Community Enterprise Queensland [2025] QCAT 325

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Community Enterprise Queensland [2025] QCAT 325 COMMUNITY ENTERPRISE QUEENSLAND (applicant) APPLICATION NO/S: ADL104-24 MATTER TYPE: Anti-Discrimination matter DELIVERED ON: 22 August 2025 HEARING DATE: 12 August 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for exemption is granted for a period of five (5) years under section 113 of the Anti- Discrimination Act 1991 (Qld) from the application of sections 46, 124 and 127 of that Act, in connection with: (a) The restriction of the sale of no and low alcohol beverage products to only persons over the age of 18 years of age in all current and future stores operated by Community Enterprise Queensland; (b) The placing of signage near no and low alcohol beverage products advising of the restriction; and (c) The request for photo identification from potential customers seeking to purchase no and low alcohol beverage products where there is any doubt that the potential customer is over 18 years of age. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – where applicant seeks exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to restrict the sale of no and low alcohol beverage products to persons aged 18 years and over, to place signage to that effect near the products, and to request photo identification from potential customers of those products – whether an exemption under s 113 should be granted – where Human Rights Act 2019 (Qld) applies – whether any limitation on human rights reasonable and justified Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 60B, s 60T Anti Discrimination Act 1991 (Qld), s 7, s 46, s 113, s 124, s 127 -- 1 of 9 -- 2 Human Rights Act 2019 (Qld), s 13, s 15 Liquor Act 1992 (Qld), s 4B Body Corporate for Village Green (Caloundra) [2015] QCAT 101 Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21 Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782 Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 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 [1] The applicant, Community Enterprise Queensland (‘CEQ’), is a not-for-profit Queensland statutory body1 responsible for providing goods and essential services to the Torres Strait, Northern Peninsula Area and remote Aboriginal communities in Northern Queensland.2 CEQ operates 30 retail stores supplying essential goods and services to those communities. In most places where CEQ operates, their supermarkets are the only grocery store in the community. [2] CEQ wants to be able to prevent the sale of no and low alcohol beverage products to persons under the age of eighteen in its stores. The applicant describes no and low alcohol beverage products as the range of alcohol-like beverages which are not Liquor as defined by s 4B of the Liquor Act 1992 (Qld). In order to be able to do this the applicant submits that it requires an exemption from the operation of certain provisions of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’). It is the application for an exemption pursuant to s 113 of the AD Act that is before me. The exemption application [3] CEQ seeks an exemption from ss 46, 124 and 127 of the AD Act for five (5) years to allow it to: (a) restrict the sale of no and low alcohol beverage products to minors, being persons under eighteen (18) years of age; (b) place signage near no and low alcohol beverage products advising that the products are not for sale to anyone under the age of 18 years; 1 Statutory Bodies Financial Arrangements Act 1982 (Qld). 2 Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 60B. -- 2 of 9 -- 3 (c) request photo identification from customers seeking to purchase no and low alcohol beverage products where there is any doubt as to the age of the customer. [4] The grounds on which the exemption is sought are: (a) That the exemption is necessary because the order sought does not fall within any of the exemptions for discrimination in goods and services set out in Division 4, Subdivision 2 of the AD Act. (b) The applicant is concerned about the potential health and wellbeing impacts of the sale of no and low alcohol beverage products on the communities in which the applicant’s shops are located. (c) There is insufficient research into the health and wellbeing impacts of the sale of no and low alcohol beverage products, and it wishes to restrict their sale to adults, pending further research. (d) 91 of 92 community residents who live where the applicant’s stores are located support the application for the exemption.3 (e) Community members surveyed were concerned about no and low alcohol beverage products becoming a gateway to alcohol consumption for young people and on impacts on future drinking behaviours. (f) The application for exemption is supported by experts in the area of public health. [5] The applicant relied on a three (3) page letter addressed to the Commissioner signed by Dr Cassandra Wright, Program Lead, Alcohol and other Drugs, Menzies School of Health Research; Ms