Fernwood Women’s Health Clubs (Australia) Pty Ltd [2026] QCAT 271

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Fernwood Women’s Health Clubs (Australia) Pty Ltd [2026] QCAT 271 PARTIES: FERNWOOD WOMEN’S HEALTH CLUBS (AUSTRALIA) PTY LTD (applicant) APPLICATION NO/S: ADL023-26 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 17 June 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The application for an exemption filed by the applicant on 19 February 2026 is allowed. Fernwood Women’s Health Clubs (Australia) Pty Ltd, and all current and future franchisees (‘Franchisees’), are exempt from the application of sections 14, 15, 46, 94, 95 and 127 of the Anti- Discrimination Act 1991 (Qld) in relation to the attribute in section 7(a). The exemption applies only in respect of the opening, promotion and operation of health and fitness clubs by Fernwood and the Franchisees in Queensland. The exemption shall apply to Fernwood and the Franchisees for a period of five years from 14 April 2026 to 14 April 2031. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where discrimination on the basis of sex in the opening, promotion and operation of health clubs run exclusively by and for women – whether exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) should be renewed – whether exemption extended to franchisees – whether exemption extended to club membership and affairs provisions – compatibility with human rights Anti-Discrimination Act 1991 (Qld), s 7, s 14, s 15, s 46, s 94, s 95, s 113, s 127 Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 58 Fernwood Women’s Health Clubs (Australia) Pty Ltd [2021] QCAT 164 -- 1 of 5 -- 2 Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 Beach House Group P/L [2006] QADT 30 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] The applicant, Fernwood Women’s Health Clubs (Australia) Pty Ltd (‘Fernwood’), has applied under s 113 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) for a renewal of its exemption from certain provisions of the AD Act (‘the Application’). The Application was filed on 29 February 2026. [2] Fernwood holds a prior exemption granted by this Tribunal on 14 April 2021 in Fernwood Women’s Health Clubs (Australia) Pty Ltd (‘2021 Decision’).1 That exemption applied to Fernwood (but not its franchisees) for the period 14 April 2021 to 14 April 2026, in respect of ss 14, 15, 46 and 127 of the AD Act. [3] Fernwood operates a franchise business running health and fitness clubs throughout Australia, including in Queensland. Its clubs are for female members only and are staffed exclusively by women. The proposed exemption (‘Proposed Exemption’) seeks renewal of that exemption in amended terms, extending it to Fernwood's franchisees and to ss 94 and 95 of the AD Act (club membership and affairs). [4] On 11 March 2026, the Queensland Human Rights Commission (‘QHRC’) filed submissions. The QHRC does not object to the Application, subject to its submissions regarding the scope of the exemption and its comments on compatibility with the Human Rights Act 2019 (Qld) (‘HR Act’). [5] The matter was heard on the papers pursuant to directions of the Tribunal on 31 March 2026. The Exemption Application [6] Fernwood seeks an exemption in the following terms, as set out in the Proposed Exemption annexed to its submissions: (a) sections 14 and 15 – the pre-work and work areas; (b) section 46 – the goods and services area; (c) sections 94 and 95 – the prospective club membership and club membership and affairs areas; and (d) section 127 – discriminatory advertisements. [7] The exemption is sought in relation to the attribute of sex under s 7(a) of the AD Act, and only in respect of the opening, promotion and operation of health and fitness clubs by Fernwood and its franchisees in Queensland. 1 [2021] QCAT 164. -- 2 of 5 -- 3 [8] The proposed activities of Fernwood pursuant to the Proposed Exemption are to: (a) staff its (and its franchisees') health and fitness clubs exclusively with women; (b) provide its (and its franchisees') services (including membership) to women only; and (c) advertise to prospective workers and prospective clients/members in this manner. Legislative Framework [9] Section 113 of the AD Act provides that the Tribunal may, on application by a person on behalf of that person and other people, or a person included in a class of people on behalf of people in that class, grant an exemption to the person, people or class of people from the operation of a specified provision of the Act. [10] Pursuant to s 113(6), an exemption may be granted on terms the Tribunal provides and apply only in the circumstances of, or in connection with, activities the Tribunal determines. [11] The granting of an exemption is discretionary. There are no express criteria for its exercise. As the Tribunal noted in Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust (‘Surtie’),2 a number of decisions give guidance to the considerations which may be relevant. They include: (a) whether the exemption is necessary; (b) whether it is appropriate and reasonable to grant the exemption; and (c) whether the exemption is in the community interest. [12] The Tribunal is a ‘public entity’ under s 8 of the HR Act and must therefore make its decision in a way compatible with human rights, giving proper consideration to relevant human rights: s 58. Amendments to the Proposed Exemption [13] The QHRC raised three points concerning the scope of the Application. Fernwood has addressed each in its response and has amended the Proposed Exemption accordingly. [14] First, the QHRC noted there is no power to grant an exemption from the HR Act