Background

A recent case in the Queensland Civil and Administrative Tribunal is an example of the ability of non-profit organisations to seek an exemption for periods of up to five years from specific provisions of the Anti-Discrimination Act 1991 (Qld) (Act).

The Queensland Civil and Administrative Tribunal (QCAT) may grant a temporary exemption, under section 113 of the Act, from the operation of a specified provision of the Act to allow conduct that might otherwise be discriminatory—for example, restricting accommodation to single people or recruiting for women or men only.

A person applying for an exemption must show that the conduct will likely contravene the Actand is not covered by specific or general exemptions.

QCAT has to be satisfied the exemption is necessary, so the applicant has to show an arguable case that the conduct would be unlawful under the Anti-Discrimination Act.

If QCAT is satisfied an exemption is necessary, QCAT will consider:

  • whether there are any non-discriminatory ways of achieving the purpose for which the exemption is sought;
  • whether there is support for granting the exemption;
  • whether it would be appropriate and reasonable to grant the exemption;
  • whether the exemption is in the community interest;
  • whether the exemption is compatible with human rights.

QCAT must also consider any submissions the Human Rights Commissioner might make about the application.

Brisbane Housing Company Ltd, a not-for-profit community housing provider established to provide affordable housing to low-income persons in Brisbane, applied for a 5-year exemption from several provisions of the Act.

In this instance, an example of conduct that may be discriminatory was [at 25]:

I understand BHC’s purpose in managing who may occupy a studio or apartment and when they may be required to leave is to ensure that the accommodation it provides is appropriate to the circumstances and needs of its tenants and prospective tenants and to others in the complex. If the accommodation is not appropriate or ceases to be appropriate BHC wants to ensure it can operate with flexibility, without risk of a discrimination claim being made against it. I infer that BHC is concerned such a claim may result in a person occupying a studio or apartment which is not appropriate to their circumstances and may conflict with the interests of others in the complex.”

Brisbane Housing Company Ltd sought an exemption order for 5 years from the operation of section 81 (prohibition on discrimination in the accommodation area), section 82 (pre-accommodation), section 83 (accommodation), section 124 (unlawful request for information), and section 127 (discriminatory advertising) of the Act in relation to:

  • attributes referred to in s 7 of the Act, being relationship status (s 7(b)), pregnancy (s 7(c)), parental status (s 7(d)), family responsibilities (s 7(o)), association with, or relation to, a person identified based on any of these attributes (s 7(p)); and
  • attributes referred to in s 7 of the Act, being age (s 7(f)) and impairment (s 7(h)) insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone.

After considering the submissions from Brisbane Housing Company Ltd and the view of the Queensland Human Rights Commission, QCAT found that the exemption was appropriate and reasonable.  There were no other non-discriminatory ways of ensuring its purpose of providing appropriate, affordable, low-cost housing to people was met. It also noted that Brisbane Housing Company Ltd had to comply with government funding conditions and regulations under the Housing Act 2003 (Qld).

Cases

Brisbane Housing Company Ltd (No 1) [2024] QCAT 5, Brisbane Housing Company Ltd (No 2) [2024] QCAT 6 and Brisbane Housing Company Ltd (No 3) [2024] QCAT 7 concerning different properties on similar issues were handed down by QCAT on the same day.

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