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Re: Children by Choice Association Incorporated[2023] QIRC 293

Re: Children by Choice Association Incorporated[2023] QIRC 293

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Children by Choice Association Incorporated [2023] QIRC 293

PARTY:

Children by Choice Association Incorporated

(Applicant)

CASE NO.:

AD/2023/77

PROCEEDING:

Application

DELIVERED ON:

10 October 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

  1. Children by Choice Association Incorporated is exempt from the operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).
  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 Children by Choice Association Incorporated.
  1. The exemption shall apply to Children by Choice Association Incorporated for a period of five years from the date of these orders.

CATCHWORDS:

EQUAL OPPORTUNITY AND DISCRIMINATION – application to grant exemption under the Anti-Discrimination Act 1991 (Qld) s 113 so the Applicant can advertise for,  recruit and employ only women to all positions – where the Applicant is an independent non-profit providing services to women and pregnant people  – where many of the Applicant’s clients report experiencing domestic violence, sexual assault, or reproductive coercion, predominantly perpetrated by men – where the exemption is sought to enable the Applicant to meet its objectives and service provision obligations under funding arrangements – where the exemption is sought to enable the Applicant to provide services in a space and manner whereby women and pregnant people feel safe and comfortable – where the Queensland Human Rights Commission says that excluding males from work with the Applicant is prima facie unlawful sex discrimination under the AD Act – where the Queensland Human Rights Commission submits the exemption should be limited to roles that require direct contact with clients – where the Queensland Human Rights Commission proposes alternative measures for achieving the objectives of the exemption application – where the exemption is necessary – where there are no suitable non-discriminatory ways of achieving the objects or purposes for which the exemption is sought – where the exemption is in the community interest – where persons or bodies other than the Applicant support the exemption application – exemption granted for five years

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – where the Queensland Human Rights Commission submits that the Applicant has not demonstrated that restricting work to women only is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination – where the limitation is demonstrably justified – exemption granted for five years

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 7, 14, 15, 15A, 25, 104, 105, 113, 124, 127, 174B

Human Rights Act 2019 (Qld) ss 5, 8, 9, 13, 15, 48, 58

CASES:

Boeing Australian Holdings Pty Ltd & related entities [2003] QADT 21

Castles v Secretary to the Department of Justice & Ors [2010] VSC 310

Downer EDI Mining [2013] QCATA 276

Exemption application re: Palmpoint Pty Ltd [2006] QADT 12

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

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Re: Children by Choice Association Inc. [2018] QIRC 153

Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326

Re: Ipswich City Council [2020] QIRC 194

Re: Leidos Australia Pty Ltd [2021] QIRC 229

Re: Mackay Regional Council [2022] QIRC 064

Re: Protech Personnel Pty Ltd [2022] QIRC 029

Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

Sundale Limited [2019] QCAT 83

Reasons for Decision

Introduction

  1. [1]
    On 4 August 2023, Children by Choice Associated Incorporated (‘Children by Choice’) filed an application for an exemption from the operation of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’), specifically in relation to the attribute of ‘sex’ in s 7(a) of the AD Act, for a period of five years. Section 113 of the AD Act allows the Queensland Industrial Relations Commission (‘the QIRC’) to exempt an applicant from complying with certain sections of the Act.
  1. [2]
    The Applicant currently has a five-year exemption from 2 November 2018 which was ordered by O'Connor VP in Re: Children by Choice Association Inc.[1] Vice President O'Connor ordered the exemption to apply only to acts or omissions reasonably necessary to recruit sufficient females into positions including Counsellors and the roles of Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator.
  1. [3]
    The current exemption sought is described in the application as follows:

Children by Choice seeks an exemption that will provide that:

  1. Children by Choice is exempt from the operations of sections 14, 15, 15A, 124 and 127 of the AD Act in relation to the attribute in section 7(a) of the AD Act.
  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 Children by Choice.
  1. The exemption shall apply to Children by Choice for a period of 5 years.
  1. [4]
    The Industrial Registry provided a copy of the application to the Queensland Human Rights Commission (‘the QHRC’) on 7 August 2023. The QHRC filed its submissions on 8 September 2023 and the Applicant filed its submissions in reply on 27 September 2023.
  1. [5]
    The question for determination is whether Children by Choice should be granted an exemption pursuant to s 113 of the AD Act.  That question requires consideration of both the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) (‘the HR Act’).

