ARC Disability Ltd, Re [2026] QIRC 134

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: ARC Disability Ltd [2026] QIRC 134 PARTIES: ARC Disability Ltd (Applicant) CASE NO: AD/2026/9 PROCEEDING: Application for exemption DELIVERED ON: 20 April 2026 MEMBER: HEARD AT: Power IC On the papers ORDER: The application for exemption is declined. CATCHWORDS: EQUAL OPPORTUNITY AND DISCRIMINATION – EXEMPTION – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – where application seeks exemption with respect to lack of impairment – whether attribute is included in s 7 – where lack of impairment is not an attribute in accordance with s 7 – exemption unnecessary – application refused HUMAN RIGHTS – application for exemption from provisions of the Anti-Discrimination Act 1991 (Qld) – nature of application considered – where decision does not alter or impact existing human rights – decision not incompatible with human rights LEGISLATION: Anti-Discrimination Act 1991 (Qld) s 7, s 13, s 14, s 15, s 25, s 104, s 113, s 124, 127 Human Rights Act 2019 (Qld) s 3, s 5, s 8, s 13, s 48, s 58 -- 1 of 16 -- 2 CASES: Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52 Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 38 Re the Women's Legal Service Inc [2019] QIRC 060 Re: Ipswich City Council [2020] QIRC 194 Re: Protech Personnel Pty Ltd [2019] QIRC 175 Re: Sera's Women's Shelter Incorporated [2024] QIRC 199 Tafao v State of Queensland & Ors [2018] QCAT 409 Women's Legal Service Inc [2014] QCAT 315 Reasons for Decision Background [1] On 30 January 2026, ARC Disability Ltd ('the Applicant') filed an application for an exemption from the operation of the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). [2] The application was filed with an accompanying affidavit from Mr Benjamin Keast, CEO of the Applicant stating, inter alia, the following: I make this affidavit in support of the organisation's Form 83 application seeking an exemption under the Anti-Discrimination Act 1991 (Qld) to permit the identified recruitment of a Lived Experience Practice Manager. The purpose of the exemption is to allow the organisation to lawfully advertise, select and appoint a person who has lived experience of disability as an inherent requirement of the role. The Lived Experience Practice Manager role has been established to strengthen our organisation's human rights framework, service delivery quality, participant feedback processes, safeguarding systems, and disability-informed practice leadership. -- 2 of 16 -- 3 The role requires the person to draw upon their personal lived experience to: • Provide practical insight into the impact of policies, service delivery, and staff actions • Guide participant-centred approaches • Enhance human rights-aligned service design • Identify barriers and risks specific to people with disability • Lead continuous improvement activities • Support complaint resolution processes • Engage meaningfully with participants, families, carers and advocates. These functions cannot be performed adequately or authentically without the Applicant having lived experience of disability. This is a necessary and reasonable measure to support quality, safety and compliance requirements for disability service provision. The role aligns with • The Human Rights Act 2019 (Qld) • NDIS Quality and Safeguards Commission expectations • Participant safeguarding standards • Industry models of co-design and lived-experience leadership. [3] The Commission issued orders directing that, inter alia, the Applicant, the Queensland Human Rights Commission, and any interested parties file and serve in the Industrial Registry written submissions in relation to the Application. Relevant legislative provisions The AD Act [4] Section 7 of the AD Act prohibits discrimination on the basis of a list of attributes, including ‘impairment’. [5] Section 13 of the AD Act provides: 13 Explanatory provisions (prohibitions) (1) A person must not discriminate in the work or work-related area if a prohibition in sections 14 to 23 applies. (2) This subdivision does not apply to discrimination in connection with superannuation or insurance. (3) Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75. -- 3 of 16 -- 4 [6] Section 14 of the AD Act relevantly provides: 14 Discrimination in the pre-work area A person must not discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered, including, for example, term about when the work will end because of a person's age; or (d) in failing to offer work; or (e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (f) in developing the scope or range of such a program. [7] Section 15 of the AD Act provides: 15 Discrimination in work area (1) A person must not discriminate— (a) in any variation of the terms of work; or (b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or (c) in dismissing a worker; or (d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (e) in developing the scope or range of such a program; or (f) by treating a worker unfavourably in any way in connection with work. (2) In this section— dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise. [8] Section 113 of the AD Act relevantly provides: 113 Tribunal (1) The