(2) not be arbitrarily deprived of the person’s property is thus limited. This is because their right to dispose of their property is limited, indeed as we shall see, even potentially limited in a way which significantly limits the return that the person might achieve for the property.
  3. [146]
    The QHRC has put forward no authority which supports the proposition that restricting rights of owners of property from selling to persons of a certain age contravenes a right to not be arbitrarily deprived of the person’s property. Indeed, the language of arbitrary deprivation or expropriation is not easily seen to be applicable to this situation which restricts the categories of persons to whom property can be sold. It is hardly an appropriation or an arbitrary deprivation, however taking a broad view of the expression, “arbitrarily deprived”, it may be capable of applying to a situation where one is forced to sell property into a market which is arbitrarily reduced by reason of the grant of an exemption.
  4. [147]
    I have mentioned several times already that the Applicant has sought to justify the grant of the exemption being for the purpose of preventing an increase in market value of the homes within the Park to align with market value in the area. The Applicant does not address the question of whether that amounts to some kind of arbitrary deprivation, although as I point out shortly, the exemption would limit the residents’ ability to freely dispose of their homes to persons below 50. The Applicant contends that that is a legitimate and proportionate limitation on the relevant human right. That seems to involve a concession that the relevant right is brought into play.
  5. [148]
    The QHRC submits that limiting the ability of homeowners to dispose of their homes is not proportionate to the objective of providing affordable housing in a community environment for older people. I agree with that contention.
  6. [149]
    The exemption, if granted, would limit the property rights of people, preventing some from owning a home in the park, and the property rights of people who have homes in the Park. I am not persuaded that these limitations are reasonable and demonstrably justified, in accordance with s 13 of the HR Act.
  7. [150]
    In that regard, I note the policy or social objective that is said to justify this exemption is to ensure that these facilities remain affordable, and that their market value is in some way or another artificially restricted or limited because of the limited market to which they can be sold. This, I consider, brings into sharp focus precisely how the granting of this exemption would be inconsistent with the property rights in s 24 of the HR Act.
  8. [151]
    Insofar as s 24(2) is capable of having a meaning which includes the right to not be arbitrarily deprived of the true value or benefit of a person’s property, the granting of an exemption which would permit this operator to refuse to consent to an assignment of a property to a person who might be prepared to pay the proper market value for it on the basis that that person is of a different age or financial means, and therefore prevent the owner from obtaining the true value of the asset, does in my view, on balance,  infringe the property right.
  9. [152]
    In relation to the QHRC’s contentions on this issue, the submission made on behalf of the Applicant is that a human right can be limited in a reasonable way, as a “legitimate and proportionate limitation on the relevant human right whilst being consistent with a free and democratic society based on human dignity, equality and freedom”.
  10. [153]
    The submissions made on behalf of the Applicant are also that any deprivation in this sense is not taken to be 'arbitrary' as it is for a specific purpose identified above. Those same purposes apply to the nature of the limitation, that is to provide 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 they can stay at home, and to provide more affordable housing to persons aged over 50.
  11. [154]
    The submission is also made on behalf of the Applicant that that an exemption under the AD Act which would limit the residents' ability to freely dispose of their home to those aged below 50 is a legitimate and proportionate limitation on the relevant human right whilst being consistent with a free and democratic society based on human dignity, equality and freedom.
  12. [155]
    The submissions made on behalf of the Applicant do not explain how it so operates, nor address the fundamental question as to whether it is an appropriate exercise of the discretion vested in this Tribunal to grant exemptions which would artificially limit or restrict the value of assets that individual members of the community own, and do so in a way which was manifest and intentional.
  13. [156]
    It might well be in the interests of incoming residents to the park to be given the opportunity to pay less than what is the real market value for an asset, but in my view, the submission falls well short of providing a basis for the grant of an exemption to artificially limit the property values of resident owners.
  14. [157]
    I am not satisfied that an exemption which would limit present residents’ ability to freely dispose of their homes at a market value which is not artificially diminished is a legitimate and proportionate limitation on the conceded human right which it affects.
  15. [158]
    For the reasons I have set out above, I refuse the application.
Close

Editorial Notes

  • Published Case Name:

    Burleigh Town Village Pty Ltd (3)

  • Shortened Case Name:

    Burleigh Town Village Pty Ltd (3)

  • MNC:

    [2022] QCAT 285

  • Court:

    QCAT

  • Judge(s):

    Member Roney QC

  • Date:

    27 Jul 2022

Appeal Status

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