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State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services)[2018] QIRC 72

State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services)[2018] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services) [2018] QIRC 072

PARTIES: 

State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services)

(Applicant)

CASE NO:

AD/2018/3

PROCEEDING:

Application for exemption from certain provisions

DELIVERED ON:

15 June 2018

HEARING:

On the papers

MEMBER:

Deputy President O'Connor

ORDERS:

CATCHWORDS:

  1. The State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services) is exempt from the operation of sections 14, 15, 101, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a).
  1. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for female correctional officers, female correctional supervisors and female trade instructors at Townsville Women's Correctional Centre.
  1. The exemption shall apply to the applicant from the date of this order and continue for a period of five years.

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX –where the State of Queensland (Department of Justice and Attorney-General, Corrective Services), wants to advertise for, recruit and employ, female correctional officers, female correctional supervisors and female trade supervisors – where the exemption is sought to achieve and maintain a desired ratio of female officers – where the Anti-Discrimination Commissioner supports the application – where factors relevant to consideration of an exemption are discussed

LEGISLATION:

CASES:

Anti-Discrimination Act 1991 (Qld) s 7(a), s 14, s 15, s 105, s 113, s 127

Corrective Services Act 2006 (Qld) s 38, s 39

City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450

Downer EDI Mining [2013] QCAT 99

Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21

Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198

Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782

United Synergies Ltd [2015] QCAT 89

Reasons for Decision

  1. [1]
    On 27 September 2017 the applicant, the State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services) ("QCS"), filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 ("the ADA") in the Queensland Civil and Administrative Tribunal. QCAT transferred the application to this Commission by an order dated 4 January 2018.
  1. [2]
    Section 113 of the ADA enables this Commission to grant an applicant an exemption from complying with sections of the ADA. 
  1. [3]
    The application seeks an exemption with respect to sections 14, 15, 101 and 127 of the ADA that relates to the advertising, recruitment and employment practices for female correctional officers, female correctional supervisors and female trade instructors at Townsville Women's Correctional Centre for a period of five years.
  1. [4]
    Section 14 "Discrimination in the pre-work area" relevantly outlines that a person must not discriminate in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered work. Section 15 "Discrimination in work area" prohibits discrimination in the workplace and covers terms of employment; access to opportunities; terminations of employment; training programs; and, the general treatment of the worker. Section 127 "Discriminatory advertising" is a penalty provision which prohibits the publication and display of advertisements which in any way contravene the ADA; the section also provides a clarification and defences.
  1. [5]
    Applications of this nature come to the Commission also as a function of s 113 of the ADA. That section refers to the "tribunal". Tribunal is defined in the Schedule to the ADA as being, if the matter is work-related, the Industrial Relations Commission. For clarity, for the balance of these reasons the Industrial Relations Commission will be referred to as the Tribunal.
  1. [6]
    Section 113(2)(a) of the ADA requires that an application for an exemption must be sent to the Anti-Discrimination Commission Queensland ("the ADCQ"). This process allows for the ADCQ to conduct searches against its records of whether any complaints have been made against the applicant. Moreover, it allows the ADCQ Commissioner to inform this Tribunal of whether it has any objection to the application for an exemption.
  1. [7]
    By correspondence dated 27 April 2018, the Acting ADCQ Commissioner advised this Tribunal that there were no objections to the application. The ADCQ advised that QCAT granted an application for an exemption in respect of the Brisbane Women's Correctional Centre and its subsidiary units, including the Helena Jones Women's Community Custody Centre and the Numinbah Women's Custody Centre for a period of five years.[1]
  1. [8]
    The Tribunal was advised that two further exemptions of this nature were granted on 5 January 2004 in respect of the Women's Correctional Centre and on 5 November 2008 for a period of five years; and "On 5 November 2008, an exemption in respect of each Queensland facility or complex however known under Queensland Corrective Services control that presently accommodates or within the period of any exemption granted will accommodate women, until the expiration of the period of any either: (a) five years from the date of this order; or (b) for a period of six months from the achievement of the ratios of employees at correctional facilities housing female inmates in Queensland reaching 70% female correctional officers, 60% female correctional supervisors, and 50% female trade instructors whichever is the sooner."[2]
  1. [9]
    The exemption is sought to target recruitment of female correctional officers, female trade instructors, and female correctional supervisors at the Townsville Women's Correctional Centre. The purpose of the target recruitment is to achieve the following ratios of employees at correctional facilities housing female inmates:
  • 70% female correctional officers;
  • 60% female correctional supervisor; and
  • 50% female trade instructors.
  1. [10]
    The applicant submits that this exemption is sought to enable it to increase and maintain the number of female correctional officers and female correctional supervisors at correctional facilities to ensure that its current practices and conduct do not breach the ADA should the exemption not be granted. The rationale supporting the targets for female recruitment are set out under three headings:
  • Effective rehabilitation for female prisoners;
  • conducting prisoner searches requiring the removing of clothing; and
  • prisoner welfare.
  1. [11]
    It is not necessary to further expand on those headings save for extracting the following from the application:

