Etheridge Shire Council[2023] QCAT 263

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application filed 9 January 2023 by Etheridge Shire Council which seeks an exemption from the operation of the following provisions of the Anti-Discrimination Act 1991 (“the AD Act”):

   1. (a)
      Section 46 – in the goods and services area;
   2. (b)
      Sections 77 – in the disposition of land area; and
   3. (c)
      Sections 82 and 83 – in the accommodation area;
   4. (d)
      Section 84 – in refusing to allow reasonable alterations.
2. [2]
   No exemption is formally sought from the operation of Section 7(f) – discrimination on the basis of age, however in my view, if the exemptions which are sought are seen to be appropriate, an exemption should also be given from the operation of Section 7(f).
3. [3]
   The application is for a 5-year exemption to allow the Applicant to provide accommodation, goods and services, and permit disposition of land, in homes that are to be established on land owned by the applicant at the remote Queensland town of Georgetown and leased to eligible residents as an “Independent Living Facility” for persons “over the age of 65”. The material is ambiguous as to whether this actually means people aged 65 and over, which I suspect is what is really meant. Otherwise, it would apply only to those 66 and older.
4. [4]
   The applicant proposes to restrict accommodation to people aged over 65 years, who are able to live relatively independently, and who are existing residents of the Etheridge Shire local government area. Occupants would be restricted to Eligible Residents and one other person who is either a principal carer, dependent, or spouse who does not otherwise qualify as an Eligible Resident. Residents would be required to relocate where their care needs become greater than a certain level.
5. [5]
   The proposed restrictions relating to age and care needs would arguably constitute unlawful discrimination in contravention of the AD Act and would potentially limit human rights under the Human Rights Act 2019 (Qld) (the HR Act).
6. [6]
   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.
7. [7]
   The material discloses that Etheridge Shire covers approximately 39,039 square kilometres of Queensland's Gulf Savannah Region. The Shire is connected by four main communities being: Mt Surprise, Einasleigh, Forsayth and Georgetown and two smaller communities: Kidston and Oak Park. Georgetown is where it is intended to build this independent living facility if authority is given.
8. [8]
   The area is governed by this Shire council a relatively diverse. The nearest aged care residential facilities which might be available as alternatives are far away. For example, at Ravenshoe which has a population of only 786 people and is almost 3 hours drive by car from Georgetown. Herberton has a population just short of 1000 and is some 3 and a 1/2 hours’ drive from Georgetown. There is independent aged living provided Mareeba which is 4 hours’ Georgetown.
9. [9]
   The critical purpose of the provision of this facility is to reduce the likelihood of persons who live within the Shire needing to relocate from it.
10. [10]
    The need for the critical features which this facility would provide to eligible residents arises because there are limited health care services available in the Shire, and those which do exist are a very long way away or can only be or can only be facilitated by the Royal Flying Doctor Service which operates a weekly service to the Shire. There are no private medical practices or health professionals operating in the Shire. Hence the decision has been made not to provide it for the benefit of persons who have high needs or high medical care requirements. The concept is that this facility would fill an existing gap fill an existing gap in the provision of aged care services to Shire residents who have relatively low needs.
11. [11]
    The formal arrangements would involve leasing these premises to individual residents who would be subject to qualifications would be subject to a transparent selection process.
12. [12]
    At the heart of the exemption application then, is an exemption which would permit the Applicant to to lease residential premises to persons in the Shire on a basis which discriminated against persons who were younger than 65 years of age for the particular purposes which have been identified above.
13. [13]
    No question of the disposal of a property interest arises except to the conceptual extent to which residents might be permitted to assign leases. The question of whether assignments would be allowed is not specifically dealt with in the application. Neither party addressed the question of whether assignments of leases regulated by the Residential Tenancies legislation is permissible. The QHRC made submissions that assumed such leases were assignable.
14. [14]
    The project overall has been developed by a local advisory committee which includes councillors community members and volunteers with a local aged with a local aged care group.
15. [15]
