Brisbane Housing Company Ltd (Bonney Lane), Re [2018] QCAT 72

CITATION: Re: Brisbane Housing Company Ltd (Bonney Lane) [2018] QCAT 72 PARTIES: Brisbane Housing Company Ltd (Applicant) APPLICATION NUMBER: ADL076-17 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 14 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The Brisbane Housing Company Ltd is granted an Exemption, for a period of five years from the date of this Order, from the operation of sections 81, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in respect of premises located at 4 Bonney Lane, Fortitude Valley, Queensland, in relation to: a) attributes referred to in section 7(a) as to sex, 7(b) as to relationship status, 7(c) as to pregnancy, 7(d) as to relationship status, 7(o) as to family responsibilities, and 7(p) as to association with, or relation to, a person identified on the basis of any of the attributes of section 7; or b) attributes referred to in section 7(f) as to age, and 7(h) as to impairment, insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – SPECIAL MEASURES – where a not for profit housing company brought an application for exemption from certain provisions of the Anti-Discrimination Act Qld 2009 (Qld) – where the management of the premises required transparency and flexibility – where the premises provided affordable -- 1 of 5 -- 2 housing to low income people and people with special needs Anti-Discrimination Act 1991 (Qld), s 7, s 81, s 82, s 83, s 124,s 127 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 Re Brisbane Housing Company Ltd (3) [2012] QCAT 529 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The Brisbane Housing Company Ltd (‘the Company’) is a not for profit community housing provider established to provide affordable housing to low-income households in Brisbane. [2] The Tribunal granted an exemption to the Company from certain sections of the Anti-Discrimination Act 1991 (Qld) (‘the Act’) on 16 October 2012, for a five-year period, in relation to premises located at 4 Bonney Lane, Fortitude Valley, Queensland. The residential complex comprises 82 units designed for single adult accommodation. [3] The exemptions sought are as follows: An Exemption, for a period of five years, from the operation of Sections 81, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in respect of premises located at 4 Bonney Lane, Fortitude Valley, Queensland, in relation to: a) attributes referred to in Section 7(a) as to sex, 7(b) as to relationship status, 7(c) as to pregnancy, 7(d) as to relationship status, 7(o) as to family responsibilities, and 7(p) as to association with, or relation to, a person identified on the basis of any of the attributes of Section 7; or b) attributes referred to in Section 7(f) as to age, and 7(h) as to impairment, insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone. [4] The Act provides that the Tribunal may grant, or renew, an exemption to a person from the operation of a specified provision of the Act for a period of not more than 5 years.1 [5] The Company filed an application on 26 July 2017 seeking a five-year renewal of the exemption. 1 The Act, s 113(6)(c) , s 113(7). -- 2 of 5 -- 3 [6] The Anti-Discrimination Commission Queensland filed a submission in the Tribunal on 17 August 2017 submitting that it had no objection to the granting of the further exemption:2 Housing is an important human right, and it impacts many other aspects of life, including health and employment. Housing affordability is a national concern. Providing low cost housing for vulnerable people is consistent with the objectives of the Anti-Discrimination Act 1991, and with the legislative intent of exempting welfare measures. Tribunal exemptions under the Act are temporary in nature and arguably not intended for more permanent arrangements such as residential housing. Although not ideal, the temporary exemption is the only option available to the applicant. In the circumstances, the Commission has no objection to the granting of the further exemption that is sought. [7] The Company has made three identical applications in relation to each of the following separate properties, and has filed a common set of submissions:3 a) 47 Warry Street, Fortitude Valley; b) 5 Green Square Close, Fortitude Valley; and c) 4 Bonney Lane, Fortitude Valley. [8] The Company explained that it requested the exemptions in order to have transparency: BHC provides homes for around 1,200 Brisbane households however the unique nature of these buildings requires a specific management plan, resourcing and appropriate controls to ensure fire safety compliance, as well as creating liveable communities in these dense forms of housing. While BHC has never needed to apply the previous exemptions, both the BHC Board and management value the transparency of the decision to ensure informed communication with our tenants. Given the challenges that some of our more vulnerable tenants experience, the exemption allows us to have confidence to assist tenants to seek alternative housing either within BHC’s portfolio or facilitated by BHC into other portfolios (ie. public housing or another community housing provider) if circumstances change and their current housing becomes unsuitable. [9] In its submission, the Company noted that the exemption would assist the management plans for the three properties on the grounds of social mix, volume/density, continuity and maintenance.4 It highlighted the need for some tenants to have an immediate transfer due to extreme circumstances 2 Letter from Anti-Discrimination Commission Queensland to the Tribunal dated 17 August 2017, 2. 