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Re: Sera's Women's Shelter Incorporated[2024] QIRC 199

Re: Sera's Women's Shelter Incorporated[2024] QIRC 199

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Sera’s Women’s Shelter Incorporated [2024] QIRC 199

PARTIES:

Sera’s Women’s Shelter Incorporated

(Applicant)

CASE NO:

AD/2023/84

PROCEEDING:

Application for exemption

DELIVERED ON:

13 August 2024

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

The application for exemption is declined

CATCHWORDS:

EQUAL OPPORTUNITY AND DISCRIMINATION – EXEMPTION – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – where application did not specify what the purported exemption applied to – where application clarified – where amended application seeks exemption with respect to attributes of sex and gender identity – problematic application of exemption – exemption unnecessary – application refused

HUMAN RIGHTS – application for exemption from provisions of the Anti-Discrimination Act 1991 (Qld) – application refused – nature of application considered – decision does not alter or impact existing human rights – decision not incompatible with human rights – alternative conclusion considered – impact on human rights less than negligible – domestic violence statistics – domestic violence crisis in society – importance of the purpose of the limitations balanced against limitation – limitation reasonable and demonstrably justified

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 7, s 13, s 14, s 15, s 24, s 25, s 104, s 108, s 113, s 124

Human Rights Act 2019 (Qld) s 3, s 5, s 8, s 13, s 15, s 48, s 58

Industrial Relations Act 2016 (Qld) s 447

Work Health and Safety Act 2011 (Qld) s 5, s 19

CASES:

Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52

Downer EDI Mining [2013] QCAT 99

Re: Ipswich City Council [2020] QIRC 194

Re: Kalwun Development Corporation Limited [2019] QIRC 141

Re: Protech Personnel Pty Ltd [2019] QIRC 175

Re The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593

Re the Women’s Legal Service Inc [2019] QIRC 060

Tafao v State of Queensland & Ors [2018] QCAT 409

Women’s Legal Service Inc [2014] QCAT 315

Reasons for Decision

Background

  1. [1]
    On 9 May 2023, Sera’s Women’s Shelter Incorporated (‘the Applicant’) filed an application in the Queensland Civil and Administrative Tribunal (‘QCAT’) for an exemption from the operation of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) (‘the first application’).[1]
  1. [2]
    The exemption sought was described in the first application as follows:

“[The Applicant] is seeking exemption in both the recruitment and employment of males. Our crisis service is for the support and supported accommodation for women and children escaping domestic violence. It would be inappropriate and traumatic for our women to have males working in our safe house accommodation.”

  1. [3]
    The first application did not specify which parts of the AD Act were to be the subject of the proposed exemption. The first application did not further particularise the basis for the exemption nor provide any evidence or cite any examples to support it.
  1. [4]
    On 9 August 2023, pursuant to s 174A of the AD Act, QCAT determined that it lacked jurisdiction to deal with the first application on the basis that it concerned work-related matters and therefore must be determined by the Queensland Industrial Relations Commission (‘the Commission’).
  1. [5]
    By s 52(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the application was transferred to the Commission. The application was accepted by the Industrial Registrar on 18 August 2023 and became matter AD/2023/84.
  1. [6]
    On 28 August 2023 the application was allocated to me. Having regard to the dearth of detail contained in the application, a Direction was issued to the applicant requiring them to file submissions in support of the application. Submissions were filed on 4 September 2023.
  1. [7]
    The submissions largely provided background information into the history and work of the Applicant which, while relevant, did not assist with respect to the parts of the AD Act proposed to be the subject of the exemption. The final paragraph, under the heading ‘conclusion’, read as follows:

In conclusion, we are a service for women and serviced by women. Seras believe we are exempt from accepting applications, short-listing, interviewing or employing males. That our recruitment process is legally able to advertise for workers as women on under Section 25 Genuine occupational requirements of the Anti-discrimination Act 1991. 

  1. [8]
    To add to the opaque nature of the application, the ‘conclusion’ in the submissions appeared to end with a statement about the purported effect of s 25 of the AD Act on the Applicant. While it is not clear from the submission, it appears the Applicant was either seeking the exemption pursuant to s 25 of the AD Act (which is not the proper intended use of that statutory exemption) or stating they were already exempt and therefore their request for exemption ought to be granted.

Preliminary observations about exemption applications

  1. [9]
    It must be observed that an application for exemption from the operation of the AD Act is not a trivial matter. In Re the Women’s Legal Service Inc Vice President O'Connor said:[2]

The granting of an exemption is not a matter of routine, as stated by Member Paratz:

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

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

(Emphasis added)

  1. [10]
    To be granted permission to engage in otherwise prohibited discriminatory conduct requires proper and compelling justification. In dealing with such an application the Commission must (where appropriate) perform its functions in a way that avoids technicalities, but this should not be to the extent that the Commission is required to guess what an applicant is seeking or why they seek it.[3]
  1. [11]
    When confronted with the inadequacies of the first application, I pondered the wisdom of listing the matter for mention and raising them with the Applicant. But given the first application was still ex parte, I did not consider it appropriate for the Commission to descend into a line of enquiry with the Applicant where, in discussing or identifying deficiencies in the application, the Commission might inadvertently involve itself in the formulation of the application in ways otherwise not previously contemplated or intended by the Applicant.

Notice to interested stakeholders

  1. [12]
    Rather than directly address the inadequacies of the first application with the Applicant, I determined to issue directions for the Applicant to serve their material on appropriate interested parties. It was anticipated that the involvement of other stakeholders might prompt a broader discussion about the lack of particulars accompanying the application and inter alia prompt the Applicant to address the deficiencies.
  1. [13]
    Consequently, on 6 September 2023 I issued directions ordering the Applicant to provide a copy of the first application to both the Human Rights Commissioner, Queensland Human Rights Commission (‘QHRC’) and the Queensland Council of Unions (‘QCU’). Each of those entities were invited to provide submissions in respect of the first application.
  1. [14]
    By email correspondence dated 11 September 2023, the QHRC indicated that the Human Rights Commissioner did not intend to make any submissions in respect of the first application.
  1. [15]
    The QCU filed submissions in respect of the application on 9 October 2023. The QCU did not take issue with the lack of detail contained in the application.  In short, the position taken by the QCU was that it supported the applicant’s desire to ensure a ‘women only’ workplace but contended that adequate protections were already available pursuant to s 25 of the AD Act.
  1. [16]
    The Applicant was afforded the opportunity to respond to the submissions of the QCU but elected not to do so.
  1. [17]
    Following receipt of the responses from the QCU and the QHRC it was apparent that the total lack of particulars to the first application had not produced any objections. Consequently, the matter was then listed for mention on 30 January 2024 to raise the deficiencies, but now in the presence of the QCU and the QHRC who were also directed to attend and could, if necessary, take the role of the contradictor.
  1. [18]
    At the mention it was explained to the Applicant that there was a need for them to specify which parts of the AD Act they sought to be exempted from. Given the expressed intent of the first application was for the Applicant to be able to recruit and hire only women, it was quickly established the exemption sought in the application was in respect to the attribute ‘sex’ as prescribed by s 7(a) of the AD Act.
  1. [19]
    Further, noting the basis for the first application i.e. “It would be inappropriate and traumatic for our women to have males working in our safe house accommodation”, I invited the Applicant to consider the proposition that the concept of ‘women’ and ‘men’ was not limited to biological factors that might otherwise be covered by the attribute of ‘sex’.
  1. [20]
    It was at this point that the Applicant informed the Commission they sought to also be exempted from s 7(m) of the AD Act in respect of the prescribed attribute of ‘gender identity’ and s 124(1) of the AD Act dealing with request for unnecessary information.
  1. [21]
    Consequently, the Applicant was given leave to amend their application to seek exemption from Ss 7(a), 7(m) and s 124(1) of the AD Act.[4]
  1. [22]
    It was also at this point that the QHRC representative indicated to the Commission that, contrary to their earlier stance, they (unsurprisingly) now wished to be heard on the amended application.  The QHRC also helpfully informed the Commission that the definition of ‘gender identity’ was about to be amended with effect from 29 April 2024.
  1. [23]
    Consequently, new directions were issued for the filing of further submissions from the Applicant, the QCU and the QHRC.
  1. [24]
    Subsequent to the mention on 30 January 2024, the QHRC emailed the parties and the Commission setting out the salient pending amendments to the AD Act. That email included a reference to a new prescribed attribute of ‘sex characteristics’ and its definition, that was scheduled to (and did) take effect from 29 April 2024.
  1. [25]
    The proposed (and now enacted) definition of the prescribed attribute of ‘sex characteristics’ prohibits discrimination on the basis of:[5]