Mia Miller, Research Officer and Convenor of the International Research Network on No and Low Alcohol Products, Menzies School of Health Research and Professor Paula O’Brien, Director of Health Law and Ethics Network, Melbourne Law School, University of Melbourne.4 [6] The Queensland Human Rights Commission provided helpful submissions about the application and the process for deciding it.5 The Commission does not oppose the application but considered the exemption should contain conditions replicating those in the decision made by the Australian Human Rights Commission in a similar matter involving the sale of ‘near non-alcoholic, but alcohol-like beverages by 7 Holdings Pty Ltd, 7-Eleven Stores Pty Ltd and Convenience Holdings Pty Ltd.6 Those conditions are similar in terms to those listed above at [3]. In making this decision I confirm that I have taken into account the submissions made by the Commission.7 Statutory overview [7] The Tribunal, under s 174A of the AD Act, may grant exemptions from the AD Act. Section 113 gives the tribunal power to grant an exemption to a person or class of people from the operation of a specified provision of the AD Act. Section 113(6) provides: 3 Application for exemption from AD Act filed on 14 November 2024, Appendix A. 4 Application for exemption from AD Act filed on 14 November 2024, Appendix B. 5 AD Act, s 113(2). 6 QHRC submissions filed on 17 December 2024 at 6. 7 AD Act, s 113(2)(b). -- 3 of 9 -- 4 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. [8] The granting of an exemption is discretionary. There are no express criteria for its exercise. It has been held that a statutory discretion which has the potential to affect rights (as this does) is not to be regarded as absolute and unfettered. [9] The general approach is that the extent of a discretionary power is determined by reference to the subject matter, scope and purpose of the statute under which it arises. [10] In circumstances where the extent of the power has been said to be constrained only by the objects, scope and purpose of the relevant Act, it has been held that to apply a self-imposed framework for the exercise of the discretion to be applied in every case is a ‘course fraught with error’. This is because unless the framework captures all the considerations that potentially apply given the objects, scope and purpose of the relevant Act, the Tribunal will be imposing a constraint on its exercise of the discretion that was not imposed by Parliament.8 [11] That said, as I observed in Fernwood Womens Health Clubs (Australia) Pty Ltd9 a number of decisions give guidance as to the considerations which may be relevant, including: (a) whether the exemption is necessary;10 (b) whether it is appropriate and reasonable to grant the exemption;11 and (c) whether the exemption is in the community interest.12 [12] In my view, following Fernwood and Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust13 in exercising the discretion the Tribunal may take into account “any considerations it considers relevant to justify conduct which would otherwise be unlawful under the Act, providing these considerations are consistent with its purpose, scope and objects which include the existence of the exemptive provisions.”14 [13] The Tribunal, in deciding an exemption application, acts in an administrative capacity and in doing so, must apply s 58 of the Human Rights Act 2019 (Qld) (‘HR Act’). Is the exemption necessary? 8 Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261. 9 [2021] QCAT 164 at [24], citing Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 at [20]. 10 Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21, [13]. 11 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782. 12 Body Corporate for Village Green (Caloundra) [2015] QCAT 101; Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21, [12.2]; Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198. 13 [2017] QCAT 323. 14 Ibid at [23]. -- 4 of 9 -- 5 [14] In order to establish an exemption is necessary, an applicant need only show an arguable case that the circumstances might constitute discrimination to which the Act might apply.15 [15] Section 46, the provision from which exemption is sought, provides: 46 Discrimination in goods and services area (1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person— (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services. (2) In this section, a reference to a person who supplies goods and services does not include an association that— (a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and (b) does not carry out its purposes for the purpose of making a profit. [16] The Commission raised the issue as to whether CEQ comes within s 46(2) and accordingly, whether it falls outside the operation of s 46. [17] CEQ in its further submissions contended that s 46(2) did not apply to CEQ because: (a) the applicant is a statutory body and body corporate and is not an “association”; and (b) a part of the applicant’s purpose is to apply its ‘surplus’ (profit) in the way set out in ss 60B(c) and 60Y of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld). [18] The word “association” is not defined in the AD Act. “Association” is defined broadly in the Associations Incorporation Act 1981 (Qld) to mean an “association, society, body or other entity formed, or carried on, for a lawful purpose”. [19] CEQ is a body corporate established under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld)16 and has functions and powers provided for under that Act. Section 60B provides that CEQ has the following functions: (a) to act as a commercial enterprise for the general convenience or benefit of the residents of the communities in which Community Enterprise Queensland performs its functions; 15 Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21, [13.1]. 16 Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 60A(2). -- 5 of 9 -- 6 (b) to provide the communities mentioned in paragraph (a) with access to a range of food, drinks and household items essential for a healthy life at a fair price; (c) to apply its operating surplus or assets to promote, support and improve its services and the general welfare, including the knowledge and skills, of the Aboriginal and Torres Strait Islander residents of the communities mentioned in paragraph (a). Examples of supporting residents— • encouraging the development of trade, commerce and businesses in the communities • supporting trade, commerce and businesses carried out by residents of the communities • providing support for educational or health initiatives, local organisations and community programs or activities [20] CEQ is also a statutory body under the Statutory Bodies Financial Arrangements Act 1982 (Qld)17 and a registered charity. [21] In my view, the meaning of ‘association” does not extend to statutory bodies like CEQ. I agree with the submissions made by CEQ that it has none of the usual indicia of an association in that it was established by an Act of Parliament and not by a collection of individuals; does not have members; does not hold elections, and its board is appointed by the Minister; has a board and a CEO; its rights, powers and objectives are established by statute, not by a constitution and those rights, powers and objectives may only be amended by an Act of Parliament. [22] I note for completeness that it is unclear on the evidence before me whether CEQ carries out its purposes for the purpose of making a profit. [23] Accordingly, in my view, it is unclear whether the exemption in s 46(2) applies. In those circumstances, I consider that the relevant conduct would arguably constitute discrimination on the basis of age in the supply of goods and, for that reason, an exemption is necessary. [24] I am satisfied that an exemption from s 124, which deals with requests for information on which unlawful discrimination might be based, is necessary given that CEQ may need to ask potential customers for photo ID. I am satisfied that an exemption from s 127, which deals with discriminatory advertisements, is also necessary given CEQ may wish to advertise that the sale of no and low alcoholic beverages is restricted to those over 18 years of age. Should the exemption be granted [25] The applicant submits that the purpose of restricting the sale of no and low alcohol drinks is to protect the health and wellbeing of children in the communities in which its stores are located. The applicant relies on a submission in support of the exemption written by public health and law researchers at the Menzies School of Health Research 17 Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 60T(1). -- 6 of 9 -- 7 (Dr Cassandra Wright and Ms Mia Miller) and the Melbourne Law School at University of Melbourne (Professor Paula O’Brien).18 [26] In summary, the submission makes the following points: (a) No and low alcohol products (the products) mimic alcohol in naming, appearance, smell and taste and often also in packaging, labelling and marketing (for example, Heineken Lager and Heineken 0.00). In this sense they can be seen as extensions of existing alcohol brands. (b) It has not been demonstrated that the products are safe for consumption by minors. (c) Researchers and advocates in the public health field have several concerns around the products and how they may impact alcohol consumption and norms around alcohol use, including: (i) The products may promote the use of alcohol-like products in situations where alcohol would not usually be present (such as while driving or at work), which may serve to normalise the use of alcohol in these contexts. (ii) The products may introduce children to the taste and branding of alcohol products, which may together influence earlier uptake and use of real alcohol products among young people. Alcohol use is currently the leading cause of the disease burden among young Australians and poses significant long term harms including cancer, cardiovascular disease and liver disease. Alcohol use is also a key factor in the three