Re Turnaround Management Association Australia Limited (ACN 107 241 798)
[2024] QCAT 153
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Re Turnaround Management Association Australia Limited (ACN 107 241 798)[2024] QCAT 153
- Add to List
Re Turnaround Management Association Australia Limited (ACN 107 241 798)[2024] QCAT 153
Re Turnaround Management Association Australia Limited (ACN 107 241 798)[2024] QCAT 153
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Re Turnaround Management Association Australia Limited (ACN 107 241 798) [2024] QCAT 153 |
PARTIES: | TURNAROUND MANAGEMENT ASSOCIATION AUSTRALIA LIMITED (ACN 107 241 798) (applicant) |
APPLICATION NO/S: | ADL072-23 |
MATTER TYPE: | Anti-Discrimination matters |
DELIVERED ON: | 9 April 2024 |
HEARING DATE: | 4 April 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney KC |
ORDERS: | THE APPLICATION FOR AN EXEMPTION IS GRANTED. I grant the Applicant an exemption for a period of 5 years under section 113 of the AD Act from the application of sections 7, 46 contained at Chapter 2, Part 4 of the Act and section 127 contained at Chapter 5, Part 3 of the Act, in connection with:
|
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – SPECIAL MEASURES – where the Applicant seeks an exemption from the operation of sex discrimination provisions of the Anti-Discrimination Act 1991 (Qld) – whether grounds for exemption – whether they are special measures – where the Queensland Human Rights Commissioner does not opposes the application – whether the exemption should be granted – where the Applicant is an industry body, representing people working in the restructuring and turnaround field in Australia, and hosts events, makes submissions on law and policy in relation to restructuring and turnaround, and provides an education program – Where the Applicant seeks an exemption to enable it to provide a program and sponsorship as a networking program for women as well as a scholarship and awareness program for women to the exclusion of non-women – where an exemption granted in another state to similar effect – Relevance of an exemption granted in another state t HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – the rights to equality and to equal protection of the law without and from sex discrimination – 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(a), s 105, s 113 Human Rights Act 2019 (Qld), s 15, s 58(1)(a), s 58(1)(b) Burleigh Town Village (3) [2022] QCAT 285 Re Credit Suisse Management (Australia) Pty Limited [2012] QCAT 95 Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 River Glen Haven Over 50s Village [2021] QCAT 26 Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 Re: Ipswich City Council [2020] QIRC 194 Re: Mackay Regional Council [2022] QIRC 064 Palmpoint Pty Ltd [2006] QADT 112 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 |
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]This is an application by Turnaround Management Association Australia Limited (ACN 107 241 798) (‘TMA’). It seeks an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’) by application dated 18 September 2023 from the operation of the provisions of Section 7 of the AD Act which prohibits discrimination on the basis of sex.
- [2]The Applicant is an industry body that represents individuals working in the restructuring and turnaround field in Australia. According to the material in support of the application, the Applicant provides services of hosting events and an education program, and makes submissions on law and policy in relation to restructuring and turnaround which are options for businesses in financial distress. That education program, the Network of Women program, shall be referred to in these reasons as the NOW program and sponsorship.
- [3]The Applicant is a not-for-profit company limited by guarantee. It is an industry body, representing people working in the restructuring and turnaround field in Australia, mainly lawyers, accountants, lenders, advisers, regulators, academics and students. It hosts events (including a National Conference each year, generally alternating between Sydney and Melbourne), makes submissions on law and policy in relation to restructuring and turnaround, and provides an education program.
- [4]The Applicant seeks an exemption to enable it to provide the NOW program and sponsorship as a networking program for women as well as a scholarship and awareness program for women that will be sponsored by Houlihan Lokey.
- [5]The Applicant contends and I accept that the purpose of the NOW program and sponsorship is to foster female leadership in the turnaround community. The Applicant contends and I accept that the NOW program and sponsorship are intended to offer practical incentives to women entering restructuring and turnaround, to be connected and engaged in the industry, and to progress to leadership roles in the Applicant and the industry.
- [6]The Applicant has aligned with one of its national partners, Houlihan Lokey (Australia) Pty Limited, to assist with the funding of the Training, National Scholarships and International Scholarship. The funding arose out of a joint recognition between the Applicant and Houlihan Lokey of the lack of female representation within the turnaround and restructuring industry and the need to elevate and provide women within the industry with opportunities for professional growth and networking, with the intention being that such opportunity would translate to the retention and development of women in the industry.
- [7]The Applicant has filed material and two sets of submissions. In one of those the proposition is stated that the Applicant
is not convinced that a potential complainant (which could only be a male-identifying member of TMA) would have standing to make a complaint against (it) in respect of an alleged discriminatory act or acts to which the proposed exemption relates.