…a person’s physical features and development related to the persons sex, and includes-

  1. genitalia, gonads and other sexual and reproductive parts of the person’s anatomy; and
  1. the persons chromosomes, genes and hormones that are related to the person’s sex; and
  1. the persons secondary physical features emerging as a result of puberty.

(Emphasis added)

  1. [26]
    Upon reflection on the matters contained in the email from the QHRC, in particular the looming addition of a new and potentially relevant attribute, I became concerned that the Applicant’s proposed amendments to the application may very quickly be superseded by the terms of the amended AD Act upon its commencement in April 2024. There would be little point in utilising the resources of the Commission to consider an exemption that might fail to fully serve the purpose sought to be achieved by the Applicant. Consequently, the matter was listed again for mention on 6 February 2024. 
  1. [27]
    At the mention on 6 February 2024, the Applicant was informed of the Commission’s view about the matters identified in the QHRC’s email of 30 January 2024. The Applicant was effectively offered an opportunity to ‘reset’ their application and invited to take a more detailed and formal approach given that their somewhat simplistic application originally filed now appeared beset with complexities not previously contemplated. Further, noting that the Applicant was a not-for-profit organisation and without representation, I encouraged them to obtain assistance with the amendments to their application and submissions.
  1. [28]
    Directions were issued on 6 February 2024 for the filing of an amended application and submissions from the QCU and the QHRC.
  1. [29]
    On 9 February 2024, the Applicant filed an amended application with submissions (‘the amended application’). Relevantly, the amended application formally sought exemption pursuant to s 113 of the AD Act with respect to the attributes prescribed at Ss 7(a) and (m), and the application of Ss 14, 15, 124, and 127 of the AD Act.
  1. [30]
    Notably, despite notice being given in the email from the QHRC on 30 January 2024, the amended application made no reference to the pending amendment to the AD Act or the new attribute of ‘sex characteristics’ set to be introduced in April 2024. 
  1. [31]
    On 14 February 2024, in response to the amended application, the QHRC emailed the parties and the Commission with a submission that, in light of the amended application, the Applicant ought to be required to serve copies of its amended application on:
  • Women’s Legal Service Qld;
  • LGBTI Legal Service;
  • Australian Transgender Support Association of Queensland;
  • Equity Australia; and
  • LGBTIQ+ Health Australia.
  1. [32]
    Despite the inconvenient timing, this proposal from the QHRC helpfully alerted the Commission to other stakeholders who ought to have the opportunity to make submissions on the amended application. A further mention was therefore held on 28 February 2024 to inform the parties of the Commission’s intention to issue directions that would include the entities named above in the process.
  1. [33]
    In anticipation of additional stakeholders filing submissions, the existing directions were vacated, and the Applicant was directed to serve copies of the amended application on the QCU, the QHRC, and the five entities named above. They were each given six weeks to file and serve any submissions.
  1. [34]
    The QHRC filed submissions on 18 April 2024. The QCU filed submissions on 19 April 2024. None of the other entities named above filed submissions.
  1. [35]
    The Applicant did not file any submissions in reply.    

Relevant legislative provisions

The AD Act

  1. [36]
    Section 7 of the AD Act (as at 29 April 2024) prohibits discrimination on the basis of sex, gender identity, and ‘sex characteristics’.[6]
  1. [37]
    Section 13 of the AD Act provides:

13 Explanatory provisions (prohibitions)

  1. A person must not discriminate in the work or work-related area if a prohibition in sections 14 to 23 applies.
  1. This subdivision does not apply to discrimination in connection with superannuation or insurance.
  1. Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75.
  1. [38]
    Section 14 of the AD Act relevantly provides:

14 Discrimination in the pre-work area

A person must not discriminate –

  1. in the arrangements made for deciding who should be offered work; or
  2. in deciding who should be offered work; or
  3. in the terms of work that is offered, including, for example, term about when the work will end because of a person’s age; or
  4. in failing to offer work; or
  5. by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  6. in developing the scope or range of such a program.
  1. [39]
    Section 15 of the AD Act provides:

15     Discrimination in work area

  1. A person must not discriminate—
  1. in any variation of the terms of work; or
  2. in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  3. in dismissing a worker; or
  4. by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  5. in developing the scope or range of such a program; or
  6. by treating a worker unfavourably in any way in connection with work.
  1. In this section—

"dismissing" includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.

  1. [40]
    Section 113 of the AD Act relevantly 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.

Note –

See also section 174C in relation to the tribunal’s powers for deciding the application.

…

  1. An exemption –
  1. may be granted subject to such terms as the tribunal provides; and
  2. may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and
  3. is to be granted for a specified period of not more than 5 years.
  1. An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted.
  1. [41]
    Section 124(1) of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based.

The Human Rights Act

  1. [42]
    In Re: Ipswich City Council,[7] Deputy President Merrell confirmed that the Commission is acting in an administrative capacity when deciding an exemption under s 113 of the AD Act. His Honour further concluded that the combined effect of ss 5(2)(a) and 48 of the Human Rights Act 2019 (Qld) (‘HR Act’) is that the Commission, when interpreting s 113 of the AD Act, must comply with s 58 of the HR Act.[8]
  1. [43]
    The primary objectives of the HR Act are outlined at s 3:

3 Main objects of the Act

The main objects of this Act are –

  1. to protect and promote human rights; and
  2. to help build a culture in the Queensland public sector that respects and promotes human rights; and
  3. to help promote a dialogue about the nature, meaning and scope of human rights.
  1. [44]
    Section 5 of the HR Act states:

5 Act binds all persons

  1. This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
  1. This Act applies to –
  1. a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and
  2. the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and
  3. a public entity, to the extent the public entity has functions under part 3, division 4.
  1. [45]
    The effect of s 5(2)(a) of the HR Act is that it applies to a court or tribunal, to the extent the court or tribunal has functions under pts. 2 and 3, div. 3 of the HR Act.
  1. [46]
    Section 8 of the HR Act provides that an act, decision or statutory provision is compatible with human rights if the act decision or provision does not limit a human right, or limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
  1. [47]
    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.
  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
  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.
  1. This section does not apply to a statutory provision the subject of an override declaration that is in force.
  1. [48]
    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.

