Sunshine Coast Regional Council [No 2] [2021] QCAT 439

Date: 22 December 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Sammon
Human Rights Act 2019 (Qld) Sections: Preamble, ss 5, 7, 8, 9, 13, 15, 28, 48, 58, 63, schedule 1
Rights Considered: Right to recognition and equality before the law; Cultural rights of Aboriginal and Torres Strait Islander peoples
Other Legislation: Acts Interpretation Act 1954 (Qld) s 14D; Anti-Discrimination Act 1991 (Qld) ss 6, 7, 21, 22, 81, 104, 113, 174A, 174C, schedule 1; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164.
Keywords: Discrimination

This matter concerned an application for exemption under the Anti-Discrimination Act 1991 (Qld) concerning a proposed policy with the effect of allowing the applicant to grant permits to conduct certain tourism businesses on Council land solely to Aboriginal and Torres Strait Islander people. Ultimately, the Tribunal dismissed the application on the basis it was not necessary to grant an exception as it was already possible for the proposed policy to be implemented without unlawful discrimination or limitation of human rights.

The proposed policy the applicant was seeking to implement would introduce a new category of permit for commercial activities that require access to community land for the purpose of delivering Aboriginal and Torres Strait Islander cultural tourism experiences: at [19]. Considering the operation of such a policy would discriminate against people who are not Aboriginal or Torres Islander, the applicant applied to the Tribunal for an exemption to the Anti-Discrimination Act 1991 (Qld).

The Tribunal accepted that section 48 of the Human Rights Act 2019 (Qld) applied when considering an application under s 113 of the Anti-Discrimination Act 1991 (Qld), such that the statutory provisions needed to be interpreted in a way that is consistent with their purpose and compatible with human rights: at [26]. The Tribunal went on further to identify and engage the right to recognition and equality before the law (section 15) due to its connection to the Anti-Discrimination Act 1991 (Qld): at [30] - [31]. Specific attention was paid towards s15(5), which excepts ‘measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination’ from constituting discrimination, and meant that the balancing test within s13 of the Human Rights Act 2019 (Qld) was not required: at [32]. However, the Tribunal did continue on to apply s 13 and consider whether the potential limit was in these circumstances reasonable and justifiable; at [45] - [47]. The Tribunal balanced this limitation of s 15 with the promotion of the cultural rights of Aboriginal and Torres Strait Islander peoples in s 28 of the Human Rights Act 2019 (Qld): at [51] - [52]. It acknowledged a direct relationship between the limitation of the human right to equality before the law and the promotion of Indigenous culture in relation to s13(2)(c): at [53]. The Tribunal went on to apply the remaining subsections of s 13 to the facts of the case and the application of the Anti-Discrimination Act 1991 (Qld): at [53]-[59].

The Tribunal dismissed the application on the basis it was not necessary to grant an exemption in the circumstances as it was already possible for the proposed policy to be implemented without unlawful discrimination or a limitation of the human right to recognition and equality before the law under s15 of the Human Rights Act 2019 (Qld): at [61]-p63].

Visit the judgment: Sunshine Coast Regional Council [No 2] [2021] QCAT 439