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[2013] QCAT 635
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2013-11-21
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
[1] Miami Recreational Facilities Pty Ltd seeks an exemption from the operation of the Anti-Discrimination Act 1991 to allow it to discriminate on the basis of age in providing accommodation services and in the disposition of interests in land.
[2] Miami administers Miami Village Residential Complex to benefit its residents. Each resident sub-lets their lot from Miami.
[3] Miami has applied to the Tribunal to extend its exemption from the operation of the Act for a period of five years_._ The Tribunal granted two previous exemptions from 7 March 2007 to 6 March 2010[1] and from 17 March 2010 to 16 March 2013[2].
[4] The Tribunal may grant an exemption from the operation of a specified provision of the Act.[3] Relevant considerations[4] are:
Miami has operated the complex as an accommodation facility with the same facilities and services for persons over 50 years of age since 1980;
the complex comprises 134 units sub-let to 200 residents;
all residents are aged between 53 years and 106 years;
community facilities include: a community hall for bingo, indoor bowls, craft, darts, table tennis and snooker; a heated swimming pool; a croquet lawn; a bowling green; a golf putt green; a tennis court; two gazebos and barbecue areas; a boat ramp; a caravan storage area; and a plant nursery;
the complex provides "for the needs of residents in their senior years by providing access to affordable accommodation and associated facilities and the association of like minded people of similar ages in such circumstances"[5]; and
the wider community "will not be disadvantaged if the extension is granted because of the availability of affordable housing in the Gold Coast region"[6].
[5] The residents support restricting the age of residents in the complex.
[6] The Anti-Discrimination Commissioner also has no objection to the exemption, but notes that previous exemptions were limited to three years.[7]
[7] The Tribunal has on two previous occasions examined the legal basis to exempt Miami.[8] On both previous occasions, the Tribunal accepted that the proposed exemption did not conflict with the purpose of the Act and that the community would not be disadvantaged. In particular, the Tribunal accepted that there was a ready availability of affordable housing in and around the complex and in the wider area of the Gold Coast.[9]
[8] However, the exemption granted has lapsed, necessitating the current application:
At the conclusion of the period for which the exemption is granted, the applicant must reapply for an exemption if they wish to retain the benefit of assured compliance with the Act, insofar as their conduct remains within the parameters of exemption granted. Should circumstances change within that period, this will come to the attention of the Tribunal before any further exemption is granted.[10]
[9] Since the lapse of the most recent exemption, there have been no complaints made to the Tribunal and the evidence and submissions are essentially the same. With that evidence continuing, there is no reason to depart from the Tribunal's previous findings. This includes limiting the exemption to three years because of the changing availability of accommodation.[11]
[10] The appropriate Order is that Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 22 November 2013 to 21 November 2016 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.
[1] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113.
[2] Miami Recreational Facilities Pty Ltd, Application ADL012-10.
[4] Burleigh Town Village Pty Ltd and Anor [2011] QCAT 646 at paragraph [2], citing with approval Palmpoint Pty Ltd [2011] QCAT 140.
[5] Application for exemption filed 23 August 2013.
[7] Letter Anti-Discrimination Commissioner to Queensland Civil and Administrative Tribunal dated 30 September 2013.
[8] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113; Miami Recreational Facilities Pty Ltd, Application ADL012-10.
[9] Miami Recreational Facilities Pty Ltd, Application ADL012-10 at [13].
[10] Exemption application re: Palmpoint Pty Ltd [2006] QADT 12.
[11] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113 at [7].