Department of Justice and Attorney-General Queensland, Re [2016] QCAT 537

CITATION: Department of Justice and Attorney-General Queensland, Re [2016] QCAT 537 PARTIES: Department of Justice and Attorney-General Queensland) (Applicant) APPLICATION NUMBER: ADL057-15 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 11 March 2016 DELIVERED AT: Brisbane ORDERS MADE: The Department of Justice and Attorney General, Corrective Services Queensland, is granted an extension of the existing Exemption from the operation of ss 14, 15, 101, 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) as to sex, as follows: a) in relation to the advertising, recruitment and employment practices for female correctional officers, female correctional supervisors, and female trade instructors at Brisbane Women’s Correctional Centre and its subsidiary units including Helena Jones Women’s Community Custody Centre and the Numinbah Women’s Low Custody Centre; and b) for a period from 5 November 2013 until the date which is 5 years from the date of this order. -- 1 of 8 -- 2 CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – where the Department of Justice and Attorney-General, Corrective Services, wants to advertise for, recruit and employ, female correctional officers, female correctional supervisors and female trade supervisors – where an extension of an existing exemption is applied for – where the exemption is sought to achieve and maintain a desired ratio of female officers – where the Anti- Discrimination Commissioner supports the application – where factors relevant to consideration of an exemption are discussed Anti-Discrimination Act 1991 (Qld), s 14(1), s 15(1), s 101, s 104, s 106, s 127 Corrective Services Act 2006 (Qld), s 38 Exemption application re State of Qld (acting through the Dept of Corrective Services [2008] QADT 26 Exemption application re: State of Qld (acting through the Dept of Corrective Services) [2004] QADT 1 Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10 Pink Army Handywomen [2011] QCAT 395 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’). REPRESENTATIVES: APPLICANT: Department of Justice and Attorney-General, Corrective Services Queensland REASONS FOR DECISION [1] The Department of Justice and Attorney-General, Corrective Services Queensland (‘the Department’), applied to the Tribunal on 22 May 2015 for an exemption from the operation of s 14(1)(a)-(d), s 15(1)(a)-(b), s 15(1)(f), s 101, s 127 of the Anti-Discrimination Act 1991 (Qld) (‘the Act’). [2] Sections 14 and 15 of the Act provide that a person must not discriminate in the pre-work or work area as to the arrangements made for deciding who should be offered work. Section 101 provides as to discrimination in administration of State laws and programs areas. Section 127 of the Act provides as to discriminatory advertisements. -- 2 of 8 -- 3 [3] The Department wishes to advertise for, and seek the recruitment of, female correctional officers, female trade instructors and female correctional supervisors at each Queensland facility or complex under Queensland Corrective Services control. [4] The exemption that was sought was as follows: The exemption is sought for the following period of time: Queensland Correctional Services had an exemption until 5 November 2013. Exemption is being sought from the effective date of approval or for a period of 6 months from the achievement of the ratio of employees at correctional facilities housing female inmates in Queensland reaching 70% female correctional officers, 60% female correctional supervisors and 50% female Trade Instructors or whichever is sooner. [5] The Tribunal may grant an exemption to an applicant from the operation of a specified provision of the Act.1 Before deciding an Application, the Tribunal must give the Anti-Discrimination Commissioner a copy of the Application and the material filed in support, and have regard to any submission made by the Commissioner on the Application.2 [6] The Tribunal gave the required material to the Commissioner by letter dated 3 June 2015. The Commissioner replied by letter dated 3 July 2015 (copied to the Applicant) pointing out that the application was not accompanied by a statement setting out detailed information in support of the Application as required by Rule 101(1)(c), and noted: Although Tribunal exemptions were granted to the Applicant by the former Anti-Discrimination tribunal in 2004 and 20083, the Commission is unable to respond in a meaningful way without the appropriate information in support of the application. For example, the exemption granted in 2008 was broader than that granted in 2004 and referred to targets for ratios of women in the positions of correctional officers, correctional supervisors and trade instructors. There is no evidence in this Application about what has transpired since the last exemption, nor about the need for a further exemption. In granting the exemption in 2008, the then president of the former Tribunal said at paragraph 9: The real question for determination is whether the exemption first granted in 2004 (and which has seen a significant increase in recruitment of female correctional service officers and trade instructors) needs to be continued to improve the results already obtained by use of the present exemption. 1 Anti-Discrimination Act 1991 (Qld), s 113(1). 2 Ibid, s 113(2). 