Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228

Date: 26 June 2023
Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Roney KC
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 15, 24, 48, 58
Rights Considered: Right to recognition and equality before the law, Property Rights.
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7(f), 45, 46, 76, 77, 82, 83, 113; Manufactured Homes (Residential Parks) Act 2003 (Qld); Retirement Villages Act 1999 (Qld); Charter of Human Rights and Responsibilities Act 2016 (Vic) s 7; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 127
Keywords: Discrimination

The case concerned an application for the renewal of an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate a manufactured home park reserved for people over 50. In making its determination to not grant the renewal, the Tribunal acknowledged that the application affected the right to recognition and equality before the law (section 15) and property rights (section 25) under the Human Rights Act 2019 (Qld).

The application was brought before the Tribunal for the renewal of an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) for the purposes of operating a manufactured home park for people over 50 years of age. The effect of the exemption sought would be to allow the park owner to discriminate based on age for accommodation, goods and services and in the disposition of land. The Tribunal acknowledged that as it was acting in an administrative capacity, it was a public entity such that s 58 of the Human Rights Act 2019 (Qld) would apply. Accordingly, the Tribunal considered human rights that may be affected by the renewal of the exemption and whether the decision would be compatible with human rights.

It was accepted that providing an environment to appeal to people over 50 could be achieved through an alternate legitimate means. The placing of an age restriction of 50 years old and excluding those of any age below that threshold was recognised to be disproportionate to the purpose of providing affordable accommodation for elderly retirees. Accordingly, the Tribunal considered that the age restriction was not a legitimate and proportionate limitation on the right to recognition and equality before the law (section 15) pursuant to the Human Rights Act 2019 (Qld).

The Tribunal then considered whether there was any reasonable limitation on property rights (section 24) under the Human Rights Act 2019 (Qld). ‘Property rights’ were recognised to include the right to own property and not be exposed to substantial restrictions on a person’s ability to derive profits from their property. A deprivation of such right was considered to include a substantial restriction on the enjoyment of exclusive possession or a person’s ability to dispose of, destroy, or transfer the property or the capacity to derive profits from it but not a mere diminution in the value of real property: at [107]. The exemption would operate to prevent a person under 50 from owning a home in the manufactured home park, which was considered to limit their protected right to own property as referred to in s 24(1) of the Human Rights Act 2019 (Qld) on a basis of which the Anti-Discrimination Act 1991 (Qld) regarded as unlawful discrimination: at [100].

Moreover, the Tribunal considered that each home in the park would be the ‘property’ of each owner, and their respective interests in their home would include the ownership use, enjoyment and right to disposal of the property. If granted, the exemption would limit the property rights of people, preventing some from owning a home in the park, and the property rights of people who have homes in the park: at [113]. This limitation was recognised to be not reasonable and demonstrably justified, in accordance with s 13 of the Human Rights Act 2019 (Qld): at [113].

The Tribunal considered that the policy objectives purported to justify the exemption were not limitations that were reasonable and demonstrably justified in accordance with s 13 of the Human Rights Act 2019 (Qld): at [114]. An exemption that would limit the present residents’ ability to freely dispose of their homes at a market value that was not artificially diminished, was not a legitimate and proportionate limitation on the human right which it affected: at [115]. The Tribunal ultimately decided not to grant a renewal.

Visit the judgement: Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228