    The material does not deal with the issue of whether there is any shortage of available leasing councillors’ spaces units or there's units or houses in the relevant shire. It may be that there is in fact a difficulty in obtaining leasing space within the shire however this is but this is a one-off project which will only be built which will only be built for those specific purposes identified and if those purposes are not permitted by the ground permitted by the Grant for an exemption the facility will not be built and the community will be worse off. In other words, If the exemption is not grounded the facility will not be built but he will not be built and these housing assets housing assets will not ever come into existence. In that sense the ground of the exemption does not disadvantage individual does not disadvantage individuals who are residents of the shire residents of the Shire who might otherwise be able to take up be able to take up housing assets owned by the council thing assets owned by the council and which because of this exemption they are unable to do.
16. [16]
    The Shire mayor, Mr Barry Gilbert Hughes swears that Council has identified a need that it believes exists in Georgetown for accommodation for elderly persons. The Independent Living Facility project was motivated by Council’s desire to address that need. The material discloses that in 2021, the Shire has identified that will be faced with many changes and challenges over the next 5-10 years to maintain social, environmental and financial sustainability. It is of concern that the Shire population is diminishing and growing older and that the Shire youth are not returning after leaving for their education.
17. [17]
    Mayor Hughes swears that Council can only address that need in a way that is consistent with its limited financial and human resources. The Council’s proposal is to lease the individual units of the Independent Living Facility to Eligible Residents. Council will not be providing any particular care or services to residents of the Independent Living Facility. It will be the responsibility of the individual resident to access the care or services required by residents.
18. [18]
    However, each unit of the Independent Living Facility will be specifically designed to cater to the needs of elderly persons. For example, the units will primarily be two-bedroom units, with wider doorframes and railings. He says he is not aware that any other housing stock that has been specifically designed in this way exists in Georgetown.
19. [19]
    The Council is not intending to generate any profit as part of the Independent Living Facility and expects its construction and operation will need to be augmented by State and Federal Government funding. Council, including via its Advisory Committee for Aged and Disability Care, considered the possibility of establishing the Independent Living Facility under the Retirement Villages Act 1999 (Qld).
20. [20]
    Mayor Hughes swears that this possibility was discounted because of the significant resources required to deliver a retirement village model, in circumstances where that would not necessarily assist Council to achieve its objective of delivering affordable and age-appropriate housing to elderly people, to enable them to remain in the Etheridge Shire into their later years.
21. [21]
    He swears that Council expected that it would need to apply a substantial amount of human resources to delivering the retirement village model, and spend money on training and other activities; expenditure that that would not be necessary as part of this simpler model that is the subject of this Application. The Independent Living Facility is intended to be developed on a much smaller scale than most retirement villages, and so there is no ability to develop "economies of scale” for some of the resources identified above;
22. [22]
    He swears that Council expected that the operation of a retirement village under the Retirement Villages Act 1999 (Qld) would require Council to consider the delivery of some level of geriatric care in order to meet residents' expectations about care levels at retirement villages. Council is not able to deliver that sort of care.
23. [23]
    He swears that if this Application is unsuccessful, then I believe that Council will decide not proceed with a retirement village model under the Retirement Villages Act 1999 (Qld), for the reasons he explained above. He believes this will put the entire feasibility of the project at risk. Having regard to this identified capacity and resources, Council discounted the possibility of applying the Retirement Villages Act 1999 (Qld) and is seeking to obtain this exemption so it can lawfully deliver the service that it has identified the community needs and Council can feasibly deliver.
24. [24]
    The exemption is sought for a period of five years. The maximum period for any such exemption is five years and no more.
25. [25]
    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.
26. [26]
    The applicant submits that the following proposals necessitate an exemption from certain provisions of the AD Act as follows:

1. (a)
   The houses will be available to be occupied by eligible residents pursuant to a lease. Eligibility criteria includes age and level of ability to live independently. (Discrimination in the disposition of land – section 77)

2. (b)
   People who are not eligible to live in the homes will not be able to access the Independent Living Facility. (Discrimination in the supply of goods and services, disposition of land, pre-accommodation, and refusing to allow alterations – sections 46, 77, 82, 83, and 84 respectively)

3. (c)
   Under the lease, a resident will be required to relocate if their care needs exceed a certain level. (Discrimination by refusing to allow reasonable alterations – section 84)

27. [27]
    The applicant identifies discrimination on the basis of age and impairment in respect of the eligibility criteria.
28. [28]
    An exemption is also sought by “prospective eligible residents for the Independent Living Facility”. No basis is advanced for why such a broadly described exemption should be given, to persons unidentified, and I do not propose to grant such an exemption
29. [29]
    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.
30. [30]
    Under the AD Act, s 7(f), 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 Facility 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

31. [31]
    The tribunal can grant an exemption from specific provisions of the AD Act in accordance with section 113 of the AD Act.
32. [32]
    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. I adopted and applied those in the post Human Rights Act context in my decision in Burleigh Town Village (3) [2022] QCAT 285 (Burleigh Town Village).
33. [33]
    The granting of an exemption is discretionary. There are no express criteria for the exercise of the discretion.
34. [34]
    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.
35. [35]
    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.
36. [36]
    As I mention later, another acknowledged issue is what the effect of not granting it would be.
37. [37]
    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.
38. [38]
    The application is opposed by the QHRC and it has set out in lengthy submissions to the Tribunal dated 13 February 2023 the basis upon which the exemption application is opposed. Many of the matters raised seem to be generic in nature and do not pertain to this particular proposed exemption, but perhaps relevant to other sorts of exemptions based on age discrimination.
39. [39]
    In my reasons in Burleigh Town Village, I observed that these applications have historically if not invariably, been heard on the papers with no opportunity to challenge assertions 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.
40. [40]
    In my reasons in Burleigh Town Village, I also observed that it is not difficult to imagine a circumstance where the owner an aged accommodation 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 open to be challenged, for example by persons who may have their interests affected or be subjected to discrimination .Some discriminatory proposals 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 presented to the Tribunal.  No such issues arise here.
41. [41]
    In my reasons in Burleigh Town Village, I also observed that 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. 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 residential facility, for example those who are on welfare benefits, might provide ease of administration and confidence that rental payments would be paid regularly and on time.
42. [42]
    As I also said in my reasons in Burleigh Town Village, 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. The Tribunal should be satisfied that there are not unforeseen or unintended consequences in granting such exemptions. The interests of unheard from parties need to be considered where possible. That makes the task a difficult one.

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

43. [43]
    I do not consider that the Applicant for an exemption 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. 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
44. [44]
    The QHR 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 persons over 65.
45. [45]
    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.
46. [46]
    I accept that the Applicant here is not seeking to obtain de facto retirement village status without commensurate responsibilities. I am not satisfied that there is a non-discriminatory way of providing relatively low-cost residential accommodation for persons over the age of 65 in this Shire, except by granting this exemption.
47. [47]
    The Commissioner's concerns include that the purpose of the Facility could be achieved through targeted marketing and the provision of services desirable to the demographic. As to that, the Applicant submits that the availability of the facility ought to be restricted to those persons who it is intended to benefit. Targeting marketing or mere supply of appropriate services could result in the available units being exhausted and the purpose being entirely frustrated, with no means or resources available to augment that supply. In my view targeted marketing may be a reasonable means by which the purpose could be achieved. In this case. I accept that targeted marketing and the provision of services desirable to the demographic may not achieve the outcome sought.
48. [48]
    The Commissioner's concerns include that the housing and services could be provided through a scheme registered as a retirement village under the RV Act.
49. [49]
    As to that the Applicant submits that such a submission may have had some force if the only purpose of the proposed facility was to provide affordable housing to seniors, particularly if it were proposed to do so in a metropolitan area and for profit. It submits that the circumstances of the proposed facility are quite different. The facility is being proposed to address a specific need for a remote area of Queensland, and to enable elderly residents to remain within that area so long as their health permits (having regard to the local healthcare offerings). It is being offered by the local Council, on a not-for-profit basis, solely for the purpose of facilitating this purpose (being a purpose consistent with its Corporate Plan).
50. [50]
    The evidence is that because of the resources required and the scale of the proposed development the Council cannot, establish a retirement village scheme under the RV Act. The proposed development is only on a small scale, and considerably simpler than that contemplated by the RV Act.
51. [51]
    The Commissioner's concerns include general concerns about exemptions that allow age restrictions in accommodation. As to that, those concerns are legitimate, but not of much significance in this case involving a remote community with specific needs. I accept that the purpose of the Facility is not to alleviate a housing affordability issue or to improve housing stock in the Etheridge Shire, but to improve a specific area of service delivery for a vulnerable section of the community in a remote part of Queensland. It is designed to enable elderly persons to remain in their community - and proximate to existing family, friends and support networks – when their age prevents them from living in more traditional homes, which younger people could safely occupy.
52. [52]
    The Commissioner also identifies concerns regarding the creation of "segmented" or "segregated" communities. I do not consider those issues to be of relevance here.
53. [53]
    The Commissioner's concerns include that Application is premature and in making this submission, the Commissioner relies upon and refers to the case in Sea change Retirement Village Management Pty Ltd [2022] QCAT 246. In that case, a unit complex which was - at the relevant time - registered under the RV Act as a registered retirement village scheme. In that case, there was insufficient evidence that the steps necessary to deregister the scheme had been taken and so the applicant failed to prove that the application was necessary. Here, the evidence reveals that the Applicant has committed – by resolution – to commit to the construction of the Facility. The development of the Facility is well advanced, including the obtaining of architecturally designed concept plans. I do not consider that the Application is premature.