…

  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
  2. 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
  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).
  1. [49]
    It follows that when exercising the discretion to either grant or deny the amended application, the Commission must interpret s 113 of the AD Act in a way that is most compatible with human rights, to the extent possible, consistent with its purpose. Further, before making any decision the Commission must give proper consideration to a human right relevant to the decision.[9]

Submissions of the parties

The Applicant’s submissions

  1. [50]
    The Applicant is an organisation that provides safe shelter for women and children affected by domestic violence. The objects for which the Applicant is established are:
  • the provision of safe, secure, appropriate accommodation for all women, and women with children escaping domestic violence;
  • the provision of support and resources to empower women to move towards independent living;
  • to link with other women’s services to provide education and awareness programs and resources to the community; and
  • the provision of limited transitional support to women and their children leaving the shelter provided by the Applicant.
  1. [51]
    Broadly, the Applicant submits it would not be able to achieve its objects if it were to employ males. The Applicant therefore seeks exemption from the operation of certain provisions of the AD Act to guarantee that it can provide services to women and children who have experienced domestic violence at the hands of a male, without exposing them to emotional triggers and the risk of re-traumatisation by encountering men at the premises.
  1. [52]
    More specifically, the Applicant submits that it would be uncomfortable and traumatic for women utilising the Applicant’s services if a male staff member were to offer practical support, including the provision of food, cash, mobile phones and clothing. Women would also be reluctant to seek counsel and support from a male staff member in respect of sexual abuse they may have suffered.
  1. [53]
    The Applicant also submits that it works within a feminist framework that values integrity, dignity, respect, accountability and empowerment. It is the Applicant’s submission that a women only workforce can facilitate the abovementioned values, given the role of men within a patriarchal society.
  1. [54]
    The Applicant closes their submissions by contending that they are in fact able to impose genuine occupational requirements for a position (such as advertising for workers as women only) by virtue of s 25 of the AD Act.

Queensland Council of Unions’ submissions

  1. [55]
    In summary, the QCU supports the exclusive hire of women by the Applicant but submits that the Applicant has valid defences under the AD Act and a general exemption is therefore not necessary.
  1. [56]
    QCU submits that, given the effect of s 25 of the AD Act, the Applicant is permitted to impose genuine occupational requirements on a position and an exemption is therefore unnecessary.
  1. [57]
    With reference to s 104 of the AD Act, QCU submits that the provision of special accommodation to women who have been victims of domestic violences is one of the examples specifically given in the AD Act as to how s 104 can be applied lawfully.
  1. [58]
    QCU refers to Re The Women’s Community Aid Association (Qld) Limited,[10] where Senior Member Endicott rejected an application for an exemption from certain provisions of the AD Act. Senior Member Endicott found that the operation of s 25 meant that a women’s only premises did not require a general exemption to restrict the provision of services to only women and their children on the basis that such conduct is not inconsistent with the objectives of the AD Act.

Queensland Human Rights Commission submissions

  1. [59]
    In respect of sex discrimination, the QHRC concurs that s 25 of the AD Act may operate to exempt the Applicant on the basis of genuine operational requirements.
  1. [60]
    The QHRC considers that an exemption to allow sex discrimination relating to the roles that require 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.
  1. [61]
    The QHRC acknowledges the legitimate need for the applicant to engage only females in work. However, the QHRC submits an exemption for the attributes of both sex and gender identity would exclude a broad category of persons, including trans women and persons who identify and express themselves as female.
  1. [62]
    While the limitation of the right to equality and protection from discrimination would be reasonable and justified with respect to an exemption to allow the applicant to engage only females, the Applicant has not demonstrated that a limitation with respect to trans women and persons who identify and express themselves as female is reasonable and justified.
  1. [63]
    The QHRC submits that an exemption from the relevant provisions in relation to the attributes of sex and gender identity should be expressly limited by an order that makes it clear the exemption applies only in respect of advertising, recruitment, and employment practices that limit work to females, trans women, and persons who identify and express themselves as female.

Consideration

The discretion granted by s 113 of the AD Act

  1. [64]
    The discretion conferred by s 113 of the AD Act is broad.[11] Notwithstanding, the discretion is not without restriction and should not be exercised in a perfunctory manner, even where a proposed exemption is not opposed. Exemptions ought to be limited only to circumstances where offending conduct is not inconsistent with the AD Act.[12]
  1. [65]
    Additionally, the exercise of the discretion must include a discharge of the Commission’s obligations prescribed by s 58 of the HR Act.[13]
  1. [66]
    The matters to be considered in the exercise of the discretion were identified by Vice President O'Connor in Re: Protech Personnel Pty Ltd where he observed:[14]

[9] 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;
  1. Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
  1. Whether the exemption is in the community interest;
  1. Whether any other persons or bodies other than the applicant support the application;
  1. Whether it is reasonable and appropriate to grant the exemption; and
  1. The effect of not granting the exemption.
  1. [67]
    For all of the reasons that follow, I have determined not to grant the exemption. To best explain this decision, I consider it helpful to step through those established considerations. Before doing so, I further consider it necessary to make relevant observations about some apparent misconceptions and other difficulties that I have encountered in considering the application.
  1. [68]
    To ensure clarity, I preface these comments by saying that my observations should not reflect adversely on the Applicant. I am fully cognisant that the Applicant is a not-for-profit organisation that performs a vital service to women and children affected by domestic and family violence (‘DFV’). It is not overstating it to say that the Applicant is more than likely saving the lives of some of the women and children to whom they provide refuge.
  1. [69]
    I acknowledge the important and altruistic nature of the work performed by the Applicant and its employees, and none of my observations about the apparent misconceptions and difficulties with the application should be read in any way that diminishes this work or the Applicant. These observations are intended as constructive observations which may serve as a useful guide for them (or others) who seek exemptions from this Commission in the future.

Misconceptions contained in the application

  1. [70]
    Dealing firstly with the apparent misconceptions contained in the application and submissions: On proper reflection, it appears that the first application, the amended application and the submissions have been underpinned by a critical misunderstanding of the operation of the AD Act.
  1. [71]
    While the language is not entirely clear, it would seem that the Applicant considered their application was seeking to have the Commission grant the exemption on the basis it would conclude that they were exempt pursuant to a genuine occupational requirement in accordance with s 25 of the AD Act.
  1. [72]
    While the amended application properly identifies s 113 of the AD Act as the basis for the application, the Applicant’s submissions filed on 9 February 2024 (at page 5) relevantly say:

Sera’s has applied for an exemption under s 113 Anti-Discrimination Act 1991 (Qld) (the Act) to enable it to legally advertise for woman only workers pursuant to s 25 Genuine Occupational Requirements.

…

The exemption we seek pursuant to s 25…

…

To enable the exemption pursuant (to) s 25 of the Act to be granted…

(Emphasis added)

  1. [73]
    Later in the same submissions (at page 9), the Applicant also adds s 104 of the AD Act in a similar submission.
  1. [74]
    It appears that, even after the amended application and submissions were filed (with apparent assistance) the Applicant was seeking something in the form of a declaration that they were exempt in accordance with s 25 or s 104 of the AD Act.
  1. [75]
    Sections 25 and 104 of the AD Act are not used in that way. They are effectively defences to be pleaded in response to a complaint.[15] But further, those sections are statutory exemptions that (arguably) already apply to the Applicant. Indeed, I have reached that conclusion later in these reasons.
  1. [76]
    It seems that the Applicant did not appreciate that their application was, and has always been, regarded as an application pursuant to s 113 of the AD Act. It follows that the Applicant has failed to properly and more directly address the basis upon which they say their circumstances warrant an exemption pursuant to s 113 of the AD Act, over and above the statutory exemptions that are already available.
  1. [77]
    Notwithstanding the inadequacies in the Applicant’s submissions, the matter remains competent for consideration pursuant to s 113 of the AD Act. 

