Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 PARTIES: FERNWOOD WOMENS HEALTH CLUBS (AUSTRALIA) PTY LTD (applicant) APPLICATION NO/S: ADL068-20 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 14 April 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: 1. The application for an exemption filed by the applicant on 13 November 2020 is allowed. 2. Fernwood Womens Health Clubs (Australia) Pty Ltd is exempt from the application of sections 14, 15, 46 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in section 7(a). 3. The exemption applies only in respect of the opening, promotion and operation of health and fitness clubs by Fernwood Womens Health Clubs (Australia) Pty Ltd in Queensland. 4. The exemption shall apply to Fernwood Womens Health Clubs (Australia) Pty Ltd for a period of five years from 14 April 2021 to 14 April 2026. 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 from pre-work, work area, in the provision of goods and services and advertising should be granted Anti-Discrimination Act 1991 (Qld), s 7, s 14, s 15, s 46, s 113, s 127, s 174A Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 58 Re Ipswich City Council [2020] QIRC 194 Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323 APPEARANCES & REPRESENTATION: -- 1 of 8 -- 2 Applicant: Self-represented 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] Fernwood Womens Health Clubs (Australia) Pty Ltd (Fernwood) operates a franchise to run and itself runs a number of fitness clubs and centres throughout Australia, including Queensland. These fitness clubs are for female members only and are staffed exclusively by females. [2] Fernwood filed an application for an exemption from provisions of the Anti- Discrimination Act 1991 (Qld) (AD Act) on 13 November 2020. Fernwood was granted an exemption to enable it to operate all-female fitness clubs and centres by decision of the Anti-Discrimination Tribunal Queensland in 2003.1 The exemption was from the application of ss 14, 15, 46 and 127 of the AD Act in relation to the attribute in s 7(a) for the period 27 November 2003 to 26 November 2008. [3] Due to an oversight the exemption was not re-applied for upon its expiration in November 2008. [4] The exemption is sought on the same terms and for the same reasons as the exemption granted in 2003. [5] The Tribunal, under s 174A of the AD Act has, as one of its functions, to grant exemptions from the AD Act. The Tribunal has power under s 113 of the AD Act, on application, to exempt a person, people or class of people from the operation of a specified provision of the Act. [6] Before deciding the application, the Tribunal must give the Queensland Human Rights Commission (QHRC) a copy of the application and a copy of the material filed in support of the application and must have regard to any submission made by the QHRC on the application, including a submission on the process for considering the application.2 [7] On 27 November 2020 the Tribunal emailed the Anti-Discrimination Commission Queensland (ADCQ) a copy of the application and supporting affidavit by Ms Diana Williams, founder and director of Fernwood. [8] The Queensland Human Rights Commission (QHRC) provided its submissions to the Tribunal and to the applicant on 7 January 2021. The Commission submitted it was not appropriate to consider the application as there was an outstanding complaint with the Commission against Fernwood at that time. [9] On 21 January 2021 correspondence was received by the Tribunal and the Commission from Fernwood advising that the complaint had been resolved and responding to questions raised by the Commission in its letter of 7 January 2021. [10] On 29 January 2021 the Tribunal directed the Commission to provide its submissions regarding the application for an exemption and for Fernwood to provide any 1 Exemption application re: Fernwood Women’s Health Club Pty Ltd [2003] QADT 27. 2 AD Act, s 113(2). -- 2 of 8 -- 3 submissions in reply. On 11 February 2021 the Commission filed and served its submissions. No further submissions were filed by Fernwood. The exemption application [11] Fernwood seeks an exemption in the following terms: The exemption is sought by the applicant and its representative to exempt from the operation of section 14, 15, 46 and 127 of the Anti-Discrimination Act 1991 (the Act) in relation to: (i) The attribute of sex, referred to in s 7(a) of the Act; and (ii) In respect to opening and operating health and fitness clubs in Queensland which would provide its services to women only, to staff its centres with women only and to advertise those matters. [12] The grounds on which the exemption is sought are: 1. The exemption is necessary because unless an exemption applies, the Fernwood fitness club could give rise to a complaint by a man that Fernwood is directly discriminating against men. 2. The exemption is reasonable and appropriate because the women-only fitness club will give women an opportunity to reach fitness goals without feelings of embarrassment and self-consciousness as some women are self- conscious when training in the presence of men. Equality of opportunity could be improved by providing services to women in a different manner to man (sic). 3. The exemption is in the community interest, and is supported by members in the community. 