Re: Rights in Action Inc.[2024] QIRC 132

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

 Introduction

1. [1]
   By application filed 12 March 2024, Rights in Action Inc. seeks an exemption, pursuant to s 113(1) of the Anti-Discrimination Act 1991 ('Anti-Discrimination Act'), from the operation of certain provisions of that Act.
2. [2]
   It seeks the exemption for the purposes of being able to advertise to employ only a young person, aged 18 to 25, who has a diagnosed permanent disability or chronic, episodic mental illness, for a Youth Co-Facilitator role in a young leaders pilot program. The determination of the application requires a consideration of the Anti-Discrimination Act and the Human Rights Act 2019 ('Human Rights Act'). The application included a short statement made on behalf of the Applicant, and the grounds relied upon.
3. [3]
   Before deciding an application, the Tribunal^[1] must provide a copy of the application and material filed in support of the application to the Human Rights Commissioner and have regard to any submission made by the Human Rights Commissioner on the application, including any submission on the process for considering the application.
4. [4]
   On 13 March 2024 the Commission issued directions inviting the Applicant to file written submissions and any affidavit material by 5 April 2024. On 9 April 2024, as no such material had been received, the Applicant was invited to indicate, by 11 April 2024, whether it wished to take up the opportunity to file supporting material. It did not do so.
5. [5]
   Accordingly, on 12 April 2024, I caused a copy of the application to be forwarded to the Queensland Human Rights Commission. No supporting material was provided, as none had been received.
6. [6]
   By correspondence dated 26 April 2024 the QHRC advised:

The QHRC does not intend to make any submissions on the Application, particularly in light of the limited amount of detail provided within it.

7. [7]
   The QHRC also advised that according to its records there had been no complaints against the Applicant.
8. [8]
   The matter was heard on 15 May 2024. In addition to the Applicant, the QHRC appeared.
9. [9]
   The question for my determination is whether, pursuant to s 113(1) of the Act, I should grant the exemption sought.
10. [10]
    For the reasons that follow, the exemption sought by the Applicant is granted.

 Application for exemption

11. [11]
    In its application the Applicant says that:

    1. It is a small, not-for-profit, charitable organisation registered with the Australian Charities and Not-For­Profits Commission. It has been operating since 2001.
    2. It is 100% dependent on philanthropic donations and grants from Queensland and/or federal government agencies to deliver independent non-legal, generalist advocacy for people with disability or mental illness.
    3. Its advocacy for people with disability or mental illness is for the purpose of upholding their human rights, implementing safeguards and taking action, including reporting to statutory authorities on instances of reported or alleged abuse, neglect, exploitation, harm or discrimination.
    4. Its workforce comprises of fewer than "20 employees who are paid and unpaid as volunteers." It is not clear from its face what is meant by this but the organisation's annual information statement filed with the ACNC shows eight paid employees and nine volunteers.
    5. It currently has a funded service agreement with Children and Young People with Disability Australia (CYDA) ABN 42 140 529 273, a peak advocacy organisation for young people, to deliver the national Rural Young Leaders Program (RYLP) in rural, remote and regional locations. That pilot will provide engagement, support for well-being, connection, and skill-building for participants.^[2]
    6. CYDA has recommended that the Applicant employ a part-time co­facilitator in the RYLP pilot in Cairns.
    7. The co-facilitator's role would be to engage with and mentor the young participants in the RYLP pilot. The role will also support the facilitator, who, at the time of the hearing, had been in that position for about three months.^[3]
12. [12]
    The Applicant relies on the following grounds for its application:

    1. a person will be eligible to apply for the Youth Co-Facilitator role if they meet criteria and they:
       3. (i)
          are a young person, aged between 18 - 25; and
       3. (ii)
          have a diagnosed, permanent disability or chronic, episodic mental illness (and thereby have lived experience of inaccessibility or discrimination due to disability);
       3. (iii)
          have a strong desire to empower other young people through advocacy, peer mentoring and facilitating learners to set goals and progress their leadership capabilities; and
       3. (iv)
          have an interest or experience in working with young people; and
       3. (v)
          have the ability to successfully obtain a working with children Blue Card and/or QLD Disability Worker Screening Yellow Card; and
       3. (vi)
          can produce or evidence a current Australian Federal Police clearance dated less than 2 years, which is said to be "as per regulatory compliance requirements to work with children, youth and adults with a disability or mental illness in Queensland."
    2. The Applicant seeks an exemption under the Anti-Discrimination Act based on the characteristics of the Youth Co-Facilitator position, its job description and CYDA recommendations as the legitimate proprietor of the targeted framework, service delivery model and copyrighted owner of the Rural Young Leaders Program.
13. [13]
    At hearing the Applicant confirmed that it seeks an exemption pursuant to s 113 of the Anti-Discrimination Act. The provisions of the Act from which exemption is sought is Chapter 2, Part 4, Division 2, Sub-division 1, namely 'Prohibitions in work and work-related areas' which relevantly encompasses sections 14 and 15 of the Anti-Discrimination Act. It also seeks to be exempt from the operation of s 124 of the Act ('Unnecessary information') and s 127 of the Act ('Discriminatory advertisements').^[4] It seeks to be exempted in relation to discrimination of the basis of age and impairment.

 The relevant legislative provisions

The Anti-Discrimination Act

14. [14]
    The Commission has the power, pursuant to s 174B(b) of the Anti-Discrimination Act, to grant exemptions in relation to work related matters.
15. [15]
    Section 113(1) of the Anti-Discrimination Act relevantly provides that, on application by a person, the Tribunal may grant an exemption to the person from the operation of a specified provision of the Act.
16. [16]
    The application initially sought an exemption for a period of two years, but given that the program is a pilot, the exemption period now sought is five years, the maximum, to accommodate any further rollout following the pilot's conclusion.
17. [17]
    Section 7(f) of the Anti-Discrimination Act prohibits discrimination on the basis of the attribute of age. Clearly the Applicant wishes to be able to discriminate against people older than 25. Section 7(h) of the Anti-Discrimination Act prohibits discrimination on the basis of the attribute of impairment. Lack of impairment is not a ground under the Act. However, as the Applicant wishes to open the position to people with only some types of impairment, it is conceivable (though not necessarily likely) that an application could be brought by someone with a different type of impairment than those specified in the application. The QHRC submitted that excluding people without impairment would not be a contravention of the Act but discriminating between types of impairment would require an exemption.^[5]
18. [18]
    Section 14 of the Anti-Discrimination Act prohibits discrimination in the area of "pre-work" including by prohibiting discrimination in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered worked.
19. [19]
    Section 15 of the Anti-Discrimination Act prohibits discrimination in the work area including by prohibiting discrimination in varying terms of work, in dismissing a worker, by denying a worker's access to opportunities at work, and the general unfavourable treatment of a worker in anyway in connection with work.
20. [20]
    Section 124 of the Anti-Discrimination Act prohibits the request of unnecessary information on which unlawful discrimination might be based.
21. [21]
    Section 127 of the Anti-Discrimination Act prohibits the publication and display of advertisements which in any way contravene the Anti-Discrimination Act.
22. [22]
    The exercise of the discretion conferred by s 113 of the Anti-Discrimination Act on the Tribunal is broad and unfettered.^[6] However, a number of considerations have been identified as matters that may assist the Tribunal in the exercise of its discretion.^[7] These considerations include:

    1. whether the exemption is necessary;
    2. whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
    3. whether the exemption is in the community interest;
    4. whether any person or body, other than the applicant, supports the application;
    5. whether it is reasonable and appropriate to grant the exemption; and
    6. the effect of not granting the exemption.
23. [23]
    I will address these considerations further below following my consideration of the Human Rights Act.

The Human Rights Act

24. [24]
    The Tribunal, in addition to the matters referred to above, must also consider any relevant matters arising in accordance with the Human Rights Act.
25. [25]
    Section 3 of the Human Rights Act provides that the main objects of the Human Rights Act are to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.
26. [26]
    The ways in which the Human Rights Act provides that the main objects are to be achieved include, inter alia, by:

    1. requiring public entities to act and make decisions in a way that is compatible with human rights; and
    2. requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose in a way compatible with human rights.