Other difficulties with the application

(i) lack of supporting evidence and data

  1. [78]
    The lengthy journey of this application is set out earlier in these reasons. Suffice to say the application originally filed could most kindly be described as very unsophisticated. It was a single form, with a handful of sentences said to describe the exemption sought, but it did not. The written submissions that followed were of no real assistance either.
  1. [79]
    The amended application and submissions were somewhat clearer but even then, on the matters of relevance, they were cursory at best.  They were also unsupported by any actual evidence.
  1. [80]
    While I entirely understand and agree with the premise pressed by the Applicant i.e., that a male presence in the refuge creates a risk of trauma to their clients, an application of this nature should not be founded on a mere generalisation, no matter how widely it might be accepted.  I would have been better assisted in my considerations if an affidavit from a staff member was furnished setting out how the presence of a male in their workplace could (or has) adversely affected clients.
  1. [81]
    More helpful again (especially given that the nature of the exemptions sought extends to ‘gender identity’) would have been evidence from a suitably qualified medical expert setting out the symptoms and presentation of DFV related trauma, and describing the types of triggers created by the traits and characteristics typically associated with males.
  1. [82]
    Further, helpful and readily available data with respect to the prevalence of DFV, assaults, deaths, and gender of perpetrators was not supplied with the first or the amended application or submissions. That information (relied on later in these reasons to demonstrate the serious risks to women and children from DFV) had to be collated through my own research.
  1. [83]
    In all, the amended application and submissions were significantly lacking in important supporting material that could (and should) have been provided.

(ii) omission of relevant attribute

  1. [84]
    The amended application makes no request for the exemption to extend to the recently introduced attribute found at s 7(o) of the AD Act, namely ‘sex characteristics’. The definition of this attribute is set out above, and it is arguably very relevant to the Applicant’s concerns to ensure the absence of males or persons who present with traits and characteristics of males from the workplace.
  1. [85]
    The Applicant’s amended submissions dealing with their request for exemption with respect to the attribute of ‘gender identity’ address their concern that a transgender person presenting as a male is a scenario they want covered by the exemption.[16] While the scenario described in the Applicant’s submissions is limited to concerns of a biological woman who is transitioning to (and possibly presenting as) a male, the inverted scenario is equally problematic with respect to the Applicant’s express concern i.e., a biological male who is transitioning to female, but who presents with male traits and characteristics.
  1. [86]
    In the circumstances, subject to my qualifying remarks below, the proposal to seek exemption in respect of ‘gender identity’ is a logical and reasonable inclusion. But the problem for the Applicant is that the attribute of ‘gender identity’ is not the only prescribed attribute affording protection against discrimination for inter alia transgender people.
  1. [87]
    It is not clear whether the Applicant’s amended application deliberately omitted the prescribed attribute of ‘sex characteristics’. They were placed on notice by email from the QHRC on 31 January 2024 that it was to be included in amendments to the AD Act, so it must be presumed they were at least aware of it.
  1. [88]
    The attribute of ‘sex characteristics’ has not yet been the subject of any jurisprudence. However, on a plain reading of the language of the AD Act (including the definition) it is a prescribed attribute directly relevant to the circumstances giving rise to the exemptions sought by the Applicant. It is, in many respects, an attribute that might serve as an additional or alternative basis for a complaint in respect to discrimination on the basis of sex or gender identity. For example, a transgender woman (a biological male who is transitioning) and who identifies as female could clearly plead discrimination on the basis of a ‘sex characteristic’ e.g., of a Y chromosome as an alternative (or in addition) to the attribute of ‘gender identity’. 
  1. [89]
    In circumstances where the Applicant seeks to exempt such a person on the basis of her sex or gender identity, she would still potentially have a viable complaint in respect of sex characteristics (subject to the application of statutory exemptions) and an exemption with respect to sex or gender identity would not protect or assist them.
  1. [90]
    The application for exemption pre-dated the amendments to the AD Act, but its proposed term was for five years. The absence of the attribute of ‘sex characteristic’ from the exemption application arguably renders the proposed exemption ineffective.           

(iii) The full implications of the proposed exemption

  1. [91]
    In considering this application I was, at first, favourably drawn to the simple proposition relied on by the Applicant i.e., that an exemption in respect of males from the workplace was a simple, logical, and justifiable exemption. But the process of considering an application of this nature requires comprehensive consideration that includes the precise details of what is sought, why it is being sought, who is affected, who opposes it, and why it is opposed. The full implications of a proposed exemption must be considered, not just the matters placed before the Commission by an applicant.
  1. [92]
    It was only through undertaking this process that, as I explain below, the full implications of the proposed exemption were revealed, and the superficial logic of the Applicant’s proposition unravelled.
  1. [93]
    On fuller consideration of the exemption being sought, and particularly after having regard to the Applicant’s submissions regarding the reasons they seek exemption with respect to ‘gender identity’, it is clear that it is not simply a request to be able to lawfully discriminate against men or males.
  1. [94]
    Plainly, the presence of men in this workplace is inappropriate. And where ‘men’ or ‘males’ pertains to what are described as ‘cis males’ the exclusion is simple enough to regulate with an exemption in respect of ‘sex’.[17] It is when one begins to consider ‘gender identity’ that the matter becomes complicated.
  1. [95]
    In the Applicant’s submissions filed on 9 February 2024, in respect of the stated need to extend the exemption to ‘gender identity’ they illustrate their submission with the following example:[18]

Should Seras not be permitted to legally rely on the basis that it would not be discriminating against the two attributes (s 7(a) sex and s 7(m) gender identity) of the Act, to form its Application for an exemption, then this would mean that women identifying as males, and possibly presenting as males, may seek employment with Sera’s.

Therefore, as submitted, there is a requirement for an exemption on the basis of both Sex and Gender Identity in circumstances where a male, or a woman transitioning to be a male, or a woman identifying and/or transitioning to be a male is of female biological sex wishes to seek employment with Sera’s or is already employed at Sera’s.

(Emphasis added)

  1. [96]
    The example given by the Applicant gives a glimpse of the broader, more complex issue sought to be addressed by the exemption. As discussed earlier in these reasons, the inverted scenario produces the same issues relevant to the concerns expressed by the Applicant.
  1. [97]
    The potential for diversity of presentation amongst individuals where gender identity is determined by subjective factors is limitless. While matters of personal appearance have not previously been at the forefront of prescribed attributes in the AD Act, the introduction of ‘sex characteristics’ squarely establishes a prohibition on discrimination based on inter alia the physical presentation of an individual.
  1. [98]
    It is not necessary in these reasons to undertake the undignified exercise of exploring the spectrum of possibilities for presentation of transgender individuals. Suffice to say that the presentation of each individual who identifies as, or aspires to be, a gender other than the biological one assigned at their birth will be uniquely different. Their presentation, for various reasons, will often incorporate traits and characteristics that are uniquely male.
  1. [99]
    At this juncture it is important to note more broadly that the right to identify as a gender other than the biological one assigned to a person at birth is not in question. Moreover, the right to do so free from all forms of discrimination is, subject to certain exemptions, enshrined in the AD Act.
  1. [100]
    But the injunction against discrimination on the basis of gender identity is not a requirement for others to adopt the attribute-holder’s perception of reality.[19] A personal belief as to one’s gender cannot fully influence or overcome the subjective perceptions of each individual with whom they come into contact. Even on the kindest and most supportive consideration of this scenario, it cannot be denied that the presentation of some individuals may be such that it poses a risk of trauma to the Applicant’s clients, regardless of whether those individuals identify as female.
  1. [101]
    For this reason, I can appreciate where the Applicant’s concerns might arguably legitimately override the rights of those protected individuals in a general sense.  But it is the uniqueness of those individuals which undermines the merit of the proposed exemption. It is here that the words of Member Paratz are apposite and are worth repeating:[20]

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

(Emphasis added)