3 Exemption application re: State of Qld (acting through the Dept of Corrective Services) [2004] QADT 1; and Exemption application re State of Qld (acting through the Dept of Corrective Services [2008] QADT 26. -- 3 of 8 -- 4 That question continues to be relevant in the present application. [7] The Commission suggested that (the Department) have the opportunity to provide further material in support of the application, which should then be provided to the Commission for consideration. [8] The Department, by letter dated 1 December 2015, filed an expanded statement to support the Application. It is convenient to reproduce the Supporting Statement in full: Queensland Corrective Services makes application for a renewal of exemption from particular provisions of the Anti-Discrimination Act 1991 (the Act) on the grounds outlined below. Primarily because the Agency contends that there are genuine occupational requirements for imposing specific provisions under s 113 of the Act in relation to the advertising, recruitment and employment practices at Brisbane Women’s Correctional Centre and its subsidiary units including Helena Jones Women’s Community Custody Centre and the Numinbah Women’s Low Custody Centre. An exemption is sought to enable the applicant to increase and maintain the number of female correctional officers and female correctional supervisors at these facilities and ensure its current practices and conduct do not breach provisions of the Act, should an exemption not be granted. Conducting prisoner searches requiring the removal of clothing Provisions contained within s 38 of the Corrective Services Act 2006, requires that there must be at least two officers conducting any search of a prisoner, when that search requires the removal of clothing and furthermore, that those officers must be the same sex as the prisoner. In order to ensure the good order and safety of the prison facility officers must be readily able to conduct searches to ensure the safety of prisoners, staff and visitors to the centre at all times. Correctional officers may be required at any time to conduct a prisoner search of this nature supporting the requirement for QCS to ensure high female to male ratio within its correctional officer and correctional supervisor employees. The Anti-Discrimination Act 1991 provides at s 106 that ‘a person may do an act which is necessary to comply with an existing provision of another act”. In this case the provisions of the Corrective Services Act are relevant. Prisoner Welfare S 104 of the Act provides that “a person may do an act to benefit the members of the group with an attribute for whose welfare the Act was designed if the purpose of the act is not inconsistent with this Act”. Female prisoners, in large part, come from traumatic backgrounds, including backgrounds where they have experienced sexual abuse and violence. The perception of female prisoners is that their custodial environment is more safe and secure when there are predominantly female officers present. Queensland Corrective services asserts, understandably, that in order to achieve rehabilitation whilst in the prison system, an environment which is perceived by the prisoners as safe and secure is a basic requirement. -- 4 of 8 -- 5 Period of exemption renewal In determining the time period to which any such exemption is approved we make submission that the reasons justifying the exemption are not, by their nature, likely to change in the next 5 years. Whilst the exemption first granted in 2004 has provided positive outcomes it is the agency’s position that an exemption would be required in order to continue the male to female ratio as indicated previously to maintain the safe and secure containment of female prisoners during their time within the correctional system. Hence, under the provisions of s113(A) of the Act, Queensland Corrective Services requests a renewal of their exemption for a period of 5 years from the date of approval should it be granted. [9] The Commission, by letter dated 17 February 2016, discussed the Supporting Statement provided by the Department. It noted that there were no current complaints against the Queensland Corrective Services relevant to the application for exemption. [10] The Commission submitted that the exemption in s 106 of the Act as to an existing provision of another Act is not relevant as to searching prisoners, as the provisions of the Corrective Services Act 2006 (Qld) are not captured by the exemption as they were not in existence on 30 June 1992. [11] The Commission also submitted as to the exemption in s 104 of the 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 the Act. It noted the Department’s submission as to the perception of female prisoners that their custodial environment was more safe and secure when the officers present are predominantly female, and that prisoners perception of a safe and secure environment is a basic requirement for achieving the rehabilitation of prisoners. [12] The Commission submitted that there is insufficient evidence for the Tribunal to conclude that any of the exemptions in the Anti-Discrimination Act 1991 apply to the targeted recruitment of female correctional officers, supervisors and trade instructors. [13] The concluding submission of the Commission was: The Commission considers an exemption is necessary for targeted recruitment and appropriate to maintain appropriate ratios of female officers and instructors in facilities housing female prisoners. The Commission has no objection to a further exemption being granted. Discussion [14] The considerations which the Tribunal will take into account in an exemption application were discussed in Pink Army Handywomen.4 The Tribunal there 4 [2011] QCAT 395. -- 5 of 8 -- 6 referred to guidance provided by the former tribunal for the exercise of the Tribunal’s discretion:5 An exemption must be made in the context of all the relevant factors of the case, and ultimately should further the objects of the ADA to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas (section 6), in the context of the international human rights instruments to which Australia is a party