Legislative framework

  1. [6]
    The QIRC’s power to grant an exemption in relation to work-related matters is conferred by s 174B(b) of the AD Act.
  1. [7]
    Section 113(1) of the AD Act provides that an order for exemption can be made as follows:

113 Tribunal

  1. The tribunal, on application by—
  1.  a person, on the person’s own behalf, or on behalf of the person and another person or other people; or
  1.  2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or
  1.  a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

…

  1. [8]
    Section 113(2) provides that before deciding an application, the tribunal must:
  1. give the commissioner a copy of the application and a copy of the material filed in support of the application; and
  1. have regard to any submission made by the commissioner on the application, including a submission on the process for considering the application.
  1. [9]
    When exercising its discretion to grant an exemption, the QIRC must consider the obligations imposed by the HR Act.
  1. [10]
    Section 48 of the HR Act relevantly provides:

48 Interpretation

  1.  All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
  1.  If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
  1.  International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
  1.  This section does not affect the validity of—
  1.  an Act or provision of an Act that is not compatible with human rights; or
  1.  a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
  1.  This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [11]
    As determined by Deputy President Merrell in Re: Ipswich City Council, [2] the combined effect of ss 5(2)(a) and 48 of the HR Act is that when interpreting s 113 of the AD Act, the QIRC must comply with s 48 of the HR Act.[3]
  1. [12]
    Section 58 of the HR Act imposes certain obligations on public entities as follows:

58 Conduct of public entities

  1.  It is unlawful for a public entity—
  1.  to act or make a decision in a way that is not compatible with human rights; or
  1.  in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1.  Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

Example—

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

  1.  Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
  1.  This section does not apply to an act or decision of a private nature.
  1.  For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
  1.  identifying the human rights that may be affected by the decision; and
  1.  considering whether the decision would be compatible with human rights.
  1.  To remove any doubt, it is declared that—
  1.  an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1.  a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
  1. [13]
    Section 9(4)(b) of the HR Act defines ‘public entity’, stating that a public entity does not include a court or tribunal, except when acting in an administrative capacity.
  1. [14]
    As held by Merrell DP in Re: Ipswich City Council, the QIRC acts in an administrative capacity when deciding an application for exemption under s 113 of the AD Act. Therefore, the QIRC must observe the relevant provisions of s 58 of the HR Act.
  1. [15]
    In effect, s 58 of the HR Act provides that the QIRC must not act or make a decision in a way that is not compatible with human rights. Further, when making a decision, the QIRC must not fail to give proper consideration to a human right relevant to the decision.
  1. [16]
    The HR Act defines ‘human rights’ to mean the rights stated in part 2, divisions 2 and 3. Part 2, division 2, deals with particular civil and political rights. The first of those rights is found in s 15 as follows:

15 Recognition and equality before the law

  1.  Every person has the right to recognition as a person before the law.
  1.  Every person has the right to enjoy the person's human rights without discrimination.
  1.  Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1.  Every person has the right to equal and effective protection against discrimination.
  1.  Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [17]
    The phrase ‘compatible with human rights’ is defined in s 8 of the HR Act as follows:

8 Meaning of compatible with human rights

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

  1.  does not limit a human right; or
  1.  limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
  1. [18]
    Section 13 of the HR Act provides that human rights may be limited as follows:

13 Human rights may be limited

  1.  A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1.  In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
  1.  the nature of the human right;
  1.  the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1.  the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1.  whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1.  the importance of the purpose of the limitation;
  1.  the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1.  the balance between the matters mentioned in paragraphs (e) and (f).

Children by Choice’s exemption application

  1. [19]
    The application is accompanied by an affidavit of Ms Daile Berkman,[4] Chief Executive Officer of Children by Choice Association Incorporated (Ms Daile Berkman is referred to in this decision as ‘Ms Kelleher’). The affidavit provides more detailed information in support of the application.
  1. [20]
    In its application, Children by Choice describes itself and the services it provides as follows:

Children by Choice is an independent non-profit [organisation] with the primary objective of ensuring that women and pregnant people who experience hardship or distress with a pregnancy receive high-quality and unbiased decision-making counselling, evidence-based information, material aid, and referral about all pregnancy options, including abortion, adoption and parenting.

  1. [21]
    Children by Choice’s services include education, community engagement, research, advocacy and project work. It receives funding from the Department of Justice and Attorney-General under Sexual Violence and Women’s Support Services investment specifications. Twelve women are currently employed by the Applicant.
  1. [22]
    Ms Kelleher affirms that all roles are ‘client facing’, apart from Finance and Operations and Research roles. Ms Kelleher says that positions within the organisation are subject to change, in connection with funding provided and project work undertaken. This is the reason Children by Choice seeks an exemption that is not referable to any particular position.[5]
  1. [23]
    The provision of counselling and support services to women and pregnant people is delivered by telephone and face-to-face appointments at Children by Choice’s offices in Toowong.
  1. [24]
    Ms Kelleher states that Children by Choice operates out of a suite in a small office building, with a glass front door that opens into a reception area. Beyond this, Ms Kelleher says, is a largely open plan office space, much of which is visible from the reception area. Several offices and rooms are connected to that space, including staff offices, meeting rooms, and offices in which face-to-face counselling takes place. Ms Kelleher says that this means that any staff member may be visible, or come into contact with, those attending face-to-face counselling services.[6]
  1. [25]
    Ms Kelleher says that 43% of Children by Choice’s clients have reported experiencing domestic violence, sexual assault, or reproductive coercion, predominantly perpetrated by men.  Due to these experiences, many clients are often fearful and/or have a trauma response to men and would not feel comfortable or safe receiving services from men or attending a venue where men are present.[7]
  1. [26]
    Ms Kelleher says that anecdotally, staff at Children by Choice have advised her that women and pregnant people accessing counselling and support at Children by Choice:[8]
  1. Often, at the point of intake, seek confirmation that their session will be facilitated by a woman.
  1. Often report that when discussing an unexpected pregnancy, they feel more comfortable doing so with someone who does not identify as male.