  1. [102]
    The stated purpose of the exemption sought by the Applicant is, in essence, to secure an environment for traumatised women and children that is free from the risk of triggers of further trauma. It is accepted without hesitation that the clients seeking refuge at the Applicant’s shelter would be experiencing trauma. To that end, the general premise for the exemption i.e., to avoid or reduce this trauma, has unassailable merit.
  1. [103]
    It is wholly accepted that the great majority of perpetrators of DFV are men.[21] As such, the exclusion of men from this environment is entirely proper. A male presence in the Applicant’s workplace would pose an unacceptable risk of traumatising vulnerable women and children seeking refuge.
  1. [104]
    But while this conclusion readily leads the mind to the Applicant’s proposed solution of removing men from that environment, when one has regard to the Applicant’s example of a transitioning biological woman cited above, it becomes apparent that the risk sought to be addressed is more complex and diverse than just ‘men’.
  1. [105]
    In accepting that the trigger is ‘males’ or ‘men’ it is then necessary to consider how males or men trigger trauma to better understand the scope of the exemption proposed. It is only when one considers the mechanism of triggering that it is apparent that the triggers are not just males but, more precisely, it is a broader group that also includes those who possess the traits and characteristics typically associated with males or men.
  1. [106]
    The relevant traits and characteristics are broadly in two categories:  firstly, they are auditory i.e., sound, tone, or depth of a voice and secondly, they are visual i.e., anatomical characteristics such as hairline, jawline, prominence of larynx, width of shoulders, musculature and, more superficially, type and style of clothing. Insofar as these traits and characteristics can generally be associated with ‘men’ or ‘males’, it is also the case that they are not exclusively so.
  1. [107]
    All of the traits and characteristics described above can be found amongst other members of the community who are not cis males. Conversely, there may be instances where e.g. a transgender person’s transition was undertaken pre-puberty or has been otherwise fully completed with a result that has eliminated any visible male traits or characteristics. It is these scenarios and others like them that undo the otherwise simple proposition posed by the Applicant.
  1. [108]
    When one considers the stated reasons for the exemption, it is plainly not as narrow as excluding ‘men’. It would not extend to gender identity if it were.
  1. [109]
    The proposed exemption is plainly intended to exclude men, but also to exclude any individuals with male traits and characteristics of the kind likely to trigger trauma in the Applicant’s clients. And while I consider that, superficially, this is a reasonable request made for sound reasons, when one begins to contemplate the diversity of practical scenarios to which the exemption might apply, the potential for an exemption to authorise discrimination that is unjustified begins to emerge.
  1. [110]
    Given that it is male traits and characteristics that are the trigger for trauma, it becomes more difficult to see justification in exempting an individual from the protections of the AD Act where an individual objectively does not possess those traits. For an exemption to be justified it must, in my view, have uniform purpose and application. If there is any potential for an exemption to be applied in a manner where the basis for the exemption has no relevance to an individual excluded by it, then an exemption ought to be refused.
  1. [111]
    Further, even if the Applicant had sought to extend the exemption to ‘sex characteristics’ this difficulty would not be overcome. Whether it is exemption sought with respect to ‘gender identity’ or ‘sex characteristics’, a transgender person free of any of the triggering male traits or characteristics would arguably not pose any of the risks said to form the justification for the exemption.
  1. [112]
    While an exemption granted pursuant to s 113 of the AD Act is inherently bound to produce discriminatory outcomes, care must be taken to ensure that those outcomes can be justified in respect of the individuals affected by them. In circumstances where no two transgender people are going to be alike, it seems that the proposed exemption in this particular scenario will always struggle to be consistently justified.
  1. [113]
    Having reflected on this aspect of the application at some length, I am unable to feel comfortable with the exemption in respect of gender identity. My instinct to eschew the exemption is perhaps best explained by reference to the sentiments expressed by Member Paratz set out above.
  1. [114]
    Having regard to the examples and scenarios discussed above, I cannot exclude the conclusion that a generalised exemption in respect to gender identity would be too broad and would potentially deprive an individual of rights without justification.

(iv) summary re application difficulties

  1. [115]
    While it is within the Commission’s powers to have made further orders for the provision of statements and evidence, it is the Applicant’s application to present. The Applicant has now had the benefit of multiple mentions before the Commission to discuss their application. The QHRC gave them a detailed outline of the relevant impending amendments to the AD Act, and they have had two opportunities to plead full details in their first and amended applications, and to file submissions.
  1. [116]
    It has been my enduring impression with this application that the Applicant mistakenly held an expectation that the Commission would do the ‘heavy lifting’ in terms of the reasoning in support of the exemption. While I appreciate that the Applicant is an unsophisticated litigant with limited resources, it cannot be emphasised enough that the granting of an exemption from the operation of the AD Act is not a routine matter to be dealt with casually.
  1. [117]
    The purpose of the AD Act is, inter alia, to ensure protection against discrimination for some of the most vulnerable members of society.  For this reason, an exemption cannot be granted in a perfunctory way, or in the absence of compelling evidence and submissions in support. The obligation to provide those submissions and evidence very much rests with the party seeking the exemption.
  1. [118]
    While the protection of vulnerable women and children is, without doubt, a high priority in our society, it must be remembered that one effect of the exemption sought would be to legitimise discrimination on the basis of gender identity. The exemption on those grounds might well be justifiable in some cases, but it cannot be ignored that the people likely to be affected by such an exemption also have their own vulnerabilities which include comparatively higher rates of mental illness, including self-harm and suicide.[22]
  1. [119]
    In those circumstances, while I thoroughly appreciate the importance of the work performed by the Applicant and despair at the crisis in our society that gives rise to it, the lack of compelling evidence and my discomfort around the inequitable application of the proposed exemption to inter alia transgender people lead me to conclude that the application must be refused.
  1. [120]
    However, to be clear, it is the patent lack of necessity for the exemption that has been most influential to my decision.

Whether the exemption is necessary

  1. [121]
    On this consideration I am very much aided by the reasoning of Senior Member Endicott in Women’s Legal Service Inc.[23] In that matter the Senior Member was considering an application for exemption whereby the applicant legal service sought the exemption to allow them to advertise for and hire only women. The basis for the application was that they provided legal advice to women affected by trauma due to DFV and the presence of men in their workplace would have a variety of adverse impacts on their clients, including trauma.
  1. [122]
    The Senior Member held:[24]

In considering this exemption application, QCAT must consider whether an exemption is necessary. Conduct which may appear initially to breach the provisions of the Anti-Discrimination Act may in fact be excused from liability due to the presence of specific exemptions or defences in the Act. If there is a specific exemption, a general exemption under section 113 is not required…

…

If the services provided by workers at Women’s Legal Service were limited to legal and support services to women who had experienced domestic violence, then the specific exemption in section 25 would be effective and would render unnecessary a general exemption under section 113…

(Emphasis added)

  1. [123]
    In that matter the Senior Member found that it was a genuine occupational requirement for employees of the legal service to be women insofar as their roles related to advice and support of victims of DFV. To that end, the Senior Member held the exemption at s 25 could be considered.
  1. [124]
    But the Senior Member went on to conclude that because the legal service provided services in addition to support and advice to women affected by DFV, then the exemption with respect to genuine occupational requirement may not apply. In those circumstances the Senior Member granted the exemption on the basis that it was necessary.
  1. [125]
    The determination by the Senior Member can be contrast with her earlier decision of Re The Women’s Community Aid Association (Qld) Limited[25] in which the Senior Member refused an exemption application for an organisation that was staffed by women and provided a range of support and advisory services to women including a ‘safe space’ for survivors of domestic and sexual violence.
  1. [126]
    The Senior Member held that it was a genuine occupational requirement for employees of such a service to be women and consequently, s 25 of the AD Act was available to them as an exemption. The Senior Member alternatively found that s 104 of the AD Act also applied. In those circumstances the exemption was refused on the basis it was unnecessary. 
  1. [127]
    The AD Act already provides exemptions that are applicable to the Applicant’s situation.
  1. [128]
    Section 25 of the AD Act relevantly provides:

25  Genuine occupational requirements

  1. A person may impose genuine occupational requirements for a position.

Examples of genuine requirements for a position—

Example 1—

selecting an actor for a dramatic performance on the basis of age, race or sex for reasons of authenticity

Example 2—

using membership of a particular political party as a criterion for a position as an adviser to a political party or a worker in the office of a member of Parliament

Example 3—

considering only women applicants for a position involving body searches of women

Example 4—

employing persons of a particular religion to teach in a school established for students of the particular religion

(Emphasis added)

  1. [129]
    In the Women’s Legal Service decision Senior Member Endicott considered the application of s 25 of the AD Act in respect of the functions of that service in providing advice and support to women affected by DFV. The Senior Member held:[26]

It was submitted that the attribute of being a woman could constitute a genuine occupational requirement for many of the services provided by Women’s Legal Services in which the workers are required to have direct contact with domestic violence victims. Case law authorities have determined that a position with a “genuine occupational requirement” can be established when that position would not be essentially the same if the requirement were to be absent.