tribunal, on application by— (a) a person, on the person's own behalf, or on behalf of the person and another person or other people; or (b) 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or (c) a person or people included in a class of people on behalf of the people in that class; may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act. Note – See also section 174C in relation to the tribunal's powers for deciding the application. … -- 4 of 16 -- 5 (6) An exemption – (a) may be granted subject to such terms as the tribunal provides; and (b) may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and (c) is to be granted for a specified period of not more than 5 years. (7) An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted. [9] Section 124(1) of the AD Act prohibits the request of unnecessary information on which unlawful discrimination might be based. The Human Rights Act 2019 (Qld) [10] In Re: Ipswich City Council,1 Deputy President Merrell determined that the Commission acts in an administrative capacity when deciding an exemption under s 113 of the AD Act. Deputy President Merrell also concluded that the combined effect of s 5(2)(a) and s 48 of the Human Rights Act 2019 (Qld) ('the HR Act') is that the Commission must comply with s 58 of the HR Act when considering s 113 of the AD Act.2 [11] The primary objectives of the HR Act are outlined in s 3: 3 Main objects of the Act The main objects of this Act are— (a) to protect and promote human rights; and (b) to help build a culture in the Queensland public sector that respects and promotes human rights; and (c) to help promote a dialogue about the nature, meaning and scope of human rights. [12] Section 5 of the HR Act states: 5 Act binds all persons (1) This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. (2) This Act applies to— (a) a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and (b) the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and (c) a public entity, to the extent the public entity has functions under part 3, division 4. 1 [2020] QIRC 194. 2 Ibid, [36]. -- 5 of 16 -- 6 [13] Section 8 of the HR Act provides that an act, decision or statutory provision is compatible with human rights if the act, decision or provision does not limit a human right, or limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13. [14] Section 48 of the HR Act provides: 48 Interpretation (1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. (2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights. (3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision. (4) This section does not affect the validity of— (a) an Act or provision of an Act that is not compatible with human rights; or (b) a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made. (5) This section does not apply to a statutory provision the subject of an override declaration that is in force. [15] Section 58 of the HR Act provides: 58 Conduct of public entities (1) It is unlawful for a public entity— (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. … (5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes but is not limited to— (a) Identifying the human rights that may be affected by the decision; and (b) Considering whether the decision would be compatible with human rights. (6) To remove any doubt, it is declared that— (a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and (b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1). -- 6 of 16 -- 7 [16] The Commission must give proper consideration to human rights relevant to the decision and must interpret s 113 in a way that is most compatible with human rights.3 Submissions of the parties Preliminary submissions of the Queensland Human Rights Commission [17] In accordance with s 113 of the AD Act, the Commission provided the Queensland Human Rights Commission ('QHRC') copies of the Application and affidavit material and sought submissions about the substance of the application. [18] The QHRC provided a preliminary submission stating that they considered that recruiting for a position on the basis the person must have an impairment is not prima facie unlawful discrimination under the AD Act, and if the conduct is not prima facie unlawful discrimination, an exemption is not necessary. [19] The QHRC further submits that: • the Applicant must satisfy the tribunal that the conduct would arguably contravene the AD Act without the exemption. The granting of an exemption is not a trivial matter nor routine as it deprives citizens and claimants of rights and actions they would otherwise have;4 • the AD Act prohibits discrimination on the basis of attributes in s 7 in any of the prescribed areas of activity. The Applicant's recruitment proposal would be in the pre-work and work areas of activity; • given that the affidavit in support of the application says that lived experience of disability is an inherent requirement of the role and without the exemption the Applicant cannot lawfully require Applicant's to be a person with disability, it seems the Applicant considers the relevant attribute is impairment, under s 7(h). Impairment is defined in the dictionary at Schedule 1 of the AD Act; • the Applicant's proposal is to exclude from recruitment people who do not have lived experience of impairment. While it may be unlawful to exclude a person because of an impairment, it is not unlawful to exclude a person because they do not have an impairment. The absence of impairment is not within the definition of impairment in the AD Act, and it is not a protected attribute; 3 Human Rights Act 2019 (Qld) s 58. 