That proposition must be wrong, insofar as it fails to address any non-binary persons or non-male-identifying, nor non-female-identifying members. None of the submissions filed by any party specifically refers to this.
- [8]Excluding males or persons who are not female from services provided by the Applicant is prima facie unlawful sex discrimination under section 7(a) of the AD Act.
- [9]The exemption is sought for the maximum period of five years.
- [10]TMA seeks the exemption in relation to:
- the implementation by TMA in Australia of a NOW program, which initially holds regular events to listen to the concerns of TMA members who are emerging women in the restructuring and turnaround industry and to introduce them to leaders in the industry; and
- the implementation by TMA in Australia of a sponsorship by Houlihan Lokey of a scholarship and awareness program (‘Houlihan Lokey NOW Sponsorship’) over an initial 3-year period from 2023, including the following component parts:
- specific training targeted at emerging women who are TMA members to be held twice a year in each of Sydney and either Melbourne or Brisbane for around 3 hours followed by a networking event (‘Training’);
- the award each year of two scholarships to emerging women in restructuring and turnaround who are TMA members to attend the TMA's National Conference (including flights, accommodation, registration and attendance at social events) (‘National Scholarships’) annually for 3 years;
- the award each year of one scholarship for an emerging woman in restructuring and turnaround who is a TMA member to attend one of the two main TMA Global conferences held in the US, being their Annual Conference (generally held in around October) or their Distressed Investing Conference (generally held in February) (including flights, accommodation, registration and attendance at social events) (‘International Scholarship’) annually for 3 years; and
- ad hoc initiatives consistent with the objective of the Houlihan Lokey NOW Sponsorship (such as lobbying for law reform).
- [11]The Applicant contends that it is conscious of its obligations under the AD Act. It does not propose to offer permanent employment by way of offering the International and National Sponsorships. However, the International and National Scholarships provide the awardees with the opportunity to attend TMA's national conference and international conferences. As part of the Houlihan Lokey NOW Sponsorship, funds will also be given to pursue ad hoc initiatives consistent with the objectives of the Houlihan Lokey NOW Sponsorship. TMA notes however that these ad hoc initiatives may not directly benefit individuals to the exclusion of others.
The proper approach to section 113 applications and necessary caution
- [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. The QHRC filed detailed submissions on 28 November 2023.
- [13]The Tribunal can grant an exemption from specific provisions of the AD Act in accordance with section 113 of the AD Act.
- [14]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’).
- [15]The granting of an exemption is discretionary. There are no express criteria for the exercise of the discretion.
- [16]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.
- [17]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.
- [18]As I mention later, another acknowledged issue is what the effect of not granting it would be.
- [19]The Tribunal is acting in an administrative capacity when deciding an exemption application under section 113 of the AD Act. See Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164; Re: Ipswich City Council [2020] QIRC 194; and 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.
- [20]The application is not opposed by the QHRC and it has set out in lengthy submissions to the Tribunal, dated 28 November 2023 the basis upon which the exemption application is not opposed. Many of the matters raised seem to be generic in nature and do not pertain to this particular proposed exemption, but are perhaps relevant to other sorts of exemptions based on sex discrimination.
Other exemptions
- [21]The NSW Anti-Discrimination Board last year granted this Applicant a 5-year exemption,[1] although it was not considered in circumstances in which the HR Act was operable because it was in NSW where no such Act exists. On 5 December 2023, the NSW Anti-Discrimination Board granted this Applicant an exemption in respect of an exemption application made by it under the Anti-Discrimination Act 1977 (NSW) which was substantially the same as the Exemption Application currently before QCAT. Reasons for the grant of the exemption are not available although it is apparent that the exemption was to advertise, offer and facilitate the following for women only, who are members of TMA:
- Educational, career, leadership and networking programs and initiatives.
- 2 training programs per year.
- 2 scholarships to attend the TMA Australian National Conference (national scholarships) per year.
- 1 scholarship to attend a TMA Global Conference in the United States (international scholarship) per year.
- [22]The Applicant has separate state committees in each of New South Wales, Victoria, Queensland and Western Australia, as well as "NextGen" committees (for under 35s) in each of those states. It would be an undesirable outcome were that program to be open to the women of NSW but not those of Qld, all else being equal.
The present application, the grounds relied upon and the “necessity for an exemption”
- [23]The Applicant must satisfy the Tribunal that the conduct would arguably contravene the AD Act without the exemption, and that there is no other reasonable means of achieving the purpose for which the exemption is sought.
- [24]Excluding males or perhaps even non-gender-specific individuals, or anyone who is not “female” from services provided by the Applicant, is potentially unlawful sex discrimination under the AD Act relating to the personal attribute of sex in the provision of goods and services area under the AD Act.