Whether the exemption is necessary

  1. [27]
    In summary, Ms Kelleher says the exemption is necessary for Children by Choice to meet its objectives and service provision obligations under funding arrangements by providing services in a space and manner whereby all women and pregnant people feel safe to attend and participate in. Further, for the reasons set out above, a high number of women and pregnant people request services be provided by women and therefore it is necessary for employees of Children by Choice to be women. Finally, the exemption is necessary to provide Children by Choice with certainty in conducting recruitment and employment of women without concern that doing so is unlawful and may subject it to a complaint.[9]

The effect of not granting an application

  1. [28]
    In summary, Ms Kelleher says that if the exemption is not granted, Children by Choice may not be able to provide a space where women and pregnant people who have been victims of domestic violence, sexual assault or reproductive coercion perpetrated by men are able to attend for services and feel safe and/or without risk of being exposed to men.  Further, Children by Choice may not be able to employ sufficient levels of staff to provide services to those specifically requesting that services be provided by women. Finally, Ms Kelleher says that if the application is not granted, it may be exposed to a risk of complaints under the AD Act.[10]

Queensland Human Rights Commissioner’s submissions

  1. [29]
    The Queensland Human Rights Commissioner’s submissions respond to Children by Choice’s application and addresses the Queensland Industrial Relations Commission’s obligations in deciding whether to grant the application.

The application

  1. [30]
    The Human Rights Commissioner notes that while the Applicant states that it seeks a renewal of an exemption granted in 2018, the current application is broader than that exemption in that in this application, the applicant seeks an exemption to allow it to employ only women in all roles, whereas the 2018 exemption applied only to specified roles outlined above at [2].[11]
  1. [31]
    The QHRC submits that since the 2018 exemption was granted, the HR Act commenced on 1 January 2020, which carries with it new obligations for the QIRC to consider. The Human Rights Commissioner states that the commencement of the HR Act has had considerable significance for the consideration of requests for exemptions.[12]

Tribunal exemptions under the Anti-Discrimination Act 1991

  1. [32]
    The Human Rights Commissioner addresses the discretion of the tribunal[13] to grant an exemption from the provision of a specified provision of the AD Act and states that as there is no express criteria in the AD Act for the exercise of the discretion, the extent of the power is to be determined by reference to the subject matter, scope and purpose of the AD Act.[14] 
  2. [33]
    The Human Rights Commissioner refers to s 113 of the AD act which is set out above at [7] and says that the tribunal must first consider whether an exemption is necessary in the sense that the conduct would otherwise contravene the AD Act.  If the tribunal is satisfied that an exemption is necessary, the Human Rights Commissioner refers to factors relevant to the exercise of discretion which are drawn from case law:
  1. whether the proposed exemption is appropriate and reasonable;
  1. whether there are any non-discriminatory ways of achieving the purpose for which the exemption is sought;
  1. whether the exemption is in the community interest;
  1. whether the exemption is supported by other persons; and
  1. whether the exemption is consistent with the objects and purposes of the Act.[15]

Application of the Human Rights Act 2019

  1. [34]
    The Human Rights Commissioner then turns to the obligations of the tribunal under the HR Act and says that the HR Act applies to the tribunal when it is: interpreting statutory provisions; acting in an administrative capacity; and performing functions relevant to human rights.  I have given regard to the submissions of the Human Rights Commissioner regarding the application of particular sections of the HR Act[16] and note that the application of the HR Act was considered by Merrell DP in Re: Ipswich City Council[17] as referred to above at [11] to [14] of these reasons for decision.[18]
  1. [35]
    The Human Rights Commissioner submits that the obligations under section 58 of the HR Act are both substantive and procedural.  The substantive obligation under s 58(1)(c) being 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 relevant to the decision.[19]
  1. [36]
    The Human Rights Commissioner points to the definition of ‘compatible with human rights’ set out in s 8 of the HR Act (see [17] above).
  1. [37]
    The Human Rights Commissioner says that guidance about the meaning of giving proper consideration to human rights is provided for in s 58(5)(a) and (b) (see above [12]).  The  section explicitly describes two elements necessary to demonstrate proper consideration, requiring the decision-maker to identify the human rights that may be affected by the decision rather than not necessarily identifying the ‘correct’ rights.[20]
  1. [38]
    With regard to the standard of proper consideration to human rights required, the Human Rights Commissioner says:

The standard of consideration 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.[21]  The aspect of identify 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. Decision makers 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.[22]

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.