4 Re: Children by Choice Association Inc. [2018] QIRC 153, [7] referring to Downer EDI Mining [2013] QCAT 99, [16]. -- 7 of 16 -- 8 • the conduct for which the exemption is sought would not contravene the AD Act, and therefore the exemption is not necessary. It is not appropriate to grant an exemption that is not necessary; and • if, however, the Applicant intended to limit eligibility for the position to a type of impairment, an exemption would be necessary. [20] The QHRC submits the following regarding human rights: • When deciding an application for exemption from the operation of the AD Act, the tribunal acts in an administrative capacity and must comply with s 58(1) of the HR Act. This means the tribunal must properly consider human rights and make a decision that is compatible with human rights. • Where an exemption would limit a human right such as the right to equality and freedom from discrimination, the limitation must be reasonable and demonstrably justified in accordance with the test in s 13 of the HR Act. Submissions of the Applicant [21] The Applicant is a registered, not-for-profit disability services provider based in Cairns who provides support to children, young people and adults with a disability. [22] The Applicant is registered with NDIS as a service provider and the NDIS Quality and Safeguards Commission. [23] In relation to the application, the Applicant submits the following: • The Applicant is seeking to strengthen the Applicant's human rights framework, service delivery quality participant feedback processes, safeguarding systems, and disability-informed practice leadership. • Part of that commitment involves the recruitment of a Lived Experience Practice Manager ('the role'). The role would require the Applicant to appoint a person who has lived experience of impairment as an inherent requirement of the role. • At all times, the Applicant has maintained a cautious and respectful approach in recruiting for the role. Accordingly, on 30 January 2026, the Applicant made an application to the Queensland Industrial Relations Commission ('the QIRC') pursuant to s 113 of the AD Act. -- 8 of 16 -- 9 • The purpose of the application is to obtain certainty on whether the Applicant organisation may lawfully advertise, select and appoint a person who has lived experience of impairment as an inherent requirement of the role. The Applicant has carefully considered the submissions made by other interested parties, however, still considers that it is appropriate to have clarity regarding recruiting for the role, whether it is through an exemption under the Act, or a determination that the application is unnecessary. • The QHRC contends that other sections may be relevant to seek exemption from the operation of including ss 14, 15, 124 and 127. • To the extent that any of those other sections are also found to be relevant, the Applicant respectfully seeks corresponding further exemptions. • The Applicant submits that an exemption is necessary, reasonable and appropriate in a practical sense. By recruiting for the role as defined in Mr Keast's affidavit, the Applicant organisation may be subject to a complaint for the reason that the impairment as a condition of eligibility for the role is open to various interpretations in the community. Job applicants who do not have a lived experience of disability are excluded from applying or progressing through the recruitment process, and may be caught by section 14 (pre-work arena). • The public advertising of the role and collection of information from applicants regarding their disability or lived experience of impairment engages s 124 and s 127 of the AD Act, in circumstances where the applicants seek transparency from the recruitment process. • Authorities recognise that the purpose of the exemption power is not confined to circumstances where conduct is clearly unlawful. The Applicant maintains its cautious and respectful approach in recruiting for the role and seeks to avoid any possible breach of the Act where conduct is not clearly lawful. • The Tribunal is not required to refuse to grant an exemption unless it is able to determine that a particular exemption applies. On the authorities, an Applicant can gain a s 113 exemption regardless. • Following reference to Member Venables in Exemption application re: Palmpoint Pty Ltd,5 the Applicant submits that in addition to any possible defences under the Act, an exemption would provide certainty, protection and favourable risk management to the Applicant in the fact of any such complaint or litigation. 