4. There are similar cases granted in Queensland and other jurisdiction (sic) (Beach House Group Pty Ltd [2006] QADT 30; Fernwood Women’s Health Club Pty Ltd [2003] QADT 27; GRS Networking Pty Ltd (t/a Sportsworld) [2013] QCAT 563; Fernwood Womens Health Clubs Pty Ltd [2005] VCAT 246). [13] Ms Williams, in her affidavit, describes the special kinds of exercises and programs at Fernwood that have been specifically designed for women, including, for example, pelvic floor exercises to reduce incontinence after childbirth, exercises to relieve the symptoms of menopause or for women recovering from female related surgeries like breast cancer surgery.3 Other programs take into account that women are not usually as strong as men and their bodies not conducive to vigorous exercise classes and programs offered by mixed fitness centres.4 The fitness centres also hold regular education seminars, again, specifically directed to women and their health issues.5 Ms Williams also outlines reasons why women may not wish to exercise in the presence of men. These include religious reasons, for example Muslim women, as well as psychological reasons due to having been subjected to rape, or to sexual or physical assaults. There may also be reasons associated with body image and a lack of self- confidence.6 3 Statement by Diana Williams dated 11 November 2020, [6]. 4 Ibid. 5 Ibid, [7]. 6 Ibid, [8]. -- 3 of 8 -- 4 The Commission’s submissions [14] The Commission supported the approach of granting an exemption, even in circumstances where the female only fitness clubs were arguably a welfare measure under s 104 or an equal opportunity measure under s 105, in which case there would not be a breach of the AD Act and, accordingly, no need for an exemption. [15] The Commission concluded that the reasons for granting an exemption were appropriate and reasonable. In considering the application of the Human Rights Act 2019 (Qld) the Commission submitted that, unless s 15(5) of the HR Act applied, the Tribunal must be satisfied the limitation on the equal and effective protection against discrimination of males is reasonable and justified in accordance with s 13 of the HR Act. [16] The Commission did not object to the granting of the exemption. Consideration [17] Section 103 of the AD Act provides that it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in ss 104 to 113 applies. [18] Section 104 provides: A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. [19] Arguably the people for whose benefit Fernwood provide the fitness centres may comprise a group under s 104 with an attribute for whose welfare the act was designed. It is noted that the statutory examples to s 104 include a “high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks”. [20] Section 105 provides: (1) A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act. [21] It is not clear how the provision of a female only fitness club promotes equal opportunity for women. [22] The applicant did not make any submissions regarding the application of s 104 or s 105. I note that in the previous decision of the Anti-Discrimination Tribunal granting an exemption to the Fernwood Women’s Health Club Pty Ltd, it was held: Section 113 gives an open-ended discretion to the Tribunal in granting an exemption. In my view, if an exemption is not granted, there is an arguable case that there would be a breach of the Act; cf Re Golden Casket [2002] QADT 16. I say this having taken into account the general exemptions for discrimination contained, in particular, in s 104 dealing with welfare measures to benefit the members of a group with an attribute for whose welfare the Act was designed and s 105 dealing with equal opportunity measures for a group of people with an attribute.7 7 Exemption application re: Fernwood Women’s Health Club Pty Ltd [2003] QADT 27, [8]. -- 4 of 8 -- 5 [23] Although it may be arguable that s 104 applies, there is uncertainty about its application, particularly when there have not been submissions directed to the application of the provision. It is preferable, in those circumstances, from the applicant’s perspective, to apply for an exemption under s 113.8 [24] The granting of an exemption is discretionary. There are no express criteria for its exercise. The principles to be applied in the exercise of the discretion under s 113 were considered in Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust9 where it was held: [18] A statutory discretion which has the potential to affect rights is not regarded by the courts as absolute and unfettered. The general rule is that the extent of a discretionary power is to be determined by reference to the subject matter, scope and purpose of the statute under which it arises. [19] In Commissioner for Equal Opportunity v ADI Limited the Western Australia Court of Appeal held: Where the Parliament has conferred upon an administrative tribunal a discretion which is constrained only by the objects, scope and purpose of the Act conferring that discretion, the interposition by the Tribunal of a framework for the exercise of that discretion by reference to limited and particular questions, which are to be applied to every case is a course fraught with risk of error. Unless the questions posed pursuant to the self imposed framework embrace all considerations which could possibly fall within the objects, scope and purpose of the Act, by restricting itself to those questions, the Tribunal will be imposing upon itself a constraint to the exercise of the discretion which was not imposed by the Parliament and will, to that extent, be at risk of error. [20] That having been said, a number of decisions give some guidance to the considerations which may be relevant. They include whether the exemption is necessary; whether it is appropriate and reasonable to grant the exemption; and whether the exemption is in the community interest. (footnotes excluded) [25] In my view, and applying Surtie, 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.”10 [26] 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.11 [27] In deciding whether to grant the discretion I make the following observations. 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. It is also in the community interest that women, who would not otherwise attend a mixed fitness centre, are able to exercise and attend health and wellbeing 8 Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323, [16] citing Exemption application re: J & D Richards Developments Pty Ltd [2005] QADT 13, [28]-[32]. 9 [2017] QCAT 323. 10 Ibid, [23]. 