The question is whether the position of a legal advisor or social worker providing advice and support to a woman impacted by domestic violence and who is seeking legal redress or protection through a community legal centre is a position where it is a genuine occupational requirement that a female only provide that service. The question must be considered in the context that the particular community legal centre works within a feminist framework, has a philosophy of respecting women’s rights to safety and to live free from violence and where the workers must work to empower women to make choices and have control over their lives.

I am satisfied that the evidence presented by the applicant has established that women who have experienced, or who are at risk of, domestic violence generally feel more comfortable with reporting and then with discussing issues about the abuse they faced in their relationships with other women. It is essential that when providing advice and support for women with domestic violence issues, this community legal service can instil a sense of safety and respect in its clients whose trust in males has been adversely impacted by violence and by controlling behaviour from a male intimate partner or other close male family relative.

That sense of safety is fragile when the domestic violence is recent and is still unresolved in the legal process and when the power imbalance in a relationship has been exploited by a male partner by words and deeds. It would be reasonably predicted in such circumstances that women would not be comfortable with a male legal advisor guiding them through the legal process or providing them with choices for action. I am satisfied that the position of a worker at a community legal service set up to provide legal and other support services to women who have experienced domestic violence gives rise to an inherent occupational requirement that the position is filled only by a female worker.

(Emphasis added)

  1. [130]
    I agree entirely with the comments of Senior Member Endicott. I further consider they are apposite to the workplace of the Applicant, though I note that the Senior Member had only to deal with the binary proposition of ‘men/women’ or ‘male/female’. 
  1. [131]
    To the extent that the Applicant were required to respond to a complaint of discrimination on the basis of sex, gender identity, or sex characteristics, I consider that it is a genuine occupational requirement of employment with the Applicant that employees be biologically women. I further consider it is a genuine operational requirement that employees be free of any male trait or characteristic likely to cause distress or trauma to clients of the Applicant’s service.  
  1. [132]
    Section 104 of the AD Act relevantly provides:

104  Welfare measures

A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.

Example 1—

It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail.

Example 2—

It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people.

Example 3—

It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks.

(Emphasis added)

  1. [133]
    In the Women’s Community Aid decision, Senior Member Endicott alternatively held that s 104 of the AD Act applied when she held:[27]

The Anti-Discrimination Act 1991 provides that it is not unlawful to discriminate if an exemption in sections 104 to 113 applies. Section 104 of that Act provides a person may carry out some conduct to benefit the members of a group of people with an attribute for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991.

I am satisfied that providing counselling, support services and a safe environment to gather to women who have experienced violence from men is for the benefit of women (i.e. for a group of people identified by the attribute of their sex) and that providing these services is not inconsistent with the Anti-Discrimination Act 1991. Indeed, one of the examples given in the Act as to how section 104 can be applied is about lawfully providing services solely to women who have been the subject of domestic violence.

The Act recognises that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society. I am satisfied that the Anti-Discrimination Act 1991 does seek to reflect the aspirations and needs of our society by inter alia providing specific exemption in section 104 to organisations such as WCAA from liability for conduct that promotes and furthers the welfare of women who have experienced violence from men.

(Emphasis added)

  1. [134]
    Again, I entirely agree with the comments of Senior Member Endicott. I further consider that s 104 of the AD Act is an exemption that plainly already applies to the Applicant. Moreover, it is much broader in its application than s 25 of the AD Act in that it permits ‘an act’ to be done to benefit members of a protected group.
  1. [135]
    In those circumstances I consider that the Applicant could rely on the s 104 exemption to specify not only the biological gender of employees, but also the way in which they present.
  1. [136]
    Finally, s 108 of the AD Act relevantly provides:

108  Workplace health and safety

A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

(Emphasis added)

  1. [137]
    The Applicant is an Incorporated Association that employs people and as such, is almost certainly a duty holder under the Work Health and Safety Act 2011 (Qld) (‘WHS Act’).[28] In those circumstances the Applicant has a statutory duty under the WHS Act to ensure the health and safety of ‘other persons’.[29] Risk management would undoubtedly include risk of psychological harm.
  1. [138]
    In my view there is an obvious risk that a masculine presence in this workplace will cause or exacerbate trauma in the Applicant’s clients. There is arguably a statutory duty pursuant to the WHS Act for the Applicant to manage this risk. The exclusion of males or persons displaying masculine traits and characteristics would, in my view, be a legitimate measure necessary to discharge the significant duties the Applicant has under the WHS Act.
  1. [139]
    In terms similar to s 104 of the AD Act, s 108 permits the Applicant to do ‘an act’ reasonably necessary to protect the health and safety of people at a place of work. Again, this gives the Applicant a very broad scope to legitimately discriminate in the interests of risk management.
  1. [140]
    The AD Act plainly contains exemptions to accommodate the Applicant’s concerns. In those circumstances I consider that the exemption sought is unnecessary. While I am conscious that this conclusion might prompt me to end my consideration of the amended application here, I consider there is some benefit in briefly addressing the other considerations also.

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

  1. [141]
    The exemption sought is a binary proposition i.e., the Applicant seeks to restrict its recruitment and hiring exclusively to ‘women’.
  1. [142]
    Whether this excludes cis males, biological males who identify otherwise, or transgender persons, the effect of the exemption will inevitably be the express exclusion from employment with the Applicant, other than those who are biologically female and present as such.
  1. [143]
    Neither the QCU nor the QHRC have proposed non-discriminatory ways of achieving the exemption and having contemplated the matter, I cannot identify any either. The exclusive employment of women who present as women will inevitably require discrimination.
  1. [144]
    The reasons for the exemption have already been addressed, as has the question of necessity. Given the clear demarcation sought by the Applicant, it is plain that the exemption cannot be achieved in a non-discriminatory way.