leading causes of death among adolescents: unintentional injury, suicide and homicide. (iii) An Australian study carried out with minors found that 37% of those surveyed had consumed the products and 81% of that group had purchased the products at a supermarket or local store. Concerns raised by young people themselves as part of the study included that the products may act as a gateway to alcohol consumption. (iv) Evidence suggests that Australian parents are worried that the products could normalise alcohol among minors and act as a precursor to alcohol consumption.19 (v) Research on alcohol marketing and promotions has found that allegiance to a particular brand (which could arise from drinking the products that carry brands of major alcohol companies) increases the odds of alcohol initiation among non-drinkers.20 (vi) Given the likeness of the products to alcoholic beverages (in terms of naming, appearance, smell, taste, packaging, labelling and marketing), the known harms of consumption of alcohol by minors, and the overall lack 18 Application for Exemption filed on 14 November 2024, Appendix B. 19 NJ Harrison et al, ‘They start on the Zero-Alcohol and They Wanna Try the Real Thing: Parents views on Zero-Alcohol Beverages and their use by Adolescents’ (2024) 48(3) Australian and New Zealand Journal of Public Health 100119. 20 N Critchlow et al, ‘Awareness of Alcohol Marketing, Ownership of Alcohol Branded Merchandise and the Association with Alcohol Consumption, Higher-Risk Drinking and Drinking Susceptibility in Adolescents and Young Adults: A cross-sectional survey in the UK’ (2019) 9(3) BMJ Open e025297. -- 7 of 9 -- 8 of evidence about the products and their risk to minors, a precautionary approach to the availability of these products is strongly indicated. (vii) This approach is consistent with the approach taken by the Australian Human Rights Commission in the decision granting an exemption for three years to 7 Holdings Pty Ltd, 7-Eleven Stores Pty Ltd and Convenience Holdings Pty Ltd where it found: Ultimately, the Commission considers that any discriminatory impact on people under the age of 18 years is outweighed by the need to take a precautionary approach with these products in light of their potential harms. [27] I am prepared to accept, although the evidence is limited, that there are potential risks to minors if the sale of these products is not restricted. I am satisfied that the sale of the products may act as an encouragement to minors to seek the consumption of alcohol products with similar branding and marketing. I also accept that the sale of the products may normalise drinking among young people and promote a culture of alcohol consumption. [28] On the other hand, I am conscious that to grant an exemption from the operation of a protection in the AD Act is a serious step to take. In taking it I must give proper consideration to that right21 and to whether a decision to grant an exemption (and thereby prohibit the sale of the products to minors) limits that right only to the extent that is reasonable and demonstrably justified in accordance with s 13 of the HR Act.22 [29] In applying s 13 I am required to consider whether the limitation on the right in s 15 is demonstrably justified in a free and democratic society based on human dignity, equality and freedom (referred to as ‘the proportionality test’). [30] Young people under the age of 18 have an equal right to be protected from discrimination in the provision of goods. To permit CEQ to refuse to sell them no or low alcohol drinks is to discriminate against them on the basis of their age. The issue is whether the proposed limitation of that right (by granting the exemption) exceeds what is necessary to achieve the legitimate purpose, being to protect the health and wellbeing of children in the communities in which CEQ’s stores are located. [31] In my view, it does not exceed what is necessary to achieve the aim. In my view, the aim, being the protection of the health and wellbeing of young people who may seek to purchase these products, is a legitimate purpose and the exemption does not exceed what is necessary to achieve that purpose. [32] Accordingly, I allow the exemption in the following terms: The application for exemption is granted for a period of five (5) years under section 113 of the Anti-Discrimination Act 1991 (Qld) from the application of sections 46, 124 and 127 of that Act, in connection with: (a) The restriction of the sale of no and low alcohol beverage products to only persons over the age of 18 years of age in all current and future stores operated by Community Enterprise Queensland; 21 HR Act, s 58(1)(b). 22 HR Act, s 58(1)(a), s 8. -- 8 of 9 -- 9 (b) The placing of signage near no and low alcohol beverage products advising of the restriction; and (c) The request for photo identification from potential customers seeking to purchase no and low alcohol beverage products where there is any doubt that the potential customer is over 18 years of age. -- 9 of 9 --