11 Exemption application re: Boeing Australia Holdings Pty Limited [2003] QADT 21, [13.1]. -- 5 of 8 -- 6 education seminars specifically designed for women at a fitness centre exclusively for women. [28] The application of the HR Act is also relevant. It applies both to the way a decision is made and to the decision itself. Section 58 of the HR Act provides that it is unlawful for a public entity to make a decision in a way that is not compatible with human rights or in making a decision, to fail to give proper consideration to a relevant human right. An exception exists if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a Commonwealth or State law or otherwise under law. [29] I accept that, for the purpose of granting an exemption under s 113 of the AD Act, the Tribunal is acting as a public entity.12 The functions of the Tribunal under the AD Act are set out in s 174A of the AD Act. In Re Ipswich City Council,13 in relation to s 175B, the equivalent provision setting out the functions of the Industrial Relations Commission, it was held: [27] Some the (sic) functions conferred on the Commission by s 174B clearly involve the exercise of judicial power. For example, the power to hear and decide complaints of unlawful discrimination made under the Act involves the making of a binding and authoritative determination between different parties as to their legal rights and duties according to existing legal principles. [28] By contrast, the function of granting an exemption from the Act in relation to work‑related matters does not involve the exercise of judicial power because it does not involve making a binding and authoritative determination between different parties as to their existing legal rights and liabilities. Furthermore, the granting of an exemption in relation to work-related matters does not involve the exercise of legislative power because it does not involve a determination of the content of a law as a rule of conduct and does not involve making a declaration as to power, right or duty. [29] For these reasons, the determination of whether or not to grant an exemption under s 113(1) of the Act involves the Commission acting in an administrative capacity, in that it involves the exercise of power of applying the law in a particular case. [30] I agree with that approach. Consequently, in determining whether to grant the exemption sought by Fernwood, s 58 of the HR Act must be applied. [31] There were no submissions suggesting the Tribunal had acted in a way that was not compatible with human rights, for example, by determining the matter on the papers and not by way of oral hearing. The question then becomes one of identifying human rights that may be relevant to the Tribunal’s exemption decision, and to consider whether its decision would be compatible with human rights. [32] The human right potentially affected by the proposed exemption decision is the right to equality and equal protection of the law without and against discrimination as set out in s 15 of the HR Act. Section 15 of the HR Act provides: 15. Recognition and equality before the law (1) Every person has the right to recognition as a person before the law. 12 Re Ipswich City Council [2020] QIRC 194. 13 [2020] QIRC 194. -- 6 of 8 -- 7 (2) Every person has the right to enjoy the person’s human rights without discrimination. (3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination. (4) Every person has the right to equal and effective protection against discrimination. (5) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. [33] 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. However, a decision is defined in s 8(b) of the HR Act to be compatible with human rights, if it limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13. [34] Section 13 of the HRA provides: 13. Human rights may be limited (1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. (2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant- (a) the nature of the human right; (b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom; (c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose; (d) whether there are any less restrictive and reasonably available ways to achieve the purpose; (e) the importance of the purpose of the limitation; (f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right; (g) the balance between the matters mentioned in paragraphs (e) and (f). [35] 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 decision and its necessary limit on the right of men not to be discriminated against, is necessary to achieve the purposes behind the exemption. 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 have above accepted those reasons to be reasonable and appropriate. In my view, although a person’s right to equal and effective protection against discrimination is -- 7 of 8 -- 8 important, any limit on that right resulting from the exemption is reasonable and justified. I am satisfied, accordingly, that the exemption is compatible with human rights. [36] The terms of the exemption sought by Fernwood are set out in paragraph [11] above. Having regard to the purposes for which the exemption is sought, those terms are reasonable and justifiable. For the reasons I have outlined above, the exemption should be granted under s 113 of the AD Act to Fernwood from the operation of ss 14, 15, 46 and 127 for a period of five years. [37] Accordingly, I make the following orders: 1. The application for an exemption filed by the applicant on 13 November 2020 is allowed. 2. Fernwood Womens Health Clubs (Australia) Pty Ltd is exempt from the application of sections 14, 15, 46 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in section 7(a). 3. The exemption applies only in respect of the opening, promotion and operation of health and fitness clubs by Fernwood Womens Health Clubs (Australia) Pty Ltd in Queensland. 4. The exemption shall apply to Fernwood Womens Health Clubs (Australia) Pty Ltd for a period of five years from 14 April 2021 to 14 April 2026. -- 8 of 8 --