Re: Team Blake Pty Ltd[2024] QIRC 163

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   Team Blake Pty Ltd ('the Applicant') applied for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') on the basis of the attribute of sex ('exemption application') to allow the Applicant to recruit male support workers for Mr Blake Norrie, who has a severe to profound intellectual disability and is non-verbal.

2. [2]
   The Commission forwarded a copy of the exemption application and supporting material to the Queensland Human Rights Commission ('the QHRC'). The QHRC indicated that it supports an exemption in favour of the Applicant and stated that it did not intend to make any further submissions.

3. [3]
   The Commission issued a Directions Order providing the Applicant the opportunity to file written submissions and affidavit material in support of the exemption application.

4. [4]
   The question for determination is whether the Applicant should be granted an exemption pursuant to s 113AD of the AD Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').

The Applicant's exemption application

5. [5]
   In the exemption application, the Applicant submits that:

1. Their son, Mr Blake Norrie, has a severe to profound intellectual disability and is non‑verbal.

2. As he has aged, Mr Norrie has increasingly refused to follow the direction of female support workers, even very experienced female support workers. From 2018 to 2021, female support workers were provided by an external provider, but none were successful in gaining Mr Norrie's cooperation. This meant that Mr Norrie's care was compromised as he could not be encouraged to participate in activities, nor would he respond appropriately when safety messages were given.

3. Mr Norrie does not always respond appropriately to his mother, Kerri Fay Norrie, but he does always respond cooperatively with his father, Charles Alexander Norrie.

4. Mr Norrie is also unable to take care of his personal hygiene requirements, including toilet hygiene and showering. Because of his vulnerability as a non-verbal person, and for his dignity, male supports workers provide more appropriate personal attention for these activities.

5. The Applicant firmly believes that providing their son with male support workers is critical to his physical and emotional well-being and constitutes a reasonable accommodation of his unique needs.

6. Past experiences have demonstrated that interactions with female support workers can result in situations that endanger Mr Norrie's life. These incidents have raised grave concerns about his safety and overall well-being. One specific incident involved Mr Norrie almost walking off a railway platform as he did not respond to his female support worker asking him to move to safety. It was only when a male station attendant told him to stand behind the yellow line that he followed the instructions.

6. [6]
   A report from a psychologist, Dr Alastair Campbell, was provided in support of the Applicant's application, with Dr Campbell’s assessment consistent with the Applicant's statements.

Applicant Further Written Submissions

7. [7]
   The Applicant made the following further written submissions, in summary:

• The Applicant is formally requesting an exemption from the operation of sections 14, 124 and 127 of the AD Act on the basis of the attribute of sex. The exemption request is driven by the need to ensure the safety and well-being of Mr Blake Norrie.

• In accordance with s 27 of the AD Act, the Applicant requests an exemption to enable them to employ male support workers exclusively for Mr Norrie within the context of residential childcare services. Care for Mr Norrie is provided for in his home and in the community.

• The Applicant also requests an exemption in accordance with s 26 of the AD Act, as work is performed by a domestic service at Mr Norrie's home.

• The Applicant further requests an exemption in accordance with s 108 (Workplace Health and Safety) of the AD Act, as they believe that employing male only support workers is necessary to protect the health and safety of people at a place of work, both for Mr Norrie and for the support workers. Should Mr Norrie not follow the direction of a female support worker, that support worker may put herself in a risky situation to protect Mr Norrie.

• The Applicant recognises the importance of non-discrimination. However, they firmly believe that this exemption is a necessary and proportionate measure to protect Mr Norrie's health and safety.

• The Applicant is unwavering in their commitment to promoting equality and preventing discrimination to the fullest extent possible, while also prioritising the well-being and security of Mr Norrie.

QHRC Submissions

8. [8]
   By email dated 15 December 2023, the QHRC acknowledged receipt of the following documents provided by the QIRC under s 113 of the AD Act:

1. The initial application filed 24 November 2023;

2. The Directions Order issued on 29 November 2023;

3. The Applicant's submissions filed on 12 December 2023; and

4. The Report of Dr Campbell dated 17 September 2023.

9. [9]
   The email also contained the following submissions, in summary:

• The QHRC's records indicate that there are no complaints against the Applicant.

• The QHRC Commissioner supports an exemption in favour of the Applicant to enable them to advertise for and engage only male carers for Mr Norrie in his home. An exemption of this nature is consistent with the exemption in s 26 of the AD Act that enables a person to discriminate (other than on the basis of race) in aspects of work where the work is to provide domestic services in the person's home.

• The Applicant seeks an exemption from the operation of ss 14, 124 and 127 on the basis of the attribute of sex. The QHRC Commissioner considers that it is appropriate for an exemption to also include ss 15 and 15A of the AD Act, and that the exemption be framed in similar terms as s 26 of the AD Act.

• In considering an application for an exemption from the operation of the AD Act, the QIRC is acting in an administrative capacity. As such, the HR Act requires the QIRC to give proper consideration to the human rights in the HR Act, and to make a decision in a way that is compatible with those human rights. The relevant human right is the right to freedom from and against discrimination in s 15 of the HR Act.