… a system based on a male norm may not meet the needs of female offenders. As women present with a high level of previous victimisation compared to women in the community, there should be a focus within the correctional system to ensure we are potentially not re-creating the abuse dynamic. It is for this reason also, that QCS argues that a higher percentage of female officers and supervisors within the female correctional system will assist in reducing the risk of re-traumatisation whilst serving a correctional sentence.

Exemption considerations

  1. [12]
    As was submitted by the Acting ADCQ Commissioner, I accept that there is insufficient material before the Tribunal to conclude that any of the exemptions in the Anti-Discrimination Act 1991 apply to the target requirement of female correctional officers, female supervisors, and female trade instructors. Moreover, this is not an application which is captured by s 105 of the ADA as the act for which the exemption is sought is not an equal opportunity measure; rather, it is one which seeks to improve the safety, and wellbeing of staff, visitors, prisoners, and the community at large. As a consequence, an exemption under s 113 of the Act is necessary.
  1. [13]
    The power to provide an exemption from the operation of a particular part of the ADA is discretionary. On the face of the ADA that discretion is absolute. However, over time various considerations have been compiled to ensure that exemptions are only granted where appropriate.[3] Accordingly, the following matters will be considered:
  1. (i)
    Whether the exemption is necessary;[4]
  1. (ii)
    whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;[5]
  1. (iii)
    whether the exemption is in the community interest;[6]
  1. (iv)
    whether any other persons or bodies other than the applicants support the application;[7]
  1. (v)
    whether it is reasonable and appropriate to grant the exemption;[8] and
  1. (vi)
    the effect of not granting the exemption.[9]
  1. [14]
    At this point it is apposite to mention that the granting of an exemption from certain sections of the ADA is not a trivial matter. In Downer EDI Mining, Member Paratz stated the following:

An exemption from an Act of the State Parliament, to put the [Applicant] in a different position to other citizens, is not a matter of routine. The Applicant is seeking to have part of the laws of the State not apply to it, and that is a significant matter. In appropriate circumstances, where that is warranted and necessary, then the Tribunal may make such an order, but it not a given result.

The Tribunal always has to have regard to the possible implication of an order. Whilst a blanket exemption may seem benign on its surface in the context of a well meaning application, the Tribunal will be concerned that an unnecessary or overly broad order may deprive citizens and claimants of rights and actions that they would otherwise have.[10]

  1. [15]
    In that application, Member Paratz declined to grant the exemption as the applicant company had not demonstrated that the exemption was needed to achieve the company's aims.[11] He further considered that the efforts of the applicant company were arguably promoting equal opportunity and would, therefore, be permissible under s 105.
  1. [16]
    Downer EDI Mining should be contrasted with the factually similar matter of United Synergies Ltd.[12] In that matter, Senior Member Stilgoe did not consider the application of s 105 of the ADA and granted the application for an exemption.

 Whether the exemption is necessary

  1. [17]
    Having considered the applicant's submissions, I find that the exemption is necessary having regard to the nature of duties carried out by female correctional officers, trade instructors and correctional supervisors and, in particular, the requirements under s 38 of the Correctional Services Act 2006 and the special needs of the female inmates accommodated within a correctional facility.
  1. [18]
    Section 39 of the Corrective Services Act 2006 requires personal searches of female inmates to be carried out by at least two correctional services officers all of which are required to be female or a female nurse assisting a male doctor. In practice compliance with the statutory provisions imposes a significant call on available female officers at a correctional facility and operationally significant affects the roles those female officers perform. I note, in this regard, s 106 of the ADA which provides that "…a person may do an act which is necessary to comply with an existing provision of another Act."
  1. [19]
    The Department advises that in order to maintain good order and safety within a correctional facility, an officer must be readily able to conduct searches to ensure the safety of prisoners, staff and visitors to the centre at all times.
  1. [20]
    The applicant refers to statistics from the Australian Bureau of Statistics which suggest that "the number of female prisoners has increased at a rate of 21 times higher that the number of male prisoners since 2011".[13]
  1. [21]
    I find that the exemption is necessary as it provides certainty for the applicant, certainty to conduct recruiting without fear of a successful complaint stemming from the initiative. Further, I am satisfied that the exemption is necessary to ensure the good order and safety of the correctional facility.

Whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought

  1. [22]
    The applicant submits that it has not been able to identify any non-discriminatory methods to achieve its stated policy.

Whether the exemption is in the community interest

  1. [23]
    From a broader perspective, there are advantages in the approach proposed by the applicant which serve the community interest. This is reflected in the advice contained within the application that "a higher percentage of female officers and supervisors within a female correctional facility assist in reducing the risk of re-traumatisation whilst serving a correctional sentence" and that "the perception of female prisoners is that their custodial environment is more safe and secure when there are predominantly female officers in attendance."

Whether any other persons or bodies other than the applicant support the application

  1. [24]
    There is no material before the Tribunal from any other persons or bodies other than the applicant or the ADCQ to support the application.

The effect of not granting the exemption

  1. [25]
    As stated above, the rejection of the exemption would restrict the applicant from achieving its goal of targeted recruitment to achieve the stated ratios of employees at correctional facilities housing female inmates. Equally, I am of the view that not granting the exemption may adversely impact on the good order and safety of the prison facility, impede the management of the facility, and adversely impact on the ability to provide a female custodial facility that was safe and secure.

Whether it is reasonable and appropriate to grant the exemption

  1. [26]
    I have, for the reasons advanced above, formed the view that it is reasonable to grant the application.
  1. [27]
    I note that the exemption requested is for 5 years. That request is consistent with the previous orders made by QCAT on similar applications. In the absence of any compelling reasons or objections I am minded to grant the order for a period of five years from the date of any order made.

Conclusion

  1. [28]
    From the considerations above, I make the following orders:

1. The State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services) is exempt from the operation of sections 14, 15, 101, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a).

2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for female correctional officers, female correctional supervisors and female trade instructors at Townsville Women's Correctional Centre.

3. The exemption shall apply to the applicant from the date of this order and continue for a period of five years.

Footnotes

[1] Department of Justice and Attorney-General Queensland, Re [2016] QCAT 537.

[2] Exemption application re: State of Queensland (acting through the Department of Corrective Services) [2008] QADT 26.

[3] United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT, [12].

[4] Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16.

[5] City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.

[6] Ibid.

[7] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

[8] Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.

[9] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

[10] [2013] QCAT 99, [16].

[11] Ibid [15], [22].

[12] [2015] QCAT 89.

[13] Australian Bureau of Statistics Media Release, Women prisoners increasing at a faster rate than men, 6 December 2012.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services)

  • Shortened Case Name:

    State of Queensland (Department of Justice and Attorney General, Queensland Corrective Services)

  • MNC:

    [2018] QIRC 72

  • Court:

    QIRC

  • Judge(s):

    Deputy President O'Connor

  • Date:

    15 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boeing Australia Holdings Pty Ltd & related entities (2003) QADT 21
2 citations
Jump To
Cite 1 - (2003) QADT 21
Cite 2 - (2003) QADT 21
Brown v Moore (1996) EOC 92
1 citation
Jump To
Cite 1 - (1996) EOC 92
City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 9 2-450
1 citation
Jump To
Cite 1 - (1992) EOC 9 2-450
Department of Justice and Attorney-General Queensland, Re [2016] QCAT 537
1 citation
Jump To
Cite 1 - [2016] QCAT 537
Downer EDI Mining [2013] QCAT 99
3 citations
Jump To
Cite 1 - [2013] QCAT 99
Cite 2 - [2013] QCAT 99
Cite 3 - [2013] QCAT 99
Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16
2 citations
Jump To
Cite 1 - [2001] QADT 16
Cite 2 - [2001] QADT 16
Exemption application re: State of Queensland (acting through the Department of Corrective Services) [2008] QADT 26
1 citation
Jump To
Cite 1 - [2008] QADT 26
Fares v Boxhill College of TAFE a decision of the Equal Opportunity Board of Victoria (1992) EOC 92
1 citation
Jump To
Cite 1 - (1992) EOC 92
Minister for Education and Commissioner for Equal Opportunity & Ors (1987) EOC 9 2-198
2 citations
Jump To
Cite 1 - (1987) EOC 9 2-198
Cite 2 - (1987) EOC 9 2-198
Stevens v Fernwood Fitness Centres Pty Ltd (1987) EOC 92
1 citation
Jump To
Cite 1 - (1987) EOC 92
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 9 2-782
1 citation
Jump To
Cite 1 - (1996) EOC 9 2-782
United Synergies Ltd [2015] QCAT 89
3 citations
Jump To
Cite 1 - [2015] QCAT 89
Cite 2 - [2015] QCAT 89
Cite 3 - [2015] QCAT 89

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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