Date: 14 April 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Traves
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 15, 58
Rights Considered: Right to recognition and equality before the law
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7, 14, 15, 46, 113, 127, 174A
Keywords: Discrimination

Fernwood Womens Health Clubs (Australia) Pty Ltd (‘Fernwood’) sought an exemption from the operation of provisions 14, 15, 46 and 127 of the Anti-Discrimination Act 1991 (Qld): at [2]. Fernwood was concerned that their women’s-only fitness model risked a complaint being brought against them for direct discrimination against men: at [12].

The Tribunal considered the benefits of providing an opportunity for women to reach fitness goals uninhibited by the presence of men, the importance of wellbeing education seminars specifically designed for women, and the community interest in permitting women to attend a women-only gym when they would not otherwise attend a mixed gym: at [27].

The Tribunal considered itself bound by section 58 of the Human Rights Act 2019 (Qld) as it was acting as a public entity in deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld): at [29]. The Tribunal clarified that both the way in which the Tribunal made the exemption decision, and the exemption decision itself, must be compatible with human rights, and that proper consideration must be given to relevant human rights: at [28].

The Tribunal noted there were no submissions to suggest that it was not compatible with human rights to determine the matter on the papers instead of by way of oral hearing: at [31]. In considering whether to grant the exemption, the Tribunal identified that granting the exemption may affect the right to recognition and equality before the law (section 15 of the Human Rights Act 2019 (Qld)): at [32]. The Tribunal found that this right was limited by the exclusion of men on the basis of their sex and considered whether this human right was limited only to the extent that was reasonable and demonstrably justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [33]. The Tribunal held that the purpose of limiting the right to recognition and equality before the law, which benefited women who wished to attend a female-only exercise centre for medical, religious or psychological reasons, was consistent with a free democratic society: at [35]. The Tribunal found that the exemption was necessary and appropriate, and no other less restrictive or ‘reasonably available ways’ existed to achieve that purpose: at [35]. 

The Tribunal was satisfied that the exemption was compatible with human rights and granted the exemption to Fernwood for a period of five years: at [37].