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[2013] QCAT 719
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2013-11-29
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[1] On 09 January 2013 the Tribunal received an application seeking an exemption from ABC Business Australia Pty Ltd ATF ABC50plus Trust.
[2] ABC Business Australia Pty Ltd ATF ABC50plus Trust is a business that provides services only to people over 50 years of age.
[3] The services provided by ABC Business Australia Pty Ltd ATF ABC50plus Trust are:
Sourcing and costing of retirement options;
IT and computer training;
Web site recruitment advertising for people aged over 50 with the business to pay a commission;
Financial strategy support for conservative planning;
Website and access to employment support; and
Accounting support.
[4] ABC Business seeks an exemption for five (5) years from the operation of the Anti-Discrimination Act 1991.[1]
[5] In accordance with the requirements in section 113(2) of the Anti-Discrimination Act 1991, the Tribunal gave the Anti-Discrimination Commissioner a copy of the exemption application on the 13 February 2013.
[6] The Commissioner informed the Tribunal, in a letter received by the Tribunal on 4 March 2013, that there was insufficient evidence to support granting an exemption.
[7] It was then requested by the Tribunal, on 22 March 2013, that ABC Business file further information for the Tribunal's consideration, which it did on 22 July 2013.
[8] ABC Business says that as an owner of an IT and computer training services business, they have found a growing number of persons over 50 seeking specialised advice and assistance. The applicant believes that people aged over 50 would take comfort in knowing that they are dealing with a business which specialises to the requirements of their age group.
[9] ABC Business submits that due to our ageing population there is a substantial need for services to this age group on the basis that many persons over 50 are in part-time work, transitioning to retirement and receiving part-pension.
[10] ABC Business submits that persons over 50 have specific requirements and need technological training but are held back by perceived ageism. ABC Business aims to give advice and training in a sensitive and non-judgemental environment to persons over 50 to encourage and promote participation.
[11] ABC Business submitted that people under 50 would not be disadvantaged due to having different requirements regarding residential options and risk strategies in comparison to persons over 50. The applicant also submitted that the other company they own, ABC Business Solutions, would be providing services to people under 50.
[12] ABC Business attached a copy of Australia's Demography Challenges from the Australian Government website which identified that statistics show that Australians aged 65 and over are expected to increase rapidly from 2.5 million to 6.2 million. ABC Business also attached an article regarding ageing in the Redlands area near Brisbane which states that nearly one third of the city's population will be aged 55 years or over by 2016. It also stated that it aims to minimise barriers and obstacles to facilitate healthy lifestyles for all seniors.
[13] In considering this application, QCAT must first examine whether an exemption is necessary.[2] In Exemption Application Re: Pink Army Handywomen [2011] QCAT 395, Senior Member Stilgoe set out the factors to be considered by the Tribunal in exercising its discretion to grant an exemption:
Section 113 of the Act gives the tribunal power to grant an exemption from the operation of specified provisions of the Act. The Anti-Discrimination Tribunal has previously provided guidance for the exercise of the tribunal's discretion:
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; whether the exemption is in the community interest; the effect of not granting the exemption and whether members of the community would benefit from the exemption; 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.
[14] Considering these matters here, I am not convinced that an application is necessary. Whilst I accept the evidence provided by ABC Business Australia Pty Ltd ATF ABC50plus Trust in relation to the ageing of Australian society, it is my view that it can achieve what it intends without an exemption. There is nothing in the Act that would prevent it from advertising that it has specialist knowledge relating to the services it offers, and allowing market forces to take effect. The only advertising that cannot place is that of restricting the services offered to persons over-50. This is different from saying that ABC Business Australia Pty Ltd ATF ABC50plus Trust has "specialist knowledge in the over-50s superannuation industry," and allowing the financial market to vote with its feet.
[15] ABC Business Australia Pty Ltd ATF ABC50plus Trust has not explained why it needs an exemption in order to conduct its business. I consider it unlikely that, if they describe their specialist knowledge, that they will be flooded with business from the under-50s sector. However, the services they offer may well be of interest to persons in their late-40s, or early planners in their 30s, and there is no sound basis to refuse their services to these younger people.
[16] Rather than granting an exemption, I think it preferable that non-discriminatory market forces be allowed to take effect, as there is no justifiable reason to decline to offer these offers to younger persons who wish to plan ahead.
[17] The Application for exemption from the Anti-Discrimination Act is refused.
[1] Exemption is sought from the following section: 113.
[2] Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Exemption Application re_:_ Pink Army Handywomen [2011] QCAT 395