and which are referred to in the Preamble of ADA. The balance drawn must therefore be undertaken in the light of substantive equality and human rights, rather than for the sake of mere convenience or reputation. … The following matters may be relevant factors in considering an exemption application: whether the Queensland Anti-Discrimination Commission opposes or supports the exemption (Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198); whether any other persons or bodies other than the applicants support the application (ibid); whether the exemption is in the community interest (ibid); the effect of not granting the exemption and whether members of the community would benefit from the exemption (ibid); whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought (City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450); and the scheme of exception provisions in the Act, to give further insight into its objects (In the matter of Jane Addis (1997) EOC 92-898). The objects of the ADA include Australia's international human rights obligations which are set out in the international instruments referred to with approval in the Preamble to ADA. [15] The material in support of the Application lacks statistical support as to what the numbers and current ratios of male to female correctional officers, supervisors and trade instructors at facilities housing female prisoners in Queensland are; and what the numbers and ratio of female officers to female prisoners are; and does not show if there is in fact a shortfall of desired ratios. [16] The submissions of the Department rely on assertions that female prisoners perceive that they are safer with predominantly female officers present, and that this perception leads to better rehabilitation. No studies, data, or published articles are provided in support of this assertion. [17] The Statement of Support in itself does not provide a well-supported case for the granting of an exemption. [18] However, there are other considerations that the Tribunal may have regard to, as discussed in the ORTA6 case, as to the support of the Commission, and as to the community interest. 5 Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10. 6 Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10. -- 6 of 8 -- 7 [19] The Commissioner has considered the initial Application, and the further Supporting Statement, and supports this Application. That in itself is a relevant consideration. [20] There is a clear community interest in corrective services facilities being conducted in an orderly, safe and protective manner. The perception of the female prisoners is relevant. [21] Whilst no material is provided to support the claimed perception that female prisoners feel safer with female officers, in the absence of any contrary material, that is not a remarkable or unacceptable proposition in itself. [22] The general community would be unlikely to consider that there was anything untoward in female prisoners being under the charge of predominantly female officers. I anticipate that the community would in fact expect that to be the natural and desired arrangement, and would be surprised and concerned if that was not the provided scenario. [23] The Department does not clearly submit that an exemption is required to attract a sufficient ratio of female officers currently, but refers to maintaining the ratio. This suggests that a suitable ratio may now exist, but that continued targeted advertising for female officers is still required on an ongoing basis. [24] It is relevant that two previous exemptions have been granted, and no objection has apparently been made to the Commissioner as to the practice. [25] These considerations, taken together, in balance, outweigh the shortcomings in the material. [26] Having regard to the various considerations as discussed, I am satisfied that it is appropriate for the Tribunal to exercise its discretion to grant a further extension of the exemption as to advertising for female correctional officers, supervisors and trade instructors. [27] The requested term of 5 years is consistent with the previous orders, and in the absence of any contrary submissions, appears reasonable. [28] The previous exemption expired on 5 November 2013. No explanation is given as to why an Application for a further exemption was not made before the expiry of that exemption, or why it has taken almost a further two years to be made. The Application is for a period of 5 years from the effective date of approval. [29] No issue has been raised as to the absence of an exemption from 5 November 2103 until the present time. To avoid the need for any further proceedings, and to avoid a gap in time remaining, I will encompass that period as well. [30] In order to cover the period from the date of expiry of the previous exemption, and to give effect to a full 5 year effective exemption from the -- 7 of 8 -- 8 date of this approval, I will allow an exemption for a period from 5 November 2013 until the date which is 5 years from the date of this Order. [31] I order that: The Department of Justice and Attorney-General, Corrective Services Queensland is granted an extension of the existing Exemption from the operation of ss 14, 15, 101, 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a) as to sex, as follows: (a) in relation to the advertising, recruitment and employment practices for female correctional officers, female correctional supervisors, and female trade instructors at Brisbane Women’s Correctional Centre and its subsidiary units including Helena Jones Women’s Community Custody Centre and the Numinbah Women’s Low Custody Centre; and (b) for a period from 5 November 2013 until the date which is 5 years from the date of this order. -- 8 of 8 --