Whether the exemption is in the community interest

  1. [145]
    According to a personal safety survey published by the Australian Bureau of Statistics, one in six Australian women experienced violence in their domestic relationship in 2021-22.[30] Women dominated the statistics of intimate partner homicide victims.[31] These figures are a 20-30% increase on previous years.[32]
  1. [146]
    Between July 2022 and June 2023, 34 women were killed by their intimate partner.[33] It is trite to observe that homicide is the most extreme example of DFV in a range of other violent or abusive behaviours.
  1. [147]
    The statistics on homicide do not reflect the increasingly apparent presence of physical and emotional abuse and coercive control that exist in domestic relationships in the broader community. Much of the data on those matters still remains cloaked by a lack of reporting by victims who have not reached a point of engaging with police, the courts or other support services. The real rate of the broader types of DFV at any given time may never be able to be accurately ascertained. 
  1. [148]
    Between July 2023 and May 2024 there were in excess of 25,000 applications made in the Magistrates Courts in Queensland for Domestic Violence Orders (DVO). Of those applications, approximately 77% were made by women.[34] This equates to approximately 19250 women, in Queensland, in one year.
  1. [149]
    While it is difficult to identify how many women are at risk at any given time due to DFV, these statistics give some insight into how many women (in Queensland alone) had reached a point in the last 12 months where they felt it necessary to seek the intervention of a court to protect themselves or their children from the threat of violence.
  1. [150]
    The data is not clear, but the common experience with DVOs is that they are made at a point of culmination i.e., in a context of weeks, months or years of escalating DFV. It would therefore not be unreasonable to estimate that for every woman who initiated a DVO in the last 12 months, there would be at least one other who has not yet reached a point where they will seek the intervention of police or a court.    
  1. [151]
    The prevalence of DFV within our society is a topic that is subject to increasing awareness. Governments at all levels are now proactively developing policy and legislation to address DFV in a range of ways. The rate of DFV related fatalities would suggest there is still much work to be done.
  1. [152]
    In all of these circumstances there is an obvious community interest in any measures that aid and assist the prevention of DFV. By extension, services that provide relief and shelter to those who are victims of DFV are plainly done so in the community interest, and anything that enhances those services could be regarded as being in the community interest.
  1. [153]
    Notwithstanding this general conclusion, when one has regard to the statutory exemptions already available to the Applicant, the exemption proposed is a duplication rather than an enhancement of the measures available to assist the Applicant’s service delivery. Refusing to grant the proposed exemption will not detract from the services provided by the Applicant nor prevent them from providing services in the way they propose to i.e, with the employees best suited to the inherent requirements of the role.
  1. [154]
    In circumstances where there are effective statutory exemptions in place, and where there is a risk (albeit slight) that the proposed exemption may result in an unjust outcome, the community interest will still be served just as effectively by the statutory exemptions.

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

  1. [155]
    Both the QCU and the QHRC opposed the exemption. Their positions in this regard are explained earlier in these reasons. No other entity notified of the application made a submission. 

Whether it is reasonable and appropriate to grant the exemption

  1. [156]
    For all of the reasons already stated I do not consider it appropriate to grant the exemption.

The effect of not granting the exemption

  1. [157]
    The practical effect of not granting the exemption will be that the Applicant remains bound by the terms of the AD Act. However, while the AD Act sets out certain proscribed conduct, any question of a contravention of the AD Act is a matter for determination by inter alia this Commission, and only upon the making of a complaint and a hearing of evidence. That evidence should inevitably include matters relevant to the application of statutory exemptions in defence.
  1. [158]
    While the statutory exemptions provide protection that lacks the comfort the Applicant might feel from an exemption that allows them a pre-emptive right to actively discriminate, the suite of exemptions already available should assure the Applicant that, in all likelihood, they can (if required) rely on an existing statutory exemption to allow them to selectively recruit or refuse to hire an unsuitable individual.
  1. [159]
    To the extent that I have not already been clear about this, I consider that on the description of the workplace already before the Commission, an inherent requirement of any person employed by the Applicant at their shelter would be that are biologically female and further, that they are absent of objectively appreciable male traits and characteristics. While this would obviously exclude cis men, it also allows the Applicant to exercise a greater degree of discretion with respect to other applicants without having to commit them to a ‘label’ as to who they can and cannot discriminate against.
  1. [160]
    Alternatively, as I have already concluded above, the nature of the business conducted by the Applicant plainly falls within the contemplation of s 104 of the AD Act. Section 104 of the AD Act even provides the example of crisis accommodation for women who are victims of DFV. The operation of s 104 is not limited to the examples it contains. In my view, restricting employment to women only at a DFV refuge for women is entirely within the contemplation of the exemption contained at s 104 of the AD Act.
  1. [161]
    The Applicant’s proposed discriminatory employment practices would also be allowed pursuant to s 108 of the AD Act in my view.
  1. [162]
    In the circumstances, the effect of not granting the exemption is that the Applicant will not have the benefit of a pre-emptive right to discriminate. They will instead be required to plead and prove the application of one (or all) of the statutory exemptions upon which they rely.[35] But this requirement only arises if there is a complaint of discrimination. Given the views I have expressed above, any such complaint would likely be swiftly dismissed.
  1. [163]
    Further, the granting of an exemption is not a panacea to avoiding litigation. Individuals are free to make complaints regardless of the existence of a s 113 exemption, and the Applicant would still be required to respond in much the same manner as they would if they were granted the exemption by pleading the existence and effect of a previously granted exemption.
  1. [164]
    The Applicant is no better or worse off for the refusal to grant the exemption.

The Human Rights Act

  1. [165]
    Before concluding, it is necessary to have regard to s 58 of the HR Act. There is an instinctive temptation to dismiss the need to consider the HR Act given that I have refused the application for exemption. I have therefore not disturbed the status quo. In those circumstances I have made a decision that has not affected nor is it incompatible with the human rights of any individual.
  1. [166]
    But the language of s 58 of the HR Act does not discriminate as to the type of decision that provokes the obligation to consider human rights. Regard must be had to s 58 of the HR Act in every decision by a public entity. 
  1. [167]
    Section 58(1)(a) of the HR Act provides that it is unlawful to inter alia make a decision ‘in a way’ that is ‘not compatible with human rights’. The proscribed conduct contemplated by s 58(1)(a) of the HR Act is the way in which the decision was made (rather than the decision itself). 
  1. [168]
    Relevantly, s 48 of the HR Act prescribes statutory provisions must be interpreted in a way that is compatible with human rights. Section 8(a) of the HR Act provides that a decision is compatible with human rights if inter alia it does not limit a human right.
  1. [169]
    The Applicant does not have human rights.[36] Further, my decision to refuse the application has not deprived the Applicant’s office holders and employees of any right that they held before their application was refused. The mere act of declining an application whose purpose was to extend exemptions to discriminate has not limited any human rights of those individuals. I am satisfied that my decision is compatible with human rights. And the human rights of those sought to be excluded by the exemption remain undisturbed.  
  1. [170]
    But the obligations imposed on me by s 58 of the HR Act do not end there.     
  1. [171]
    Section 58(1)(b) of the HR Act also requires me to give ‘proper consideration’ to a human right ‘relevant to the decision’. The first step is to identify the human rights relevant to the decision, and the holders of those rights.
  1. [172]
    The Applicant is not an individual and as such does not have human rights. Beyond the Applicant, there is arguably some impact on the employees and clients of the Applicant.
  1. [173]
    I am not privy to the individual circumstances of each employee or client of the Applicant affected by this decision. However, s 58(5) of the HR Act only requires me to identify the human rights that ‘may’ be affected. The language invites, where necessary, a speculative or hypothetical consideration.
  1. [174]
    In the absence of precise details of individuals potentially affected, I do not consider the obligations of s 58(1)(b) of the HR Act require me to embark on an investigative process to identify individuals affected in order to discharge the obligation. Both the individuals and their circumstances are likely to be diverse, especially the clients.  In those circumstances I can only speculate about their human rights. Out of an abundance of caution to ensure compliance with the HR Act, I will speculate broadly.
  1. [175]
    Part 2 of the HR Act delivers an extraordinarily generous suite of rights. Having regard to what I imagine would be a diverse group of individuals that likely makes up the employees and clients of the Applicant, and the multitude of reasons and circumstances that drive women and their children to flee DFV, there is hardly a right conferred in Part 2 of the HR Act that would not conceivably be impacted by the decision. As such, I have considered them all.
  1. [176]
    Given the nature of my decision and its neutral impact on the status quo, I do not intend to descend into the analysis of my considerations in these reasons. Suffice to say, while the range of rights is broad, I consider the impact of my decision on those rights is less than negligible. This is best illustrated by considering the nature of the Applicant’s application. 
  1. [177]
    The Applicant was at liberty to apply for an exemption pursuant to s 113 of the AD Act. The nature of such an application is that, if accepted, it confers a right on the Applicant (or its officers and employees) that they otherwise did not have. Conversely, refusing the application has not deprived the Applicant (or its officers and employees) of any right, human or otherwise.
  1. [178]
    Further, my decision outlines how the proposed exemption can be achieved in multiple alternative ways by reliance on the existing statutory exemptions.  It leaves the Applicant and its employees and clients in entirely the same position they were always in. It follows that whatever impact my decision has on the Applicant’s employees or clients, it is not incompatible with their human rights, nor does it limit them.
  1. [179]
    For completeness, to the extent my conclusions about the application of the statutory exemptions might impact on the human rights of individuals who will be excluded from employment with the Applicant, they are equally unaffected. They remain at liberty to apply for work with the Applicant and my observations about the application of the statutory exemptions are in no way a barrier. Any refusal of work to such an individual is not authorised by my decision but is, instead, a separate decision of the Applicant.
  1. [180]
    Alternatively, if my decision has imposed any limitation of their rights they hold pursuant to s 15 of the HR Act, I consider such limitation is reasonable and demonstrably justified when one has regard to the statistical data regarding DFV set out earlier in these reasons.[37]
  1. [181]
    Any human rights limitation arising from my decision is important because it inter alia serves to protect vulnerable women and children from continued risk of violence and death. When balanced against the rights of affected individuals who may be deprived employment opportunities with the Applicant, there can be no contest as to which must take priority.[38]