Human rights considerations

  1. [39]
    The Human Rights Commissioner says that the protection from discrimination in the AD Act is reinforced and must be read with the identified rights in the HR Act. Determining whether an exemption under s 113 of the AD Act would engage human rights can be determined by reference to the effect of the exemption if granted.[23]
  1. [40]
    Furthermore, the Human Rights Commissioner submits that the effect of the proposed exemption would be to allow Children by Choice to discriminate on the basis of sex in work and work-related areas. Such an exemption would affect the right to equality and equal protection of the law without discrimination as set out in s 15 of the HR Act (which I have set out above at [16]).[24]
  1. [41]
    The Human Rights Commissioner states that as the discretion to grant an exemption must be exercised compatibly with human rights, the exemption must be either a measure for assisting people disadvantaged by discrimination, or for activities that limit human rights reasonably and no more than is demonstrably justified in a free and democratic society.[25]
  1. [42]
    The Human Rights Commissioner contends that the purpose of s 15(5) of the HR Act is to promote substantive equality and if the activity is a special measure within s 15(5), it would be compatible with human rights.
  1. [43]
    The Human Rights Commissioner argues that the proposed exemption is not a measure under s 15(5) and therefore, the onus is on Children by Choice to demonstrate that the limitation is demonstrably justified in accordance with s 13 of the HR Act which is referred to as the proportionality test. The Human Rights Commissioner says that the factors in s 13(2) are important but not exclusive.[26]
  1. [44]
    With reference to the rights to equality in ss 15(3) and (4) of the HR Act, the Human Rights Commissioner says that every individual in Queensland has an equal right to be protected from discrimination.[27]
  1. [45]
    The Human Rights Commissioner submits that Children by Choice have not demonstrated that restricting work to women only is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination.

Children by Choice’s further submissions

  1. [46]
    On 27 September 2023, Children by Choice provided submissions in the reply to the matters raised by the QHRC. The submissions were accompanied by a second affidavit of Ms Kelleher affirmed on 21 September 2023.[28]

Consideration of and compatibility with human rights

  1. [47]
    Children by Choice agrees that the proposed exemption is not a measure under s 15(5) of the HR Act.
  1. [48]
    Children by Choice also agrees with the QHRC that in deciding whether to grant or renew an application for exemption under section 113 of the AD Act, the QIRC must consider human rights and make a decision that is compatible with human rights.
  1. [49]
    Children by Choice identifies that the human rights potentially affected by the proposed exemption are those set out at s 15(3) and (4) of the HR Act. This is because the exemption may have the effect that the Applicant can lawfully discriminate by advertising, recruiting and employment women only, conduct that may otherwise be unlawful discrimination on the basis of sex in the AD Act.
  1. [50]
    However, Children by Choice notes that pursuant to s 8(b) of the HR Act, a decision to grant the exemption will still be compatible with human rights if it limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13 of the HR Act.
  1. [51]
    Children by Choice also notes that section 13(1) of the HR Act provides that a human right may be subject under law only to reasonable limitations that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.  Section 13(2) sets out a list of factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable per s 13(1).
  1. [52]
    Children by Choice submits that granting the exemption would be compatible with human rights within the meaning of section 8(b) because the proposed exemption upholds the right the human rights of its clients and limits the relevant human rights of potential male employees only the to the extent that is reasonable and demonstrably justifiable in accordance with section 13 of the HR Act.

Consideration: The AD Act

Section 113 AD Act

  1. [53]
    As noted above, the Human Rights Commissioner was provided with a copy of the application and material filed in support of the application.[29] I note that the Applicant sought to file reply material and that this reply material was also provided to the Human Rights Commissioner who indicated by email dated 29 September 2023 that no further  submissions would be provided.
  1. [54]
    I confirm that I have had regard to the submissions of the Human Rights Commissioner on the application, including the submissions made on the process for considering the application.[30]
  1. [55]
    It is the case that matters to be taken into account in considering whether to exercise the discretion to grant an application for exemption under s 113 can be drawn from case law.  Those matters are summarised in the Human Rights Commissioner’s submissions (see [33] above).

Is the exemption necessary?

  1. [56]
    The Human Rights Commissioner notes that the applicant must satisfy the tribunal that the conduct would arguably contravene the AD Act without the exemption and notes that excluding males from work with Children by Choice is prima facie unlawful sexual discrimination under the act.
  1. [57]
    The Human Rights Commissioner says that if being female is objectively necessary to perform a role, the exemption in section 25 of the AD Act for imposing genuine occupational requirements might apply. Such an exemption might apply to positions that require direct contact with clients, most of whom are women who for various reasons prefer to deal with women only. Although an exemption might apply, the grant of an exemption would provide certainty to the Applicant.[31]
  1. [58]
    The Human Rights Commissioner agrees that an exemption relating to the roles requiring direct contact with clients is necessary and that there are no other reasonable means of achieving the purpose of providing the services to women in a safe and supportive manner.[32]
  1. [59]
    However, the Human Rights Commissioner questions whether an exemption is necessary for roles it identifies as not requiring direct contact with clients.

