Miami Recreational Facilities Pty Ltd ([2021]) QCAT 378

Date: 3 November 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Gordon
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 15, 48, 58
Rights Considered: Right to recognition and equality before the law
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 82, 83, 113, 127, 174C; Property Law Act 1974 (Qld) s 121; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 127; Retirement Villages Act 1999 (Qld) s 26; Charter of Human Rights and Responsibilities Act 2016 (Vic) s 7
Keywords: Discrimination

This case relates to application for an exemption from the operation of sections of the Anti-Discrimination Act 1991 (Qld) that prohibit discrimination on the basis of age in order to maintain a residency requirement of being over the age of 50. The Human Rights Act 2019 (Qld) is discussed in relation to the right of recognition and equality before the law, and how it’s definition of ‘discrimination’ differs from that provided by the Anti-Discrimination Act 1991 (Qld).

The applicant applied to the Tribunal seeking a renewal of an existing exemption from provisions of the Anti-Discrimination Act 1991 (Qld) that would prevent them from discriminating potential residents on the basis of age: at [1]. The applicant has been operating with its over 50s age restriction for 40 years, but this was the first renewal application since the Human Rights Act 2019 (Qld) has come into force.

The Queensland Human Rights Commission submitted concerns about exemptions that allow age restrictions in accommodation citing reasons as exemptions must be temporary; housing affordability is a concern for all, regardless of age; segmenting housing by age is inconsistent with an inclusive age-friendly community; exemptions should not be based off of negative stereotypes about children and young people; affordable and accessible accommodations for seniors can be achieved through other non-discriminatory means such as under the Retirement Villages Act 1999 (Qld); age-restricted residencies do not necessarily cater for age-related disability; and that young persons could benefit from this accessible accommodation and facilities as well: at [8]. The Commissioner opposed the stereotypical assumption that the residents would be less safe if those below 50 were able to become residents and behavioural issues could be dealt with in different means: at [9]. They further submitted that the application was not acting within section 15(5) of the Human Rights Act 2019 (Qld) to assist or advance persons or groups of persons disadvantaged because of discrimination: at [11].

The Tribunal discussed the Human Rights Act (2019) Qld in relation to the rights prescribed under s15 and goes on to examine the definition of discrimination within the Human Rights Act (Qld) 2019: at [49] - [51]. The Tribunal found that the protection against discrimination in the Human Rights Act 2019 (Qld) was very wide and extended beyond the application of ‘discrimination’ in the Anti-Discrimination Act 1991 (Qld): at [52] - [55]. The Tribunal then went on to apply section 13 as a proportionality test, referring to relevant case law, the explanatory notes and the Charter of Human Rights and Responsibilities Act 2016 (Vic) to solidify their understanding and application of the test; at [58] - [71]. In applying the test, the Tribunal found the purpose consistent with a free and democratic society but agrees with the Commissioner’s submissions that the argument that permitting individuals under the age of 50 would make the residency less safe and protected is weak and based on stereotypical assumptions about young people: at [77]. The Tribunal however found that the limitation helped provide affordable housing to persons aged over 50 and there are no less restrictive and reasonable available ways to achieve the same purpose: at [42] - [43] and [19] - [33]. The Tribunal also held the submission that the segmented housing is not consistent with an age-friendly community and does not promote a healthy society as not directly applicable to this accommodation, as the residents are visited by younger family members, and there are services provided to the residents from young people: at [84].

In making its decision, the Tribunal gave more weight to the effect of refusing the application to its current residents and held that the balance came out in favour of renewing the exemption: at [85] - [88]. The application was granted for a further 5-year exemption from the provisions of the Anti-Discrimination Act 1991 (Qld): at [108] - [109].

Visit the judgment: Miami Recreational Facilities Pty Ltd ([2021]) QCAT 378