Burleigh Town Village Pty Ltd (3) [2022] QCAT 285

Date: 27 July 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Roney QC
Human Rights Act 2019 (Qld) Sections: ss 9, 13, 15, 22, 24, 58.
Rights Considered: Property rights; Right to peaceful assembly and freedom of association; Right to recognition and equality before the law.
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; Tenancy and Social Housing; Public Law Considerations: Interpretation; Commercial

The applicant applied for an exemption pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) for the purposes of owning and operating a manufactured home park supplying special accommodation solely for persons aged 50 and older. The Tribunal weighed the application against the infringement of rights under the Human Rights Act 2019 (Qld) and subsequently refused the application.

Case Note:
The applicant sought an exemption from several provisions of the Anti-Discrimination Act 1991 (Qld) to own and operate a manufactured home park reserved exclusively for accommodating persons aged 50 and older, on the grounds this was a special purpose under the Anti-Discrimination Act 1991 (Qld) because it provided benefits for the aged.

The Tribunal confirmed it was acting in an administrative capacity in deciding the exemption application and, in that capacity, was considered a public entity for the purposes of the Human Rights Act 2019 (Qld) (section 9(4)(b) of the Human Rights Act 2019 (Qld)). The Tribunal was therefore required to give proper consideration to, and make a decision in a way that was compatible with, human rights pursuant to section 58 of the Human Rights Act 2019 (Qld).

The Tribunal accepted that the application did affect the rights to equality and to equal protection of the law without and against discrimination set out in section 15 of the Human Rights Act 2019 (Qld). The Tribunal then considered whether the activity of owning and operating a manufactured home park supplying special accommodation solely for persons aged 50 and older was a special measure pursuant to section 15(5) of the Human Rights Act 2019 (Qld) and therefore compatible with human rights, ultimately concluding this was not established in this case: at [102]-[112].

The Tribunal then applied the justification test in section 13 of the Human Rights Act 2019 (Qld). After considering arguments including in relation to housing affordability, compatibility, security, like-mindedness and shared values, the Tribunal was not persuaded that the applicant had demonstrated that the age limitation was a legitimate and proportionate limitation on the right to equality and to equal protection of the law without and against discrimination: at [113]-[126].

The Tribunal was not persuaded that the exemption would limit the right to freedom of association under section 22(2) of the Human Rights Act 2019 (Qld) as owners were free to associate with whomever they wish, both inside and outside the facility: at [129].

The Tribunal considered the extent to which the exemption would limit the property rights in section 24 of the Human Rights Act 2019 (Qld). The Tribunal accepted that those property rights included the right not to be exposed to substantial restrictions on a person’s ability to derive profits from their property, that granting the exemption would engage this right by limiting residents’ ability to freely dispose of their home to those aged below 50, and that this was not a legitimate and proportionate limitation pursuant to section 13 of the Human Rights Act 2019 (Qld): at [144]-[157].

The application was refused.

Visit the judgment: Burleigh Town Village Pty Ltd (3) [2022] QCAT 285