Matters raised by the Human Rights Commission regarding roles ‘that do not require direct contact with clients’

  1. [60]
    For administrative roles that do not require direct contact with clients, the Applicant says that an exemption is necessary because people occupying the roles might be visible to, or come into contact with, clients attending the premises in Toowong due to the layout of the premises.[33]
  1. [61]
    The Human Rights Commissioner considers that the layout of the office is not a cogent reason for granting an exemption for such administrative roles. The Human Rights Commissioner suggests that there might be other reasonable means of achieving the purpose of the exemption, for example, changing the layout of the premises or making other adjustments to minimise contact between clients and staff in non-contact roles. The Human Rights Commissioner suggests that given the Applicant also provides services by telephone, it might be that attendance on the premises accounts for a small part of the Applicant’s work. 

Applicant’s submissions in reply to matters raised by the Human Rights Commission

  1. [62]
    Children by Choice notes the QHRC’s submission questioning whether the exemption is necessary for non-client facing roles, and the suggestions made regarding other reasonable means of achieving the stated purpose of the exemption. Children by Choice submits that in response, it has given further consideration as to whether there are other reasonable means of achieving the purposes of the exemption with regard to roles that do not provide direct service provision.[34] The Applicant has made extensive submissions in reply to the matters raised by the Human Rights Commission above at [61].
  1. [63]
    Ms Kelleher states that all roles at Children by Choice contain general duties in the position description and by way of example, exhibits a copy of the position description for the Senior Research Assistant role.[35] That position description contains the following:

General

  • Collaborate effectively with other team members, including working together on shared projects, staff meetings and day to day activities. Assist and support colleagues when they may be experiencing a high demand period
  • Contribute to a positive organisational culture
  • Operate within a feminist framework and adhere to the approved Decision Making Principles
  • Maintain and apply current knowledge of the evidence and best practice, and work with the CEO to identify and participate in skills development appropriate to the role and annual work plan
  • Plan time effectively to manage competing demands, including work/life balance
  • Assist the CEO to report effectively to management committee and stakeholders
  • Observe Children by Choice policies and procedures
  • Contribute to Children by Choice’s collective efforts, including strategic planning, position papers and public events.[36]
  1. [64]
    Ms Kelleher states that Children by Choice’s workforce of 12 employees does not include a dedicated receptionist. In fulfilling their general duties, all staff, including those in non-client roles, are required from time to time to assist in day-to-day activities such as greeting clients or answering the telephone.[37]
  1. [65]
    Ms Kelleher says that the Children by Choice office could not operate within current funding levels if the general duties set out at [63] were not being undertaken by all staff.[38]
  1. [66]
    With further reference to the QHRC’s observation that some work is undertaken by telephone and that it may only be necessary for some employees to attend the office for a small part of their working time, Children by Choice says that in-person services need to be available at all times, even if the need varies on a particular day.[39]
  1. [67]
    With reference to Children by Choice’s Access and Equity Policy,[40] Ms Kelleher says that the primary target client is all Queenslanders experiencing pregnancy and their support people, including health and community service providers. Ms Kelleher says that while this group may include men as trans men or support people, it is predominantly women seeking these services.[41]
  1. [68]
    Ms Kelleher states that clients access Children by Choice services both in person and over the telephone. Ms Kelleher says that due to the timeframe by which pregnant people are required to make decisions about their pregnancy, Children by Choice aims to see clients as soon as possible and at a day and time that suits them. Children by Choice provides in-person services every working day and the number of in-person services each day varies based on demand.[42]
  1. [69]
    Ms Kelleher says that in-person services are sporadic and provided as needed and says that this can range from one person per week to up to 10 in-person services per week.  Ms Kelleher says that it is not feasible for Children by Choice to restrict in-person services to particular days or times other than usual business hours.[43]
  1. [70]
    Children by Choice reiterates its earlier submission that due to the physical layout of the office, the small number of staff, the organisational structure and the organisation’s limited budget, there is no reasonable means by which it can create a role that a man can perform.

Conclusion – the exemption under the AD Act is necessary for all positions employed by Children by Choice

  1. [71]
    I am of the view that Children by Choice have demonstrated that there is a need for it to be exempt from the AD Act with regard to the employment of all roles within the organisation.  It seems clear to me on the basis of the submissions above that all roles involve some ‘outward facing’ duties and that it would not be practical for some members of a very small team to have their duties adjusted to preclude them from being in contact with the clients of the Applicant.
  1. [72]
    Further, I accept that the nature of the services provided by Children by Choice means that it is not possible or appropriate for it to be required to structure itself such that some employees spend little or no time in the office or work varied hours.
  1. [73]
    I accept the submissions of the Applicant regarding the nature and layout of the office and impracticality of readjusting the layout or design of the office to enable a man to work in the office and at no stage become visible to or come into contact with a client who is moving about within the small office premises.
  1. [74]
    Having reviewed the application for exemption, I find that an exemption in the nature sought by the Applicant is necessary in that the proposal by Children by Choice to employ only women, is conduct that would otherwise contravene the AD Act. 
  1. [75]
    Having determined that the exemption is necessary, I will consider the submissions made by the parties as to whether I should exercise the discretion. As is set out in the legal framework above from [6] to [18], making a decision about an exemption application under the AD Act involves consideration of a range of factors, and also involves a consideration of the HR Act.

Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

  1. [76]
    Ms Kelleher states that Children by Choice has not been able to identify any non-discriminatory ways of achieving its objectives and providing its services.[44]
  1. [77]
    In determining whether the exemption should relate to all positions employed by Children by Choice or only some, I have considered the submissions of the Human Rights Commissioner suggesting some solutions which may offer non-discriminatory ways of achieving the Applicant’s objectives and providing its services. For the reasons given above, I am satisfied that the Applicant has considered those recommended approaches and has demonstrated that they are not practical or viable.
  1. [78]
    In consideration of the submissions of Children by Choice set out above from [62] to  [70] and consideration of those submissions set out from [71] to [74], I accept that there is no identifiable way of achieving the objects or purposes for which the exemption is sought.

Is the exemption in the community interest?

  1. [79]
    Ms Kelleher refers to the important service Children by Choice provides to the community by ensuring that women and pregnant people experiencing hardship or distress with a pregnancy receive high-quality and unbiased decision-making counselling, evidence-based information, material aid, and referral. Ms Kelleher says that the service is particularly important for vulnerable women and pregnant people in the community who have experienced or are experiencing domestic violence, sexual assault, or reproductive coercion.
  1. [80]
    Ms Kelleher states that the increasing level of service access recorded by Children by Choice exemplifies the need for these services in the community.[45] In the 2021-2022 financial year, Children by Choice recorded 13,257 client interactions, and supported 2,365 individual clients, with clients averaging seven counselling sessions each.  Ms Kelleher says that over this period there was a 10.4% increase in the number of clients accessing Children by Choice services and a 44.4% increase in the number of times Children by Choice counsellors interacted with clients.[46]
  1. [81]
    Having regard to the submissions of the Applicant regarding the service rendered to the community by Children by Choice, and the content of the material provided by other organisations addressed below at [82] to [83] I accept that the exemption is in the community interest.

Are there any other persons or bodies, other than Children by Choice, supporting the exemption application?

  1. [82]
    Ms Kelleher exhibits to her affidavit copies of letters of support. Organisations which support the exemption application include the Domestic Violence Action Centre, DVConnect, the Centre Against Domestic Abuse (Moreton Bay region) and Women’s Health and Equality Queensland.
  1. [83]
    I have read the letters of support from those organisations and confirm that each organisation supports the exemption application and have provided detailed reasons as to why they support the exemption application.

Purposes and objects of the AD Act

  1. [84]
    One of the purposes of the AD Act is to ‘promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work…’.[47]  One way that purpose is to be achieved by prohibiting discrimination unless a exemption applies.[48] It is clear the AD Act anticipates that there may be a need for exemptions to be granted in particular circumstances. I am satisfied that an exemption of the nature sought by the Applicant is consistent with the purposes and objects of the Act.

Consideration: The HR Act

Human Rights considerations: the right to recognition and equality before the law

  1. [85]
    I now turn to consideration of the relevant sections of the HR Act. The Human Rights Commission and the Applicant have identified, and I agree, that the proposed exemption impacts on the right to recognition and equality before the law set out in s 15 of the HR Act. As both the Applicant and the Human Rights Commissioner note, the exemption sought is not a measure within the meaning of s 15(5) of the HR Act. As a result, the proportionality test set out at s 13 of the HR Act is to be applied.  The Applicant bears the onus of demonstrating that the limitation is demonstrably justified and proportionate.
  1. [86]
    I understand that there will be some overlap or repetition of matters addressed above in the following consideration of the relevant provisions of the HR Act. 

Is the limitation demonstrably justified per s 13 HR Act?

  1. [87]
    Section 13(1) of the HR provides that a human right by be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Section 13(2) sets out factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable.

Section 13(2)(a): the nature of the human right

  1. [88]
    As noted above, the relevant human right in this application is the right to equality before and equal protection of the law without discrimination and equal and effective protection against discrimination as set out in section 15(3) and (4) of the HR Act.

Section 13(2)(b): the nature of the purpose of the limitation

  1. [89]
    The Applicant’s Client Services Charter provides a framework within which services are provided and has been developed to meet the human rights needs of the people using its services. The successful provision of these services, being the purpose of the proposed limitation, is consistent with a free and democratic society based on human dignity, equality and freedom.
  1. [90]
    The submissions of Children by Choice considered above[49] provide a compelling set of reasons regarding the purpose of the limitation. I understand the nature of the purpose of the limitation to be primarily focused on providing services in a way that enables women and pregnant people to feel safe to attend and participate in those services. The need to provide the services in a safe space and manner arises from the particular characteristics of the clients, a high proportion of whom have or are experiencing domestic violence, sexual assault and/or reproductive coercion perpetrated by men.