5 [2006] QADT 12. -- 9 of 16 -- 10 • If the QIRC concludes that the proposed recruitment process is already lawful under the Act, the Applicant respectfully submits that the QIRC should make a determination to that effect or otherwise dismiss the application on the basis that an exemption is unnecessary. • The Applicant's primary purpose is to ensure that recruiting for the role is clearly lawful. Submissions of the Queensland Council of Unions ('QCU') [24] The submissions of the QCU are summarised below: • It appears that the application is underpinned by a misunderstanding of the operation of the AD Act. It seems that the Applicant is seeking to have the Commission grant an exemption on the basis they are exempt pursuant to ss 104 and 105, or a genuine occupational requirement in accordance with s 25 of the AD Act. • However, ss 25, 104 and 105 of the AD Act are not used in that way. They are defences to a complaint of discrimination as per s 205. • Further, the Applicant has not provided the basis upon which they say their circumstances warrant an exemption pursuant to s 113 of the AD Act, over and above the statutory exemptions that they submit already apply to their circumstances. • The Applicant has not specified which parts of the AD Act are to be the subject of the proposed s 113 exemption. An exemption of this nature would typically be granted from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act, and would typically apply in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment, selection, appointment, and employment of the relevant position. • These matters represent deficiencies in the application, and they are similar deficiencies observed by Dwyer IC in Re: Sera's Women's Shelter Incorporated.6 • Where there is sufficient certainty about a defence under the AD Act, an exemption has been held to be unnecessary.7 • On the basis of the Applicant's submissions, it appears they contend that a sufficiently certain defence exists under ss 104 and 105 of the AD Act. 6 [2024] QIRC 199. 7 Sundale Limited [2019] QCAT 83, [31]. -- 10 of 16 -- 11 • However, should the QIRC hold the view that those statutory exemptions do not already apply to the Applicant, for the reasons that follow, the QCU submits that the Applicant has a sufficiently certain defence under s 25 and 106 of the AD Act and an exemption is therefore unnecessary. • In effect, the Applicant seeks to discriminate against people without an impairment. Section 7(h) of the AD Act prohibits discrimination on the basis of the attribute of impairment. Lack of impairment is not a prohibited ground of discrimination. • As submitted by the Applicant, NDIS Practice Standards require them to embed lived experience into their organisational and service delivery framework. The role appears to be designed with that requirement in mind. In these circumstances, lived experience appears to be a genuine occupational requirement for the role, and a sufficiently certain defence would exist under s 25 of the AD Act. • Section 106 of the AD Act permits the Applicant to do an act that is specifically authorised by an existing provision of another Act. Namely, s 45 of the Disability Discrimination Act 1992 (Cth) which does not render it unlawful to do an act that is reasonably intended to, inter alia, afford persons with disability access to facilities, services or opportunities to meet their special needs in relation to accommodation, the provision of services, the administration of Commonwealth programs, or their capacity to live independently. This is relevant to the NDIS services the Applicant provides. • The Applicant's reliance on the sufficiently certain defences provided by ss 25 and 106 would accord with the Australian Human Rights Commission's Guidelines for the targeted recruitment of people with disability. • The purpose of s 113 of the AD Act is to allow persons the protection and security of a shield against complaints of unlawful discrimination in circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the AD Act, as per Anglo Coal (Moranbah North Management) Pty Ltd & Anor.8 • Proper consideration of this purpose weighs against the granting of the exemption sought by the Applicant. Statutory exemptions already apply to the Applicant. It would therefore appear that the proposed actions of the Applicant do not constitute a prima facie case of unlawful discrimination. • In these circumstances, the exemption ought to be considered unnecessary. 8 [2018] QIRC 052, [9]. -- 11 of 16 -- 12 Further submissions of the Queensland Human Rights Commission [25] The QHRC refers to authorities cited in the Applicant's submissions and notes that in those cases there was an arguable case that there would be a contravention of the AD Act in the form of a prima facie case of unlawful discrimination. [26] The QHRC's position has been that an exemption should not be refused on the basis that an exemption in the AD Act might apply, citing as examples Gold Coast 2018 Commonwealth Games Corporation,9 and Fernwood Womens Health Clubs (Australia) Pty Ltd.10 [27] In such cases, including Exemption application re: Palmpoint Pty Ltd,11 an exemption would provide certainty to the Applicant and the persons who might be affected by the activity. It would also mean that the Commission could rightly refuse to accept a complaint. Otherwise, the Applicant would need to argue and prove to a tribunal that a statutory exemption applied in the