itself. Fernwood acknowledges this; references to HR Act provisions in the Application were intended only to signal their relevance to the Tribunal's consideration, not to seek an exemption from their operation. [15] Second, the QHRC observed that the Proposed Exemption did not appear to extend to Fernwood's franchisees. Fernwood confirms it intends the exemption to apply equally to current and future franchisees operating within Queensland. All matters relied upon in the Application, the affidavit of Donna Hudec (‘Ms Hudec’s Affidavit’), and these submissions apply equally to Fernwood's franchisees as they do to Fernwood itself. The Proposed Exemption has been amended to make this explicit. [16] Third, the QHRC noted the Proposed Exemption did not extend to ss 94 and 95 of the AD Act (club membership and affairs). Fernwood acknowledges the definition of 2 [2017] QCAT 323. -- 3 of 5 -- 4 operating for profit. However, another franchisor of health and fitness centres previously sought an exemption from those provisions: Beach House Group P/L.3 For the avoidance of doubt, Fernwood has included ss 94 and 95 in the amended Proposed Exemption. Considerations in Support of the Application Necessity [17] Fernwood submits, and I accept, that the Proposed Exemption is necessary. In the absence of an exemption, it is uncertain whether some or all of the proposed activities would be covered by the existing exemptions in the AD Act, including ss 104 and 105. Previous decisions of the Tribunal have noted that in such circumstances it is preferable for an exemption to be sought under s 113: Surtie at [16]. An exemption is necessary to provide certainty. [18] I am satisfied that the applicant has shown an arguable case that the circumstances might constitute discrimination to which the Act might apply and, accordingly, that an exemption is necessary. Appropriateness and Reasonableness [19] The evidence before the Tribunal, as set out in Ms Hudec’s Affidavit, establishes that: (a) the purpose of the all-female environment is to promote wellness and enhance the self-esteem, self-confidence and general health of all women; (b) Fernwood provides services specifically designed for and targeted at women, as opposed to mixed-sex services, including programs relating to pelvic floor exercise, post-childbirth recovery, menopause, and female-related surgeries; (c) many women are unable to, or choose not to, exercise in the presence of men, for reasons including religion, psychological trauma, body image and self- confidence; and (d) Fernwood also holds educational seminars specific to women's health issues, including menopause, osteoporosis, and breast cancer, in an environment where women feel safe to ask questions freely. [20] I accept the evidence of the applicant as to the various reasons why a woman might want to attend a female-only fitness centre. In my view those reasons are reasonable and appropriate, consistent with the reasoning in the 2021 Decision at [27]. [21] The Proposed Exemption is a proportionate response. It does not impose an undue burden on those excluded, as the Queensland market contains many mixed-sex fitness centres available to men. The exemption operates only in relation to the opening, promotion and operation of Fernwood's (and its franchisees') clubs in Queensland. Community Interest [22] It is also in the community interest to grant the exemption. The women-only environment enables women who would not otherwise attend a mixed fitness centre to exercise and attend health and wellbeing education seminars specifically designed for women. Members attending Fernwood Centres have reported feeling safer, less 3 [2006] QADT 30. -- 4 of 5 -- 5 vulnerable and more confident. This is consistent with the findings made in the 2021 Decision at [27]. Compatibility with Human Rights [23] As a public entity under s 8 of the HR Act, the Tribunal must make this decision in a way that is compatible with human rights and give proper consideration to relevant human rights: s 58. [24] The Proposed Exemption engages s 15 of the HR Act – Recognition and equality before the law – and s 13 – Human rights may be limited. The human right to equal and effective protection against discrimination is prima facie limited by the exclusion of men on the basis of their sex from attending Fernwood fitness centres. [25] However, under s 13 of the HR Act, a human right may be subject under law to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. [26] In my view, the exemption decision is a reasonable limit on the human right in s 15. The purpose of the limitation – which benefits women who, for medical, religious or psychological reasons, wish to attend and exercise at a female-only fitness centre – is consistent with a free and democratic society based on human dignity, equality and freedom. The exemption is necessary to achieve those purposes. There are no less restrictive or reasonably available ways to achieve the purpose. The reasons for the limitation coincide with the reasons for the women-only centre and I accept those reasons to be reasonable and appropriate: see Fernwood Women’s Health Clubs (Australia) Pty Ltd4 at [35]. [27] Although a person's right to equal and effective protection against discrimination is important, any limit on that right resulting from the exemption is reasonable and demonstrably justified in the circumstances. Conclusion [28] I am satisfied that the Proposed Exemption is necessary, appropriate and reasonable, in the community interest, and compatible with human rights. The application is allowed in the terms set out in the Orders above. 4 [2021] QCAT 164. -- 5 of 5 --