Terrace-Haven Pty Ltd [2022] QCAT 23

Date: 14 January 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Sammon
Human Rights Act 2019 (Qld) Sections: ss 5, 7, 8, 9, 13, 15, 48, 63, sch 1.
Rights Considered: Right to recognition and equality before the law.
Other Legislation: Acts Interpretation Act 1954 (Qld) s 14D; Anti-Discrimination Act 1991 (Qld) ss 6, 7, 45, 46, 76, 77, 81, 82, 83, 104, 113, 174A, 174C, sch 1; Body Corporate and Community Management Act 1997 (Qld) s 180; Health and Other Legislation Amendment Act 2019 (Qld); Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld); Housing Legislation Amendment Act 2021 (Qld); Manufactured Homes (Residential Parks) Act 2003 (Qld); Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164; Retirement Villages Act 1988 (Qld); Retirement Villages Act 1999 (Qld) ss 5, 7, 8, 10, 14, 16, 26, 63, 63A, 63B, 70C, 70D, 70E, 84, 86A, 111, 171A
Keywords: Discrimination

The case concerned an application for an exemption from the Anti-Discrimination Act 1991 (Qld) to allow Terrace-Haven to operate a retirement village with an age restriction. The Tribunal considered that the limitation on the right to equality, which would only be impacted in a small way, could be demonstrably justified in a free and democratic society based on human dignity, equality and freedom by facilitating the freedom of residents to live as they choose, with similarly-aged and similarly-minded people, and enhancing dignity by allowing people to live as they choose, and that there was no less restrictive and reasonably available way to achieve the purpose.

The case concerned an application for an exemption from the Anti-Discrimination Act 1991 (Qld) under section 113 of that Act to allow Terrace-Haven to continue to operate a retirement village with an age restriction for residents of the retirement village for a period of five years.

The Tribunal considered that the combined effect of sections 8, 13 and 48 of the Human Rights Act 2019 (Qld) means an interpretation and application of section 113 of the Anti-Discrimination Act 1991 (Qld) ‘which has the effect of limiting a human right, is “compatible with human rights” if it is reasonable and demonstrably justifiable in accordance with the factors contained in section 13:’ at [70].

The factors contained in section 13(2)(a)-(g) are not exhaustive, but do provide guidance on whether the relevant limit on the human right in section 15 is both reasonable and justifiable: at [71].

The Boeing criteria¹, apart from the first criterion of necessity for the exemption, can be considered to fall within the scope of the factors contained in section 13(2), and it may be that in considering an application for an exemption under section 113, since the commencement of the Human Rights Act 2019 (Qld), the section 13 factors have replaced or subsumed the Boeing criteria as an application for an exemption under section 113 almost inevitably contemplates that the proposed action involves some discrimination under the Anti-Discrimination Act 1991 (Qld) and therefore a limitation to the human right of equal treatment under section 15 of the Human Rights Act 2019 (Qld): at [72].

Under section 13(2)(a), the human right potentially limited by section 113 in this case is the right of equality before the law in section 15 of the Human Rights Act 2019 (Qld), which is ‘a human right of obvious importance and not easily to be traded away:’ at [73].

The purpose of the limitation of the human right, which is the effect of a successful application under section 113, is to grant an exemption from what would otherwise be unlawful discrimination under the Anti-Discrimination Act 1991 (Qld): at [74]. The application of section 113 depends on the exercise of the discretion of the Tribunal: at [74].

The Tribunal considered that much will depend on the purpose of the exemption applied for, which in this case is to allow Terrace- Haven to restrict accommodation at the Complex to people over the age of 50: at [74]. Terrace-Haven wished to seek the exemption so that the community at the Complex comprising residents all over the age of 50 can continue to live with similarly-aged and similarly-minded people; and to avoid the financial burdens under the Retirement Villages Act 1999 (Qld), with the obligations under the buyback provisions, and the new administrative requirements, in a community in which certainly some of the residents cannot afford those additional financial burdens, and in which many receive income only from the aged pension: at [75].

Section 13(1) and section 13(2)(b) include the concepts of human dignity and freedom which, on the facts of this application, find recognition in the freedom of the residents of the Complex to live as they choose, with similarly-aged and similarly- minded people: at [76]. The concept of dignity is also enhanced in allowing people to live as they choose: at [76]. These concepts and values ‘have special weight in this case, where there are elderly residents, many of whom have limited financial means, resulting in restriction to make other choices about where to live:’ at [76].

In this case, part of the balancing process, which is the subject of section 13(2), is a balance between some limitation on the right to equality before the law contained in section 15 of the Human Rights Act 2019 (Qld) with promotion of the values of dignity and freedom in section 13: at [77].

On application of section 13(2)(c), there is a direct relationship between the limitation of the human right to equality before the law and the purpose of the limitation in this case, which is to continue an age restriction on accommodation in the Complex: at [78]. The age restriction cannot be continued without an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) if Terrace-Haven deregisters as a retirement village under the Retirement Villages Act 1999 (Qld): at [78].

No exemption from the buyback scheme existed and even if it did it would not relieve the residents of the cost of the other administrative requirements introduced into the Retirement Villages Act 1999 (Qld): at [79]. Moreover, the argument that the purpose of providing a safe environment that appeals to older people can be achieved through alternate legitimate means such as the types and style of dwelling, the provision of facilities and activities, and targeted marketing would have little application where, in this case, the units were constructed many years ago and any marketing would be limited to only those units which need to be sold because of the individual circumstances of the aged residents: at [80]. Therefore, the Tribunal was satisfied there is no less restrictive and reasonably available way to achieve the purpose: at [79].

The Tribunal considered that the importance of the purpose of the limitation of the human right to equal treatment is to enable the residents of the Complex to live as they have done for many years under the Retirement Villages Act 1999 (Qld) as it was prior to the recent amendments: at [81]. In this case, the purpose of the exemption will help the residents achieve the values of human dignity and freedom, which in the particular circumstances of this case, should be given considerable weight: at [81].

The importance of the limitation to allow exemptions to the age discrimination ground under the Anti-Discrimination Act 1991 (Qld) is something that has, in effect, been recognised by the past decisions of the Tribunal, as well as the reasonableness of the limitation of application of the Anti-Discrimination Act 1991 (Qld). This will be relevant for the purposes of the ‘reasonable limits’ on a human right for that expression in section 13(1) of the Anti-Discrimination Act 1991 (Qld), and of allowing the continuation of an age restriction on accommodation for older people, where that limitation has been in existence for an appreciable period of time: at [82].

Section 13(2)(f) requires an assessment of the importance of preserving the human right in section 15 of the Human Rights Act 2019 (Qld), taking into account the nature and extent of the limitation on the human right: at [83]. The exemption under s 113 applied for in this case is limited to Terrace-Haven, which consists of only 44 units, so the limitation of the human rights of equality under the law will only be impacted in a small way by any exemption granted under sections 113: at [83].

Grant of an exemption to the Anti-Discrimination Act 1991 (Qld) to allow an age restriction limited to the Complex would amount to a confined limitation on the right to equality before the law contained in section 15 of the Human Rights Act 2019 (Qld), against the importance of the purpose of the application, which ‘will allow similarly-aged and similarly-minded people to enjoy the human dignity and freedom of choice they have made to live at the Complex with an age restriction that has existed for many years:’ at [84].

Thus, the Tribunal considered that the age limitation applied for by Terrace-Haven under section 113 could be reasonably justified in a free and democratic society based on human dignity, equality and freedom under section 13(1): at [85].

Visit the judgment: Terrace-Haven Pty Ltd [2022] QCAT 23

[1] Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21