Section 13(2)(c): the relationship between the limitation and its purpose, including whether the limitation helps achieve the purpose

  1. [91]
    Children by Choice says that the proposed limitation and the purpose described above are closely related. The limitation will significantly assist the Applicant to achieve the purpose by allowing it to employ sufficient staff to meet the demand of its clients within the current staffing budget. Further, the limitation will enable the Applicant to deliver its services in a manner appropriate to clients and with a trauma-informed approach. The limitation will also assist the Applicant to meets its organisational objectives and funding obligations and meet the Human Services Quality Standards it is obliged to meet. The Standards impose an obligation to protect and promote the human rights of people using its services.
  1. [92]
    The comprehensive submissions of Children by Choice and the affidavit evidence of Ms Kelleher make it clear that the limitation helps achieve the purpose by ensuring that Children by Choice is able to employ women in circumstances where it is not appropriate for services to be provided by men or for services to be provided in an environment where clients will come into contact with men. Children by Choice employs approximately 12 people, and roles are subject to change. If the limitation was not implemented, Children by Choice may be in a situation where it would be unable to provide the services it is obligated to provide under relevant funding and service provision agreements.

Section 13(2)(d): Whether there are any less restrictive and reasonably available ways to achieve the purpose

  1. [93]
    Children by Choice submits that there are no less restrictive or reasonably available ways to achieve the purpose.
  1. [94]
    I note the submissions considered earlier in these reasons regarding this point at paragraphs [66], [70], and [76] to [78].
  1. [95]
    I accept that there are no less restrictive and reasonably available ways to achieve the purpose within Children by Choice’s funding and organisational arrangements.

Section 13(2)(e),(f) and (g): the balance of the importance of the limitation and the importance of the human right, taking into account the nature and extent of the limitation on the human right

  1. [96]
    Children by Choice says that it provides an important service to women and pregnant people in the community. The limitation will ensure the Applicant is able to continue providing these services in accordance with its objectives and funding obligations and is therefore very important.   Without the limitation, Children by Choice may not be able to provide its services in a safe and effective manner and if services cannot be provided in this way, the human rights of women seeking the services would be severely compromised as they may not have access to the services at all.
  1. [97]
    Children by Choice agrees that the human right to be limited is also very important, but says that the extent of that limitation is confined to the relatively small current and prospective staff of the Applicant. Children by Choice notes that the prospective staff have many other employment opportunities in organisations other than Children by Choice. On balance, having regard to the very broad community benefits of the services provided by the Applicant, the limitation is reasonable and justifiable.
  1. [98]
    The Human Rights Commissioner submits that Children by Choice have not demonstrated that restricting work to women only is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination. I note, however, this submission was made before Children by Choice made its detailed submissions addressing the relevant sections of the Human Rights Act.
  1. [99]
    I have considered the nature and the extent of the limitation on the human right. The human right is one of significant importance. I note that the limitation is confined to men who are prospective employees of Children by Choice, an organisation employing approximately 12 people at any one time. I balance this with the importance of the limitation, which is to ensure that women and pregnant people, many of whom are vulnerable and therefore request that services be provided by women, feel safer in an environment where they will not come into contact with men.  Many women access services provided by Children by Choice both in person and on the phone each year. Several organisations have written letters supporting the need for the services provided by Children by Choice. 

Human Rights considerations

  1. [100]
    I have considered the human right which will be limited by the granting of the exemption in the terms sought.  I am satisfied for the reasons given above, that the exemption limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.  I am therefore satisfied that for the purposes of section 8 of the HR Act, the granting of the exemption is a decision which is compatible with human rights.
  2. [101]
    The Human Rights Commissioner submits, and I agree, that the granting of an exemption is not a trivial matter nor is it routine as it deprives citizens and claimants of rights and actions they would otherwise have.[50]
  1. [102]
    Ms Kelleher states that it is reasonable and appropriate to grant the exemption so that Children by Choice is able to deliver the services described above in a safe environment, with staffing levels that are able to meet demand and with certainty in relation to the legality of its operations.[51] I find that Children by Choice has discharged its onus to demonstrate that granting an exemption is necessary, reasonable and appropriate and that any limitation on human rights arising from the granting of the exemption is proportionate when balancing the impact of the exemption with the purpose of the exemption.
  1. [103]
    For the reasons provided in this decision, I am satisfied that it would be reasonable and appropriate for me to exercise discretion to grant the exemption sought in the terms sought.

Order

  1. [104]
    I make the following orders:
  1. Children by Choice Association Incorporated is exempt from the operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).
  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 Children by Choice Association Incorporated.
  1. The exemption shall apply to Children by Choice Association Incorporated for a period of five years from the date of these orders.

Footnotes

[1] [2018] QIRC 153 (‘Re: Children by Choice Inc.’).

[2] [2020] QIRC 194 (‘Re: Ipswich City Council’).

[3] Ibid [35].

[4] Affidavit of Daile Bree Berkman affirmed 4 August 2023, [2]. The affidavit was affirmed in the deponent’s legal name, however she is known in the workplace as Daile Kelleher.

[5] Ibid [12].

[6] Ibid [13].

[7] Ibid [15].

[8] Ibid [16].

[9] Ibid [18]-[20].

[10] Ibid [28].

[11] Correspondence from Mr Scott McDougall, Queensland Human Rights Commissioner to the Queensland Industrial Relations Commission, 8 September 2023, 1 (‘QHRC submissions’).

[12] Ibid 2.