• The circumstances of this case indicate that an exemption in the terms suggested would be compatible with human rights in accordance with the obligations under the HR Act.

• The QHRC Commissioner does not intend to make any further submissions in this matter.

Legislative framework

10. [10]
    Section 174B(b) of the AD Act confers the Commission with the power to grant exemptions in relation to work-related matters.

11. [11]
    Section 113(1) of the AD Act provides:

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

2. 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or

3. 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.

…

12. [12]
    The HR Act imposes obligations on the Commission with respect to the exercise of its discretion to grant an exemption.

13. [13]
    Section 48 of the HR Act 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.

2. 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.

3. 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.

4. This section does not affect the validity of—

1. an Act or provision of an Act that is not compatible with human rights; or

2. 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.

5. This section does not apply to a statutory provision the subject of an override declaration that is in force.

14. [14]
    Section 58 of the HR Act provides:

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

2. in making a decision, to fail to give proper consideration to a human right relevant to the decision.

2. 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.

3. 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.

4. This section does not apply to an act or decision of a private nature.

5. 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

2. considering whether the decision would be compatible with human rights.

6. 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

2. 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).

15. [15]
    'Public entity' is defined in s 9 of the HR Act, with s 9(4)(b) stating that a public entity does not include a court or tribunal, except when acting in an administrative capacity.

16. [16]
    In Re: Ipswich City Council,^[1] Deputy President Merrell confirmed that the Commission, when deciding an exemption application under s 113 of the AD Act, must comply with s 58 of the HR Act.

17. [17]
    Section 58 of the HR Act requires that the Commission must not 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.

18. [18]
    'Human rights' is defined under the HR Act to mean the rights stated in pt 2 divs 2 and 3. Section 15 contains the following rights -

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.

19. [19]
    Section 8 of the HR Act defines the meaning of the phrase 'compatible with human rights' as:

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

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

20. [20]
    The HR Act provides that human rights may be limited pursuant to s 13 of the HR Act:

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—

1. the nature of the human right;

2. 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;

3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

4. whether there are any less restrictive and reasonably available ways to achieve the purpose;

5. the importance of the purpose of the limitation;

6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

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

Consideration

21. [21]
    In the matter of Re: Protech Personnel Pty Ltd^[2] Vice-President O'Connor outlined matters to be considered by the Commission in determining whether to grant an exemption in accordance with s 113 of the AD Act –

Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered:

1. Whether the exemption is necessary;
2. Whether there are any 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 other persons or bodies other than the applicant support the application;
5. Whether it is reasonable and appropriate to grant the exemption; and
6. The effect of not granting the exemption.

22. [22]
    It has been determined that the purpose of s 113 of the AD Act is to allow persons the protection and security of the shield against complaints of unlawful discrimination in circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but when they are not inherently inconsistent with the AD Act.^[3]

23. [23]
    Prior to considering s 113, I note the operation of s 26 which provides that it is not unlawful to discriminate on grounds, other than race, in relation to work to be performed involving residential domestic services in a person’s home. The term ‘residential domestic services’ is not defined in the AD Act and it may be the case that the duties of a support worker go beyond that which could be considered ‘residential domestic services’. I note the Applicant’s submission that care is required for Mr Norrie both at home and ‘in the community’, along with an example provided of a female support worker attempting to direct Mr Norrie to safety whilst on a train platform. On the basis that the exemption afforded by s 26 may not be sufficiently broad to cover the entire role of a support worker, the exemption will be considered in accordance with s 113.

Is the exemption necessary?

24. [24]
    The proposed conduct is discriminatory and consequently an exemption will be necessary to render the conduct lawful.

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

25. [25]
    There is no material before the Commission indicating that there are any non‑discriminatory ways of achieving the objects or purposes for which the application is sought.

Is the exemption in the community interest?

26. [26]
    It is in the community interest to protect the safety and well-being of Mr Norrie. The safety of support workers who work with Mr Norrie, will also be protected by the exemption.

Are there any other persons or bodies other than the Applicant that support the application?

27. [27]
    The QHRC supports an exemption in favour of the Applicant to enable them to advertise for and engage only male carers for Mr Norrie in his home. The QHRC submits that an exemption of this nature is consistent with the exemption in s 26 of the AD Act that enables a person to discriminate in aspects of work, other than on the basis of race, where the work is to provide domestic services in the person’s home.

28. [28]
    There is no material before the Commission indicating that the granting of the exemption is opposed.

Whether it is reasonable and appropriate to grant the exemption

29. [29]
    On the material before the Commission, I am satisfied that it is reasonable and appropriate to grant the exemption.

The effect of not granting the exemption

30. [30]
    The failure to grant the exemption will result in the Applicant potentially contravening the AD Act should they proceed with a recruitment process excluding females. If the Applicant was not granted an exemption and consequently opened up the recruitment process to all, a female may be hired as the most meritorious applicant. In these circumstances, it is not only the dignity of Mr Norrie that must be considered, with the support worker required to manage all of his personal hygiene matters, but his safety and protection. The evidence is that Mr Norrie is non-compliant with directions, including safety directions, from female support workers, thereby putting at risk both the support worker and Mr Norrie should an exemption not be granted.^[4]

Application of the Human Rights Act

31. [31]
    Section 48 of the HR Act must also be considered when determining the application of s  113 of the AD Act.