- [25]The application refers to under-representation of women in the insolvency/ restructuring industry and submits that requirements to qualify for registration as a liquidator are onerous and disadvantage women. The Commission submits that that exemptions in the AD Act are relevant to determining whether a Tribunal exemption is appropriate and reasonable, especially as to consistency with the purposes and objectives of the AD Act.
- [26]In an application to provide a scholarship for female university students, a member of this Tribunal refused to grant an exemption under section 113 of the AD Act on the basis that the exemption in section 105 was reasonably open - see Re Credit Suisse Management (Australia) Pty Limited [2012] QCAT 95. In that case Member Clifford held as follows;
[37] Credit Suisse in its application seeks an exemption pursuant to section 105 of the Act, and although perhaps made in error, clearly envisaged that that provision was the most appropriate exemption to which the proposed Scholarship may apply.
[38] Credit Suisse has referred to and provided reports concerning the particularly low participation rate of women in leadership and other senior positions in the ASX 200 companies and the financial services industry notwithstanding the higher representation of women in middle management and the front-line service.
[39] Credit Suisse has also provided statistics in relation to the underrepresentation of female applicants for its summer internship and graduate program.
[40] The Tribunal accepts the reports as demonstrating the underrepresentation of women in these areas and is of the view that these reports could go some way in assisting Credit Suisse in satisfying the provision of section 105. The Tribunal notes, apart from noting the historically low uptake rates by female graduates in the investment banking area of the financial services workforce, Credit Suisse has not specifically outlined the cause of this disparity, or provided specific evidence that the disparity arises from unfair discrimination and Credit Suisse may need to give further consideration to these issues to make out an exemption under section 105.
[41] However it is not the Tribunal’s role in this application process to make a decision in relation to whether or not an exemption under section 105 applies to a particular set of circumstances or proposed action, but rather, does the Tribunal consider that the section 105 exemption is reasonably open to Credit Suisse to argue should a complaint arise.
[42] Whilst acknowledging there is no absolute certainty for Credit Suisse in relation to whether it could establish an exemption under section 105 the Tribunal is satisfied that this provision of the Act is reasonably open to it should a complaint arise.
[43] Credit Suisse already has statistical information and if it could provide information relating to the cause of the disparity between the numbers of men and women in the upper echelons of the financial services and how other scholarships may have been used to address unfair discrimination of both a historical and contemporary nature Credit Suisse may have a reasonable foundation on which to base a case.
[44] In all the circumstances the Tribunal is satisfied, given the availability of the exemption provided in section 105, that it is not necessary to grant an exemption under s 113.
- [27]However, the Commission contends that the Tribunal should not refuse to grant an exemption unless it is able to determine conclusively and make a finding that a particular exemption applies. The grant of a Tribunal exemption, in circumstances where an exemption in the AD Act may apply, will provide certainty for the Applicant and avoid the prospect of someone bringing a challenge to the administration of this policy on the basis that it discriminated against, for example, a male insolvency practitioner. There are contemporary examples of such challenges having been brought which are sometimes mischievous and brought for political purposes.
- [28]I am not satisfied that it is even a requirement to conclude that I should not refuse to grant an exemption unless it is able to determine conclusively and make a finding that a particular exemption applies. In certain circumstances it would aid in the administration of the Act for this Tribunal, acting as it does in an administrative capacity, to grant the exemption if it would be appropriate, even if not essential, and without having to decide one way or the other whether some exemption applies. These applications are typically heard on the papers and there will often be no directed submissions about when and how an exemption might apply.
- [29]This approach is consistent with that of Exemption application re: Palmpoint Pty Ltd [2006] QADT 12 in the Anti-Discrimination Tribunal where the following was said by Member R Venables:
Effectively, the provisions of section 113 of the Act allow for a preliminary determination upon which the Applicant can rely, to ensure that the carrying out of their business is not unlawful. It also allows for the effective monitoring of the matter by the Tribunal, as exemptions under the section are only applicable for a maximum period of five years. At the conclusion of the period for which the exemption is granted, the Applicant must reapply for an exemption if they wish to retain the benefit of assured compliance with the Act, insofar as their conduct remains within the parameters of exemption granted. Should circumstances change within that period, this will come to the attention of the Tribunal before any further exemption is granted.
In contrast, the provisions of section 104 remain in force indefinitely (until repealed or amended by parliament) and are open to the interpretation of parties concerned in circumstances as and when they arise. The section does not provide a reliable shield against a complaint, as doing acts in accordance with the section, that is, acts "to benefit the members of a group with an attribute" will almost always involve the doing of an act which treats persons without the attribute less favourably. Accordingly, it will almost always run the risk of giving rise to "an arguable case" of unlawful discrimination.