Decision-making

27. [27]
    It has been accepted^[8] that a decision made pursuant to s 113 of the Anti-Discrimination Act involves the Tribunal acting in an administrative capacity. Consequently, in determining the application, the Tribunal must observe the relevant provisions of s 58 of the Human Rights Act.^[9]
28. [28]
    Section 58(1) of the Human Rights Act provides that is unlawful for a public entity to:

    1. make a decision in a way that is not compatible with human rights; or
    2. in making a decision, fail to give proper consideration to a human right relevant to the decision.

Statutory Interpretation

29. [29]
    By operation of s 5(2)(a), the Human Rights Act applies to a court or tribunal, to the extent the court or tribunal has functions under Part 2 and Part 3, Division 3 of that Act.
30. [30]
    Section 48 of the Human Rights Act is in Part 3, Division 3. By operation of that section, s 113 of the Anti-Discrimination Act must be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with its purpose.

 Submissions

31. [31]
    At hearing the Commission had the benefit of submissions from both the Applicant and the QHRC. At the conclusion of the hearing neither the Applicant nor the QHRC wanted leave to make any further submissions. The QHRC confirmed at the conclusion of the hearing that it did not oppose the application.

 Application of the Human Rights Act to this matter

32. [32]
    Because s 58 of the Human Rights Act applies, the Commission must not act to make a decision in a way that is not compatible with human rights and, in making a decision, the Commission must not fail to give proper consideration to a human right relevant to the decision.^[10] In giving proper consideration to a human right in making a decision, the Commission must identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights.^[11]
33. [33]
    Section 7 of the Human Rights Act defines human rights to mean "…the rights stated in Part 2, Divisions 2 and 3".
34. [34]
    Part 2, Division 2 of the Human Rights Act deals with civil and political rights. Section 15, which is in Division 2, provides for recognition and equality before the law in the following terms:

15 Recognition and equality before the law

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy the person’s human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination.

(4) Every person has the right to equal and effective protection against discrimination.

(5) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

35. [35]
    An act, decision or statutory provision is compatible with human rights if it  limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.^[12] The QHRC submitted that the proposed limitation on rights, the subject of this application, would be subject to the proportionality test in s 13 of the Human Rights Act, and that I would likely be in a position to find it reasonable and justified.^[13]
36. [36]
    Section 13 of the Human Rights 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.

(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

(a) the nature of the human right;

(b) 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;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g) the balance between the matters mentioned in paragraphs (e) and (f).

37. [37]
    In this case the proposed limit on equality before the law, and equal protection of the law without discrimination, is modest and narrow. It relates to the co-facilitator position. It supports protection against discrimination through the assistance it will provide to the pilot's clients. It is a reasonable limit that is justified in a free and democratic society based on human dignity, equality and freedom.
38. [38]
    The right to equality before the law is underpinned by a bundle of interdependent and interrelated rights. It is clear from the references to discrimination, including protection against discrimination, in s 15, the legislature sought to provide for a right not only to formal equality but also to substantive equality before the law.
39. [39]
    If the exemption is granted, some people's right to be considered equally for the co-facilitator role will be limited, but the limitation is consistent with the promotion of human dignity, equality, and freedom, including freedom from discrimination.
40. [40]
    The limitation on equal consideration for this role is connected with and helps promote the purpose of having someone with lived experience co-facilitating this program.
41. [41]
    There are not any less restrictive and reasonably available ways to achieve the same purpose of having a person with lived experience co-facilitate this program.
42. [42]
    The restriction of eligibility for the role strikes a balance between preserving the human rights of those not eligible and achieving the purpose of having someone with lived experience co-facilitate this program.
43. [43]
    The Queensland Human Rights Commission submits that granting this exemption would not be a measure for s 15(5) given it is directed to creating a benefit for the program's clients – in having a co-facilitator with lived experience – rather than for the co-facilitator themselves.^[14] With respect, I agree. While the appointee to the co-facilitator role derives benefit from the restriction, in that they are part of a smaller recruitment pool, nonetheless the purpose of the exemption is directed towards creating a benefit for the program's clients in the form of co-facilitation by someone who has a greater understanding of being a young person with an impairment of the type contemplated.
44. [44]
    Having regard to the foregoing I consider that granting the exemption sought would be compatible with human rights, including the program's clients' rights to equal and effective protection against discrimination.