circumstances. [28] The QHRC further submits that: • discrimination on the basis that a person does not have the attribute of impairment is not prima facie unlawful under the AD Act; • a complaint to the Commission would not meet the requirement of indicating an alleged contravention and would not be capable of acceptance in accordance with s 136(b) of the AD Act; • given that excluding people who do not have an impairment would not be unlawful, advertising the position would not offend the prohibition on publishing or displaying an advertisement that indicates a person intends to contravene the AD Act in s 127; • asking for information as to the existence of an impairment to qualify for the role would fall within the defence of asking for information that was reasonably required for a purpose that did not involve discrimination in s 124(3). However, an exemption from the operation of s 124 of the AD Act would provide certainty for the Applicant and those affected by the recruitment; and • although a complaint of impairment discrimination would be outside the QHRC's jurisdiction, a determination of the tribunal to the effect that the proposed recruitment is not prima face unlawful would also provide certainty to the Applicant. 9 [2017] QIRC 38, [16]. 10 [2021] QCAT 164, [14]. 11 [2006] QADT 12. -- 12 of 16 -- 13 Consideration The discretion granted by s 113 of the AD Act [29] Section 113 of the AD Act grants a discretion to the QIRC (‘the Tribunal’), to grant an exemption from the operation of a specified provision of the Act. [30] The Applicant submits that the application seeks exemptions from the sections identified by the QHRC including ss 14, 15, 124 and 127. [31] The exercise of the discretion must include a discharge of the QIRC's obligations in accordance with s 58 of the HR Act.12 [32] Vice President O'Connor outlined the matters to be considered in the exercise of the discretion in Re: Protech Personnel Pty Ltd,13 where he made the following observations: [9] Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered: 1. Whether the exemption is necessary; 2. Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought; 3. Whether the exemption is in the community interest; 4. Whether any other persons or bodies other than the Applicant support the application; 5. Whether it is reasonable and appropriate to grant the exemption; and 6. The effect of not granting the exemption. [citations omitted] Is the exemption necessary? [33] I note the submissions from the QHRC and the QCU regarding the application's reference to ss 25 and 104 of the AD Act. As outlined by Dwyer IC in Re: Sera's Women's Shelter Incorporated,14 s 25 and s 104 are effectively defences to be pleaded in response to a complaint and do not form part of the consideration of an exemption application. 12 Re: Ipswich City Council [2020] QIRC 194. 13 [2019] QIRC 175, [9]. See also Re the Women’s Legal Service Inc [2019] QIRC 060, [18]-[19]. 14 [2024] QIRC 199, [75]. -- 13 of 16 -- 14 [34] Having regard to the requirements of the role as outlined in the attachment to the Affidavit of Mr Keast, it appears that having lived experience of impairment is an inherent requirement of the role in accordance with s 25. In addition, the recruitment and appointment of an employee with lived experience of impairment appears consistent with the provision regarding welfare measures in s 104. These provisions will likely act as a shield from a complaint against the recruitment of a candidate with lived experience to the exclusion of others. [35] I note the consideration in Women's Legal Service Inc, where it was determined that:15 … Conduct which may appear initially to breach the provisions of the Anti-Discrimination Act may in fact be excused from liability due to the presence of specific exemptions or defences in the Act. If there is a specific exemption, a general exemption under section 113 is not required. … [36] Notwithstanding the above, I accept the QHRC's submissions that an exemption should not be refused solely on the basis that a specific exemption might apply.16 [37] The Applicant indicates a desire for certainty, protection and favourable risk management in the face of any complaint or litigation. This is understandable in circumstances where the Applicant’s reliance on the provisions in ss 25 and 104 may be open to challenge. [38] There is however, a much clearer basis upon which the Applicant can be satisfied that restricting recruitment to the role only to applicants with an impairment is not unlawful. [39] As submitted by both the QCU and the QHRC, discrimination on the basis that a person does not have the attribute of impairment is not prima facie unlawful under the AD Act. [40] The Applicant proposes to conduct its recruitment and selection process to exclude candidates who do not have lived experience of disability. The recruitment and selection process is in the pre-work and work areas of activity, and accordingly will occur in areas in which discrimination is prohibited pursuant to s 14 and s 15 of the AD Act. The recruitment process is likely to engage s 127 in that it may involve advertising of the role and s 124 is likely to be engaged on the basis that information will be asked of applicants during the recruitment process. The application is considered as requesting an exemption from the operation of ss 14, 15, 124 and 127. [41] Section 7 of the AD Act outlines the attributes upon which discrimination is prohibited. Specifically, s 7(h) prohibits discrimination on the basis of impairment. Having considered the definition of impairment in Schedule 1 of the AD Act, I am satisfied that the Applicant intends to refer to the attribute of impairment in the application, with the intention that people who do not have lived experience of an impairment be excluded from recruitment to the role. 15 [2014] QCAT 315, [15]. 