In my view, the purpose of section 113 is to allow people the protection and security of a shield against complaints in circumstances where their proposed actions do constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the objects of the Act. The section allows for a regular review of the exemption or, in the alternative, for such exemption to simply expire. For these reasons, it is desirable in my view to invoke the section in circumstances such as these.
- [30]This approach has been adopted in other applications for AD Act exemptions, for example, Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 [16] and [23] and Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164.
- [31]I prefer that approach and will grant the exemption.
- [32]The QHRC Submissions say under the heading 'Scope of the proposed exemption' on page 6, that TMA consider whether the Exemption Application should also extend to the legal identity of Houlihan Lokey, which is actually properly called Houlihan Lokey (Australia) Pty Limited. The QHRC appears to make this suggestion on the understanding that the Training, National Scholarships and International Scholarship (as defined in the Exemption Application), while offered by TMA, are funded by HL, as they are in fact.
- [33]The Applicant does not wish that to occur and Houlihan Lokey (Australia) Pty Limited is not a party to the application. It is not appropriate that I make an order concerning it in those circumstances.
The effect of not granting or the loss of an exemption
- [34]It is relevant to consider the effect of not granting the exemption.
- [35]Self-evidently, not granting it would mean it could still operate the NOW program in Queensland, but may run the risk of someone challenging its lawfulness in this State even though it can be lawfully offered in NSW and perhaps elsewhere.
- [36]For the reasons I have discussed above, it is not appropriate to refuse the exemption even if it might still operate the program without the exemption.
Application of Human Rights Act
- [37]It is clear that the Tribunal has obligations under the HR Act in interpreting statutory provisions and in decision-making to do so 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.
- [38]The substantive obligation under s 58(1)(a) of 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.
- [39]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 —
- does not limit a human right; or
- limits a human right only to the extent that is reasonable and demonstrably justified in accordance with section 13.
- [40]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.
- [41]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].
- [42]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.
- [43]It is not disputed that the Tribunal should have regard and proper consideration to human rights and make a decision compatible with those rights.
- [44]The Commissioner does not submit that the relevant exemption is not a proportionate limitation on the right to equality and protection against discrimination.
The right to equality
- [45]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.
- [46]Section 15 of the HR Act provides:
15Recognition and equality before the law
- Every person has the right to recognition as a person before the law.
- Every person has the right to enjoy the person’s human rights without discrimination.
- Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
- Every person has the right to equal and effective protection against discrimination.
- Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
- [47]The purpose of s 15(5) is to promote substantive equality.
- [48]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.
- [49]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.
- [50]The justification test in s 13 of the HR Act must then be applied.
- [51]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. It makes no submission addressing that issue.
- [52]The nature of the test was comprehensively described in Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 (‘Lifestyle Communities’) from [323] to [334]. At [326] the Tribunal said that to establish a limitation as 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.
- [53]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.
- [54]The Applicant contends and I accept that the requirement for liquidators to have 4,000 hours of relevant experience in the preceding five years has the effect of disadvantaging women who have caring responsibilities or who work part time. The Applicant has also provided statistics about the number of female liquidators and participants in its industry events.
- [55]I accept that the NOW program and sponsorship fall within the category of measures to ameliorate discrimination of women, and even if it is not, that the limitation on the right to equality and freedom from discrimination on the basis of sex is reasonable and demonstrably justified.
- [56]I am satisfied that the Applicant has demonstrated that the sex limitation is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination.
- [57]For the reasons I have set out above, I allow the application.
- [58]I grant the Applicant an exemption for a period of 5 years under section 113 of the AD Act from the application of sections 7, 46 contained at Chapter 2, Part 4 of the Act and section 127 contained at Chapter 5, Part 3 of the Act, in connection with:
- the advertising of the NOW Program;
- the offering of the NOW Program;
- the implementation of the NOW Program;
- the advertising of the Houlihan Lokey Sponsorship, and in particular:
- the Training;
- the National Scholarships;
- the International Scholarship;
- the offering of the Houlihan Lokey NOW Sponsorship, and in particular:
- the offer of the Training;
- the offer of the National Scholarships;
- the offer of the International Scholarship;
- the implementation of the Houlihan Lokey Sponsorship, and in particular:
- the facilitation of the Training;
- incidental conduct in relation to the maintenance and administration of the Training;
- the facilitation of the National Scholarships in respect of applicants who are offered and accept the National Scholarships;
- incidental conduct in relation to the maintenance and administration of the National Scholarships;
- the facilitation of the International Scholarship in respect of applicants who are offered and accept the International Scholarship; and
- incidental conduct in relation to the maintenance and administration of the International Scholarship.
Footnotes
[1]‘Current Exemptions’, Anti-Discrimination NSW, (Webpage)