 The exemption power, section 113 of the Anti-Discrimination Act

45. [45]
    As indicated above, s 48 of the Human Rights Act must be considered when considering the application of s 113 of the Anti-Discrimination Act. Sub-section 48(1) of the Human Rights Act does not authorise an interpretation of statutory provisions which is inconsistent with their purpose, rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is "compatible with human rights".^[15]
46. [46]
    Section 113 of the Anti-Discrimination Act confers a broad and unfettered discretion upon the Commission to grant an exemption of specified provisions of the Anti-Discrimination Act. It has been held that the purpose of s 113 of the Anti-Discrimination Act is to allow persons the protection and security of the shield against complaints of unlawful discrimination and circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but when they are not inherently inconsistent with the Anti-Discrimination Act.
47. [47]
    Advertising, recruitment, selection, appointment and employment that discriminates on the ground of age and on the ground of type of impairment would arguably contravene the Anti-Discrimination Act in the absence of an exemption.
48. [48]
    The application refers to certain provisions of the Anti-Discrimination Act that provide exemptions that apply without the need for orders under s 113. Those provisions include s 25, s 104, and s 105. It may be that the co-facilitator role is, for example, a welfare measure pursuant to s 104. I do not need to conclusively decide whether any of these exemptions apply because I consider that on the authorities^[16] an applicant can gain a s 113 exemption regardless. The Queensland Human Rights Commission made a submission to similar effect.^[17] With respect, I agree. The applicant seeks the exemption to remove any unnecessary uncertainty or risk.^[18] It is obviously preferable for the Applicant, but also for any future appointee to the role, for the Applicant to have certainty, in advance of recruiting for and making the appointment, as to whether doing so would contravene applicable protections.
49. [49]
    There are no apparent non-discriminatory ways for achieving the object of young clients with disabilities having access to a co-facilitator with a similar lived experience to theirs.
50. [50]
    The Applicant submits the program will provide community benefit including raising awareness of the rights of people with disabilities in all aspects of life including social and economic participation.^[19] The co-facilitator will assist in delivering the program and in realising the benefits. In my view this program is in the community interest and so is ensuring it has a co-facilitator who has lived experience as a young person with an impairment of the type contemplated.
51. [51]
    The Applicant submitted that CYDA supported the application. Though there was nothing provided from CYDA directly, I infer from the fact that CYDA is the funder and recommended this course of action that CYDA supports the application.
52. [52]
    A failure to grant this exemption would leave the Applicant in the position of either not explicitly recruiting for a young person with the relevant lived experience, or being required to take on greater risk in order to do so. The Applicant submitted the failure to grant this application would deplete its capacity to deliver the program considerably.^[20] Failing to grant the exemption would reduce the likely efficacy of this program and result in a reduction in the benefit obtained from it by the program's clients and the broader community.
53. [53]
    In all the circumstances it is reasonable and appropriate to grant the exemption.

 Term of the exemption sought

54. [54]
    Section 113(6)(c) of the Anti-Discrimination Act provides that an exemption is to be granted for a specified period of not more than 5 years. Having regard to the material before me, I will grant the exemption for a period of 5 years from the date of the order.

 Conclusion

55. [55]
    For the forgoing reasons, I grant the exemption sought by the Applicant.

 Order

56. [56]
    I make the following orders:

1. Rights in Action Inc. is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attributes in s 7(f) and s 7(h) of the Anti-Discrimination Act 1991.

2. The exemption applies only in respect of actions or omissions in relation to the advertising, recruitment, selection, appointment and employment of or to the co-facilitator position for the RYLP pilot based in Cairns.

3. The exemption shall apply to Rights in Action Inc. for a period of five years from the date of these orders.