16 Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 38, [16]; Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164, [14]. -- 14 of 16 -- 15 [42] The absence of an impairment is not a protected attributed in s 7 of the AD Act. While it may be unlawful to exclude a person because of an impairment, it is not unlawful to exclude a person because they do not have an impairment. [43] Accordingly, it is not necessary to grant an exemption for conduct that would not contravene the AD Act. [44] I accept the submission by the QHRC that if the Applicant intended to limit eligibility for the position to a type of impairment, an exemption would be necessary. It does not appear on the material filed that the Applicant intends to limit the role to a type of impairment, and on the basis that it is simply the lived experience of an impairment, no exemption is necessary. [45] Following from a determination that excluding applicants without an impairment is not unlawful, it follows that advertising the position would not contravene the prohibition on discriminatory advertisements pursuant to s 127. [46] It is also my view that asking for information as to the existence of an impairment to qualify for the position would not be unlawful on the basis that the information is reasonably required for a purpose that does not involve discrimination in accordance with s 124(3). Where the purpose of asking for information regarding an impairment is to ascertain whether someone has a lived experience with disability, such a request would not be unlawful given that it is reasonably required for the purpose of recruitment to a role that does not involve discrimination. [47] The effect of not granting the exemption is that the Applicant remains bound by the statutory provision of the AD Act. In circumstances where discrimination on the basis that a person does not have the attribute of impairment is not prima facie unlawful under the AD Act, a complaint of that nature would not be capable of acceptance by the QHRC regardless of whether the exemption was granted or not. [48] If a claim were brought for an alleged contravention of s 124(1) following a request for information regarding the existence of an impairment, it would be open to not accept the claim on the basis that the 'non-existence' of an impairment is not an attribute upon which unlawful discrimination might be based. If the claim was accepted, the defence provided for in s 124(3) would be available to the Applicant. [49] For the foregoing reasons, and primarily because an exemption is not necessary in the circumstances outlined, I do not consider it appropriate to grant the exemption. -- 15 of 16 -- 16 Human Rights [50] A decision regarding an application for exemption requires the Commission to act in its administrative capacity, thereby requiring compliance with s 58(1) of the HR Act. [51] Whether a person's human rights may be affected by the granting of an exemption under s 113(1) of the AD Act can be determined by reference to the effect of the exemption if it is to be granted. [52] Section 58(1)(b) of the HR Act also requires proper consideration to be given to a human right relevant to the decision. The human rights engaged in this application are the right to equal protection of the law without discrimination, and the right to equal and effective protection from discrimination. Such rights would be subject to a limitation if the exemption were granted in that the recruitment process would discriminate against people without an impairment and those without an impairment would not be afforded the right to equal and effective protection of the law without discrimination. [53] Consideration must then be given to determine whether the granting of the exemption would limit the human rights engaged and whether the limitation was reasonable and demonstrably justified in accordance with s 13 of the HR Act. [54] In circumstances where it has been determined that the exemption will not be granted on the basis that it is not necessary, there is no resulting limitation on human rights. There is therefore no requirement to determine if a limitation is reasonable and demonstrably justified as no limitation exists. In accordance with s 8(a) of the HR Act, this decision is compatible with human rights on the basis that it does not limit a human right. [55] In accordance with s 58(5)(b), I do not consider that rejecting the application for an exemption is not compatible with human rights. Order 1. The application for exemption is declined. -- 16 of 16 --