[13] ‘Tribunal’ in this context refers to the Queensland Industrial Relations Commission and ‘member’ refers to an Industrial Commissioner.

[14] QHRC submissions (n 11) 2.

[15] The Human Rights Commissioner cites the following cases: Boeing Australian Holdings Pty Ltd & related entities [2003] QADT 21; Downer EDI Mining [2013] QCATA 276 (‘Downer’); Sundale Limited [2019] QCAT 83.

[16] QHRC submissions (n 11) 2-3.

[17] Re: Ipswich City Council (n 2) [14]-[40].

[18] Ibid cited in Re: Mackay Regional Council [2022] QIRC 064; Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440; Re: Cobham Aviation Services Australia Pty Ltd & Ors [2022] QIRC 326; Re: Protech Personnel Pty Ltd [2022] QIRC 029; Re: Leidos Australia Pty Ltd [2021] QIRC 229.

[19] QHRC submissions (n 11) 3.

[20] Castles v Secretary to the Department of Justice & Ors [2010] VSC 310.

[21] Judicial College of Victoria, ‘3.2. Obligations on public authorities (s 38)’, Charter of Human Rights Bench Book (Web page, 1 September 2017) [15]–[16] .

[22] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [137].

[23] Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869, [310] (‘Lifestyle Communities Ltd (No. 3)’).

[24] QHRC submissions (n 11) 4.

[25] Lifestyle Communities Ltd (No. 3) (n 23) [420].

[26] QHRC submissions (n 11) 6.

[27] Ibid 7.

[28] Affidavit of Daile Bree Berkman affirmed 21 September 2023. I note that the deponent has affirmed this second affidavit in her legal name, but as noted above, the deponent goes by ‘Ms Kelleher’ in a workplace context.

[29] Anti-Discrimination Act 1991 (Qld) s 113(2)(a).

[30] Ibid s 113(2)(b).

[31] See, e.g., Re: Children by Choice Inc. (n 1), [11] discussing Exemption application re: Palmpoint Pty Ltd [2006] QADT 12, [18]-[20].

[32] QHRC submissions (n 11) 4.

[33] Ibid.

[34] Applicant’s submissions in reply filed 27 September 2023, [5]-[6].

[35] Affidavit of Daile Bree Berkman affirmed 21 September 2023, ‘JD-7’.

[36] Ibid.

[37] Ibid [10].

[38] Ibid [11].

[39] Applicant’s submissions in reply filed 27 September 2023, [8].

[40] Affidavit of Daile Bree Berkman affirmed 21 September 2023, ‘JD-8’.

[41] Ibid [12].

[42] Ibid [13].

[43] Ibid [14]-[15].

[44] Ibid [21].

[45] Ibid [22].

[46] Ibid [14].

[47] AD Act s 6(1).

[48] AD Act s 6(2).

[49] See, e.g., paragraphs [19]-[28] and [62]-[74] of these reasons for decision.

[50] Re: Children by Choice Inc. (n 1) [7] citing Downer (n 15) [16].

[51] Ibid [29].

Close

Editorial Notes

  • Published Case Name:

    Re: Children by Choice Association Incorporated

  • Shortened Case Name:

    Re: Children by Choice Association Incorporated

  • MNC:

    [2023] QIRC 293

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    10 Oct 2023

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
Castles v Secretary to the Department of Justice [2010] VSC 310
2 citations
Jump To
Cite 1 - [2010] VSC 310
Cite 2 - [2010] VSC 310
Downer EDI Mining [2013] QCATA 276
2 citations
Jump To
Cite 1 - [2013] QCATA 276
Cite 2 - [2013] QCATA 276
Exemption application re: Palmpoint Pty Ltd [2006] QADT 12
2 citations
Jump To
Cite 1 - [2006] QADT 12
Cite 2 - [2006] QADT 12
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Re Children by Choice Association Inc [2018] QIRC 153
2 citations
Jump To
Cite 1 - [2018] QIRC 153
Cite 2 - [2018] QIRC 153
Re: Cobham Aviation Services Australia Pty Ltd [2022] QIRC 326
2 citations
Jump To
Cite 1 - [2022] QIRC 326
Cite 2 - [2022] QIRC 326
Re: Ipswich City Council [2020] QIRC 194
2 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Re: Leidos Australia Pty Ltd [2021] QIRC 229
2 citations
Jump To
Cite 1 - [2021] QIRC 229
Cite 2 - [2021] QIRC 229
Re: Mackay Regional Council [2022] QIRC 64
2 citations
Jump To
Cite 1 - [2022] QIRC 64
Cite 2 - [2022] QIRC 64
Re: Protech Personnel Pty Ltd [2022] QIRC 29
2 citations
Jump To
Cite 1 - [2022] QIRC 29
Cite 2 - [2022] QIRC 29
Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440
2 citations
Jump To
Cite 1 - [2022] QIRC 440
Cite 2 - [2022] QIRC 440
Sundale Limited [2019] QCAT 83
2 citations
Jump To
Cite 1 - [2019] QCAT 83
Cite 2 - [2019] QCAT 83

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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