Application of Human Rights Act

54. [54]
    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.
55. [55]
    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.
56. [56]
    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 —

1. (a)
   does not limit a human right; or

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

57. [57]
    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.
58. [58]
    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; Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 at [310].
59. [59]
    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.
60. [60]
    The Commissioner submits that the standard of consideration required will differ depending on the circumstances, including the identity of the decision-maker, and the obligation extends to consideration of how the decision will operate in practice and whether any guidelines designed to ameliorate the effect of a decision are capable of operating effectively. The Commissioner submits that this aspect of identity of the decision-maker was affirmed in Owen-D’Arcy where the Court said: “The identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner. Decisionmakers like [the Corrective Services officer] are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge”.
61. [61]
    The Commissioner submits that this suggests that the standard to be adopted by the tribunal should be higher than that expected of other public entities such as officers of government departments or agencies. That is not a matter that I need to decide for the purposes of this application. In Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, upon which the Commissioner relies, the Court approved of the following statement, with which I respectfully agree:

"Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, the proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made...

62. [62]
    It is not disputed that the Tribunal should have regard and proper consideration to human rights and make a decision compatible with those rights.
63. [63]
    The Commissioner submits that the relevant exemption is not a proportionate limitation on the right to equality and protection against discrimination.
64. [64]
    The QHRC’s stated concerns about exemptions that allow age restrictions in accommodation are stated to include the following, many of which have no specific application to the situation I am considering in this case:

    1. (a)
       Tribunal exemptions are temporary and not suited to permanent arrangements such as accommodation;
    2. (b)
       Housing affordability is a national concern for all, irrespective of age;
    3. (c)
       Segmenting housing by age is not consistent with an inclusive age-friendly community;
    4. (d)
       All age groups benefit from intergenerational engagement, whereas working and socialising in age-segregated worlds does not promote a healthy society;
    5. (e)
       Negative stereotypes about children and younger people are not a proper basis for granting an exemption;
    6. (f)
       Queensland has an existing legislative framework that allows discrimination on the basis of age, under the Retirement Villages Act 1999;
    7. (g)
       Residential complexes with age restrictions do not necessarily cater for age-related disabilities;
    8. (h)
       Where accommodation and facilities are accessible, younger people should also be able to benefit;
    9. (i)
       The ages of 50 and 55 are not old, particularly considering that eligibility for the age pension is currently 67 years;
    10. (j)
        Affordable and accessible accommodation for seniors can be achieved through non-discriminatory means.
65. [65]
    I accept that housing rental is regulated by the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRA Act), the main objects of which are to state the rights and liabilities of the parties to tenancy and rooming accommodation arrangements. Division 2 and 3 of the Act set out what Residential tenancy agreements the Act applies to and does not apply to. Neither the Applicant nor the QHRC addressed the issue, but it seems that there is nothing in that Act which prevents assignments of such leases to other persons. Section 121 of the Property Law Act 1974 (Qld) in circumstances where the lease expressly forbids the tenant from “assigning, underletting, charging or parting with possession of premises”, without first obtaining the landlord’s consent. In such circumstances, section 121 provides that the landlord’s consent must not be “unreasonably withheld”, notwithstanding any contrary provision in the lease. Section 121 applies to “all leases, whether made before or after the commencement” of the Property Law Act (which commenced in Queensland, in 1974). Therefore, the section will apply to leases generally, regardless of whether the leased premises falls within the category of a Residential tenancy agreements. However, to attract the operation of the section, the lease must contain “a covenant, condition or agreement against assigning, underletting, charging or parting with possession of the premises…without licence or consent.”
66. [66]
    I also accept that the operation of residential parks is regulated by the Manufacture Homes (Residential Parks) Act 2003 (the MHRP Act) and that the objects of the MHRP Act include protecting homeowners from unfair business practices and providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.
67. [67]
    I also accept that the operation of retirement villages is regulated by the Retirement Villages Act 1999 (Qld) (the RV Act) and that the objects of the RV Act include promoting consumer protection and fair trading and encourage the continued growth and viability of the retirement village industry in the State. The RV Act contains an express provision exempting the operation of the AD Act so that it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons. 18 The MHRP Act does not contain a like exemption from the operation of the AD Act.
68. [68]
    The Commissioner submits that;

    1. (a)
       housing legislation has been reviewed and amendment from time to time.
    2. (b)
       The RTRA Act was amended in 2021 as part of stage 1 of Queensland’s rental law reform aimed to achieve greater fairness and better balance of rights.
    3. (c)
       The MHRP Act was reviewed in 2008 and again between 2013 to 2017 and was amended in 2010 and 2021.
    4. (d)
       The RV Act has been reviewed and a range of amendments made to improve consumer protections.
    5. (e)
       Notwithstanding reviews, reports, and consequential amendments, the parliament has not sought to amend the MHHRP Act to provide an exemption from the AD Act to allow age restrictions in manufactured home parks, nor to allow age restrictions in other forms of housing.
    6. (f)
       In its report on the inquiry into the Housing Legislation Amendment Bill 2021, the Community Support and Services Committee reported that the Commission recommended the government review age restrictions in housing and extending the exemption in the RV Act to other forms of housing and the department advised that careful consideration of the costs and benefits of allowing age restrictions (to restrict entry to older people) in other forms of housing would be required.
    7. (g)
       The Commission considers that these factors indicate a legislative intent that age restrictions in residential housing are intended to apply only to schemes registered under the RV Act.
69. [69]
    In fact, on the issue of whether the department advised that careful consideration would need to be given to the costs and benefits of allowing age restrictions, as the Applicant points out, the comments referred to by the Commissioner in the Committee's Report were concerned with a submission by the Commissioner that the temporary exemptions scheme is not suitable for long term accommodation. The Committee recorded the Commissioner's submission in these terms:

"The Queensland Human Rights Commission recommended that the government review age restrictions in housing and form a policy position about extending the exemption in the Retirement Villages Act 1999 to other forms of residential housing. And if age discrimination in residential community housing is supported by the government, then appropriate amendments should be made to relevant legislation to provide clarity for the community and relieve the burdens associated with using the tribunal exemption process."

70. [70]
    The Committee did not expressly or implicitly accept that submission, nor was any comment made to the effect now contended by the Commissioner. The Committee noted the department's response which included:

"the existence of resident-operated retirement villages and other accommodation targeted to senior... indicates the preference of some seniors to live in seniors-only congregate accommodation, but not necessarily a retirement village. This also provides some indication of the 'value' attributed to the exemption in the RVAct from the Anti-Discrimination Act 1991 prohibition on discrimination based on age. The department also advised that careful consideration of the costs and benefits of allowing age restrictions (to restrict entry to older people) in other forms of housing would be required. Considerations include the impact of any change on the existing cohort of retirement village residents and the investment they have made in buying into a retirement village."