Conclusion

  1. [182]
    The Applicant performs an important role in providing protection and refuge to vulnerable women and children.  They are entirely justified in their pursuit of employment practices that exclude men or other individuals with male traits and characteristics likely to trigger trauma in clients.
  1. [183]
    My concerns about the impracticality of a blanket exemption for gender identity are not a pedantic consideration of appearances. The diversity and complexity accompanying matters of gender and gender identity mean that all scenarios must be considered in order to fully appreciate the effect of a proposed exemption. And where such consideration reveals the possibility of authorising discrimination that is not justifiable, an exemption ought to be refused. In my view the interests of the Applicant, their clients, and the wider community are better served by the Applicant evaluating suitability for employment on a case by case basis.
  1. [184]
    That is not to say that I have not understood the Applicant’s concerns. I am entirely in agreement with their ambitions to ensure a workplace where their clients will not be at risk of experiencing further trauma. Moreover, I consider that the Applicant can still achieve this, albeit it will require a more carefully structured recruitment process and policies. And in the event those measures still lead to a complaint of discrimination, the Applicant will have the benefit of the statutory exemptions that already afford them the protection they desire.

Order

The application for exemption is declined.

Footnotes

[1] For clarity, any reference in these reasons to the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) at a point in the chronology prior to 29 April 2024 is a reference to the AD Act prior to the amendments that came into effect on that date. 

[2] [2019] QIRC 060, [18], citing Paratz, M in Downer EDI Mining [2013] QCAT 99, [16]. 

[3] Industrial Relations Act 2016 (Qld) s 447(2).

[4] Given the stated purpose of the application the exemption is more properly expressed (and was understood to be) as an exemption from the operation of sections 14, 15, 124, and 127 in relation to the attributes prescribed at sections 7(a) and 7(m). This was subsequently confirmed in written submissions.

[5] AD Act (n 1) sch 1.

[6] Ibid ss 7(a), (m), (o).

[7] [2020] QIRC 194, [35].

[8] Ibid.

[9] Human Rights Act 2019 (Qld) s 58.

[10] [2011] QCAT 593.

[11] Re: Kalwun Development Corporation Limited [2019] QIRC 141, [6].

[12] Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52, [9].

[13] Re: Ipswich City Council [2020] QIRC 194.

[14] [2019] QIRC 175 (citations omitted). See also Re the Women’s Legal Service Inc [2019] QIRC 060, [18]-[19].

[15] AD Act (n 1) s 206.

[16] At page 6.

[17] ‘Cisgender’ describes someone whose internal sense of gender corresponds with the sex the person was identified as having at birth - https://www.merriam-webster.com.

[18] At page 6.

[19] Per Member Fitzpatrick in Tafao v State of Queensland & Ors [2018] QCAT 409, [175].

[20] Downer EDI Mining [2013] QCAT 99, [16]. 

[21] https://www.abs.gov.au/statistics/people/crime-and-justice/personal-safety-australia/latest-release#cohabiting-partner-violence-emotional-abuse-and-economic-abuse.

[22] https://www.abs.gov.au/articles/mental-health-findings-lgbtq-australians.

[23] [2014] QCAT 315.

[24] Ibid [15], [20].

[25] [2011] QCAT 593.

[26] [2014] QCAT 315, [16]-[19].

[27] [2011] QCAT 593, [14]-[16].

[28] Work Health and Safety Act 2011 (Qld) ss 5(1)(b), (8), 19(2).

[29] Ibid s 19(2). This would include clients.

[30] https://www.abs.gov.au/media-centre/media-releases/1-5-australians-have-experienced-partner-violence-or-abuse.

[31] https://www.aic.gov.au/media-centre/news/australia-sees-rise-female-intimate-partner-homicide-new-research-report.

[32] https://www.aic.gov.au/media-centre/news/australia-sees-rise-female-intimate-partner-homicide-new-research-report.

[33] https://www.aic.gov.au/publications/sr/sr46.

[34] https://www.courts.qld.gov.au/court-users/researchers-and-public/stats.

[35] AD Act (n 1) s 206.

[36] Human Rights Act 2019 (Qld) s 11.

[37] Human Rights Act 2019 (Qld) s 13(1).

[38] Ibid s 13(2).

Close

Editorial Notes

  • Published Case Name:

    Re: Sera's Women's Shelter Incorporated

  • Shortened Case Name:

    Re: Sera's Women's Shelter Incorporated

  • MNC:

    [2024] QIRC 199

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    13 Aug 2024

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
Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52
2 citations
Jump To
Cite 1 - [2018] QIRC 52
Cite 2 - [2018] QIRC 52
Downer EDI Mining [2013] QCAT 99
3 citations
Jump To
Cite 1 - [2013] QCAT 99
Cite 2 - [2013] QCAT 99
Cite 3 - [2013] QCAT 99
Re Kalwun Development Corporation Ltd [2019] QIRC 141
2 citations
Jump To
Cite 1 - [2019] QIRC 141
Cite 2 - [2019] QIRC 141
Re Protech Personnel Pty Ltd [2019] QIRC 175
2 citations
Jump To
Cite 1 - [2019] QIRC 175
Cite 2 - [2019] QIRC 175
Re The Women's Community Aid Association (Qld) Limited [2011] QCAT 593
4 citations
Jump To
Cite 1 - [2011] QCAT 593
Cite 2 - [2011] QCAT 593
Cite 3 - [2011] QCAT 593
Cite 4 - [2011] QCAT 593
Re The Women's Legal Service Inc [2019] QIRC 60
3 citations
Jump To
Cite 1 - [2019] QIRC 60
Cite 2 - [2019] QIRC 60
Cite 3 - [2019] QIRC 60
Re: Ipswich City Council [2020] QIRC 194
3 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Cite 3 - [2020] QIRC 194
Tafao v State of Queensland & Ors [2018] QCAT 409
2 citations
Jump To
Cite 1 - [2018] QCAT 409
Cite 2 - [2018] QCAT 409
Women's Legal Service Inc [2014] QCAT 315
3 citations
Jump To
Cite 1 - [2014] QCAT 315
Cite 2 - [2014] QCAT 315
Cite 3 - [2014] QCAT 315

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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