3 Letter from the Company to the Tribunal dated 30 June 2017. 4 Submission dated 30 June 2017, 2. -- 3 of 5 -- 4 which may include domestic violence or violence and abuse from another family or community member. [10] In considering whether to grant an exemption, the Tribunal will have regard to several considerations. In Boeing Holdings Pty Ltd,5 the President of the former Anti-Discrimination Tribunal Queensland, Mr Sofronoff QC, outlined these as follows:6 The granting of an exemption is discretionary. For an exemption to be granted I must be satisfied that it would be appropriate and reasonable to do so. Other matters that may be relevant in considering an exemption application include: (a) Whether the exemption is necessary; (b) Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought; (c) Whether the exemption is in the community interest; (d) Whether any persons or bodies other than the applicants support the application. [11] In the earlier decision, the Tribunal considered the need for an exemption:7 [37] Whilst it appears that there are some specific exemptions that would be available to Brisbane Housing should a complaint of age, sex or impairment arise against it, given the breadth of attributes included in the application, Brisbane Housing would still be at risk of a complaint of discrimination against it. For example if a woman tenant residing in one of the single person units became pregnant and Brisbane Housing sought to transfer her to other accommodation for two or more people the woman would be at liberty to make a complaint to the ADCQ claiming potentially sex, pregnancy , or parental status discrimination in the area of accommodation. Likewise if an older person, who was supported by a full-time carer, sought accommodation in one of the single person units and was refused a tenancy because they required a carer to live with them, that person would also be at liberty to make a complaint to the ADCQ claiming age discrimination in the pre- accommodation area on the basis of his need for a live-in carer. [38] Although there are some specific exemptions that would cover some, but not all, of the potential scenarios provided by Brisbane Housing, given the number and diversity of the potential tenants Brisbane Housing seeks to accommodate and the uncertainty of making out any defence or specific exemption in potentially complex and diverse circumstances, the Tribunal is satisfied that an exemption is necessary. 5 Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21. 6 Ibid, 12.1, 12.2. 7 Re Brisbane Housing Company Ltd (3) [2012] QCAT 529, [37], [38]. -- 4 of 5 -- 5 [12] The activities of the Company are highly specific. It has developed premises and management plans that cater to the needs of its specific tenants. The Company requires a degree of flexibility in managing the resources it has. [13] No non-discriminatory means of achieving the social goals of the Company have been put forward by any person, or appear open, and the application is supported by the Anti-Discrimination Commissioner. [14] The functions of the Company are in the public interest in providing accommodation for low-income tenants, which may not otherwise be available. [15] Having regard to the activities of the Company, the views of the Anti- Discrimination Commissioner, and the matters to be considered by the Tribunal, I am satisfied that it would be appropriate and reasonable for an exemption to be granted, and will exercise my discretion to do so. [16] The period of 5 years that has been applied for is the maximum allowable under the Act. The property is a long-term undertaking, and the situation of the Company is unlikely to change. It is therefore appropriate to grant the maximum period of exemption. [17] The previous exemption has expired by time, so it cannot be renewed, but I will grant an exemption of 5 years from the making of this Order. [18] I order as follows: The Brisbane Housing Company Ltd is granted an Exemption, for a period of five years from the date of this Order, from the operation of sections 81, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in respect of premises located at 4 Bonney Lane, Fortitude Valley, Queensland, in relation to: a) attributes referred to in section 7(a) as to sex, 7(b) as to relationship status, 7(c) as to pregnancy, 7(d) as to relationship status, 7(o) as to family responsibilities, and 7(p) as to association with, or relation to, a person identified on the basis of any of the attributes of section 7; or b) attributes referred to in section 7(f) as to age, and 7(h) as to impairment, insofar as the effect of one or both of those attributes in any particular case is that a person is not able to live alone. -- 5 of 5 --