71. [71]
    These comments were made in circumstances where the matter raised by the QHRC were not the subject of the Bill being considered by the Committee in that context.
72. [72]
    I do not consider that these factors indicate a legislative intent that age restrictions in residential housing are intended to apply only to schemes registered under the RV Act, if that is to suggest that the discretion to grant exemption from specific provisions of the AD Act in accordance with section 113 of the AD Act cannot or ought not be applied to grant exclusions of the kind sought here.

The right to equality

73. [73]
    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.
74. [74]
    Section 15 of the HR Act provides:

15 Recognition 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.

75. [75]
    The purpose of s 15(5) is to promote substantive equality. 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.
76. [76]
    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).

The application of the justification test

77. [77]
    The justification test in s 13 of the HR Act is to be applied. 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.
78. [78]
    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.
79. [79]
    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”.

80. [80]
    I accept that every individual in Queensland not 65 or older 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.
81. [81]
    Placing an age restriction of 65 years and excluding those of any age below that threshold from occupation of a residential complex is, in my view, proportionate to the purpose of providing affordable accommodation suitable for elderly residents of the Shire. The limitation and the means sought to be imposed, albeit only in development, is proportionate and appropriate for achieving that purpose.
82. [82]
    I accept that affordable accommodation should be available to all individuals in Queensland. Be that as it may, I consider that in this case 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.

Property rights and section 24 of the HR Act

83. [83]
    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 s 24 of the Qld HR Act that:

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

84. [84]
    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 Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328; 33 VR 139 [63]-[64] concerning the right to privacy. Whilst that decision was overturned on appeal, this reasoning was not the subject of the appeal. 
85. [85]
    Were the exemption sought in this Application granted, it would operate to prevent a person under 65 from leasing a unit in this Facility 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.
86. [86]
    The question which then arises is whether the language of s 24 HR Act extends to circumstances where the lessee of property is prevented from exercising their property rights by assigning the lease 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.
87. [87]
    ‘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 tenancies in the facility would likely be “property” of each owner, and their respective interests in their home include the use, enjoyment, and right to assign the lease.
88. [88]
    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 potential residents to assign their leases to whomever they choose.
89. [89]
    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.
90. [90]
    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.”

91. [91]
    I accept that the property rights identified in s 24 of the HR Act include the right to lease property and not be exposed to substantial restrictions on a person’s ability to assign their leases.
92. [92]
    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 lease to a person on the basis that that person is of a different age, probably infringes the property right.
93. [93]
    I am satisfied that an exemption which would limit present residents’ ability to freely assign their units is a legitimate and proportionate limitation on the conceded human right which it affects.
94. [94]
    I am therefore persuaded that the material plainly demonstrates that the exemption sought is a legitimate and proportional limitation upon those rights. 
95. [95]
    In this regard:

    1. (a)
       the limitation is a minor one in that it restricts access to a very small number of properties in a remote part of Queensland;
    2. (b)
       it is proportional including because:

1. (i)
   it provides considerable value to the vulnerable persons whom it seeks to benefit, namely elderly persons who will be able to reside in the Etheridge Shire Council and remain proximate to their existing family, social and support networks;

2. (ii)
   it provides real value to the Etheridge Shire community by facilitating continued intergenerational engagement, by the continued presence of aged and elderly persons in the community; and

3. (iii)
   it restricts or limits those human rights no more than is necessary for the achievement of its purpose.

96. [96]
    I therefore make the following orders:

    1. Etheridge Shire Council is, for the purpose of establishing and operating the independent living facility referred to in the material before the Tribunal, granted an exemption for a period of 5 years from the date of this order, from the operation of the following provisions of the Anti-Discrimination Act 1991 (“the AD Act”):
97. (b)
    Section 46 – in the goods and services area;

    3. Sections 77 – in the disposition of land area; and
    4. Sections 82 and 83 – in the accommodation area;
    5. Section 84 – in refusing to allow reasonable alterations.
    6. Section 7(f) – discrimination on the basis of age.