32. [32]
    Section 48(1) of the HR 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."^[5]

33. [33]
    Deputy President Merrell determined in Re: Ipswich City Council^[6] that in exercising the discretion whether to grant the exemption, the Commission was acting in an administrative capacity and therefore must observe s 58 of the HR Act.

34. [34]
    Accordingly, s 113 of the AD Act, must be interpreted in a way that is most compatible with human rights to the extent possible consistent with its purpose.

What human rights may be affected by the granting of the exemption? – s 13(2)

35. [35]
    The human rights that may be affected by granting the exemption sought are s 15(3), that every person is equal before the law and is entitled to equal protection for the law without discrimination, and s 15(4), that every person has the right to equal and effective protection against discrimination.

36. [36]
    Accordingly, s 13 of the HR Act must be considered in order to determine if the limitation is reasonable and justifiable.

37. [37]
    The effect of the exemption sought by the Applicant would be that they would be permitted to restrict applicants for the role of Mr Norrie’s carer to males only, lawfully discriminating on this basis in pre-work and work areas, and to be exempt from the application of ss 124 and 127 of the AD Act.

The nature of the human right – s 13(2)(a) of the HR Act

38. [38]
    The human rights engaged in this matter are the rights to equal protection of the law without discrimination and the right to equal and effective protection from discrimination.

39. [39]
    In Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd^[7] (‘Re: Jet Aviation Australia’), Deputy President Hartigan considered these human rights, stating -

In previous decisions, I have considered the equivalent right in the Victorian Charter, which was considered in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) ('Lifestyle Communities') as follows:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, ie treatment devoid of objective justification, in the application and administration of the law.

The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

40. [40]
    Deputy President Hartigan proceeded to note in Re: Jet Aviation Australia, that in Lifestyle Communities Ltd (No 3) it was considered that a common feature of exemption applications is that there is no particular 'victim' of the intended discrimination and that it was recognised that such applications are usually undefended and not opposed by the relevant human rights and equal opportunity commission.^[8] That is also the case in this application.

The nature of the purpose of the limitation – s 13(2)(b) of the HR Act

41. [41]
    In considering whether the limitation on human rights is reasonable and justifiable, s 13(2)(b) of the HR Act provides that 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 is a matter that must be considered.

42. [42]
    The purpose of the limitation is to allow Mr Norrie to be supported by a male support worker and the means by which this purpose is to be achieved is to only employ male applicants for the role. As a general proposition, limiting employment to only members of a particular sex is undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom.

43. [43]
    This limitation must be weighted against the purpose of the proposed exemption, which is to allow Mr Norrie to be supported safely and to recognise his human dignity, along with ensuring the safety of his support worker.

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose – s 13(2)(c) of the HR Act

44. [44]
    I am satisfied that the limitation sought will help achieve the purpose of protecting the safety and well-being of Mr Norrie. The limitation resulting from the proposed exemption provides a reasonable means by which the purpose will be achieved.

Whether there are any less restrictive and reasonably available ways to achieve the purpose – s 13(2)(d) of the HR Act

45. [45]
    On the material before the Commission, there does not appear to be a less restrictive and reasonably available way to achieve the purpose of Mr Norrie being cared for in a safe manner.

The importance of the purpose of the limitation, the importance of preserving the human rights and finding a balance between the two – s 13(2)(e)-(g) of the HR Act

46. [46]
    In Lifestyle Communities Ltd (No 3)^[9] the Tribunal held that the purpose of the right to recognition and equality before the law, specifically the right to equal protection of the law without discrimination and the right to equal and effective protection against discrimination, is to protect the values of substantive equality, universal humanity, autonomy and worth of the individual, and their protection for personal and social development.

47. [47]
    The purpose of the exemption is to ensure that a male is employed as the support worker for Mr Norrie. In the event the exemption is not granted, the Applicant may be compelled to hire a female in order to ensure compliance with the AD Act. I am satisfied that the limitation in these circumstances is of sufficient importance that it will assist in the purpose of ensuring the safety and well-being of Mr Norrie. The human rights affected are limited in scope and, on balance, the limitation is proportionate to achieving the stated purpose.

48. [48]
    I am satisfied that the limitation on human rights is reasonable and justifiable.

Term of the exemption sought

49. [49]
    Section 113(6)(c) of the AD Act provides that an exemption is to be granted for a specified period of not more than 5 years.

50. [50]
    In the absence of any information indicating a lesser term is appropriate, the exemption will be granted for a period of 5 years from the date of the order.

Conclusion

51. [51]
    For the foregoing reasons, I grant the exemption sought by Mr Norrie.

Order

52. [52]
    I make the following Orders:

1. The Applicant is exempt from the operation of s 14, s 15, s 15A, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) 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 a support worker for Mr Blake Norrie.

3. The exemption shall apply for a period of five years from the date of these orders.