Miami Recreational Facilities Pty Ltd [2026] QCAT 99 (27 February 2026)

[2] Although described as a retirement village, the applicant does not operate under the Retirement Villages Act 1999 (Qld) (the "RVA"). It is not disputed that the applicant has been operating as an accommodation facility for persons over 50 years of age since 1980.

[3] This is not the first application for an exemption from the operation of the provisions of the ADA. A history of this facility shows that it has had five previous exemptions, the last ending on 26 July 2025. Accordingly, the applicant seeks a further exemption from that date to remain compliant with the ADA.

[4] Pursuant to s 113 of the ADA, the tribunal may grant an exemption. However, before deciding an application, the tribunal must have regard to any submissions made by the Human Rights Commissioner (the "Commissioner").

[5] By letter dated 4 July 2025 to the tribunal, the Commissioner made submissions and stated that he opposes the exemption being granted.[2] The Commissioner's concerns about exemptions that allow age restrictions in accommodation include:

(a) Tribunal exemptions are temporary and not suited to permanent arrangements such as accommodation;

(b) Housing affordability is a national concern for all, irrespective of age;

(c) Negative stereotypes about children and younger people are not a proper basis for granting an exemption;

(d) Queensland has an existing legislative framework that allows discrimination on the basis of age, under the RVA;

(e) Residential complexes with age restrictions do not necessarily cater for age-related disabilities;

(f) Where accommodation and facilities are accessible, younger people, particularly those with disabilities, should also be able to benefit;

(g) The ages of 50 and 55 are not old, particularly considering that eligibility for the age pension is currently 67 years;

(h) Affordable and accessible accommodation for seniors can be achieved through non-discriminatory means.

[6] I intend approaching a decision in the following way. First, I will apply the following matters which I regard as relevant to the tribunal exercising its discretion to grant an exemption under s 113 of the ADA, being whether:

(a) there are any non-discriminatory ways of achieving the purpose for which the exemption is sought;

(b) the exemption is in the community interest;

(c) the exemption is supported by other persons;

(d) the exemption is consistent with the objects and purposes of the ADA;

(e) the effect of not granting the exemption; and

(f) the proposed exemption is appropriate and reasonable.

[7] Second, it is common ground, and I accept, that the tribunal is acting in an administrative capacity and therefore as a "public entity" under the Human Rights Act 2019 (Qld) ("HRA") in making this decision. Accordingly, s 58 of the HRA prohibits the tribunal from making a decision that is not compatible with human rights or in making a decision, to fail to give proper consideration to a human right relevant to the decision.

Are there other non-discriminatory ways of achieving the purpose?

[8] The Commissioner submits that there are other non-discriminatory ways of achieving the purpose of affordable accommodation for like-minded people of similar ages. It is submitted that these include the design and accessibility of the housing and the complex and provision of services and facilities that are attractive to and appropriate for persons of a certain age group.

[9] The Commissioner's submissions focus on the affordability of the accommodation, and this is an important factor. However, as can be seen later in these reasons, the safety and security of the residents are among the main reasons for retaining the exemption. Furthermore, I accept the applicant's submissions and find that a wider demographic of residents in the facility in all stages of life (including younger people) may change the quiet and peaceful nature of the Village, to the detriment of the senior residents.

[10] The applicant submits that the exemption is in the community interest because it provides for proper management of a suitable residential complex which is an important part of an effective "in home support" system for seniors. It allows seniors to self-manage their physical and mental health which optimises their quality of life, dignity and independence. It is submitted that it encourages self-reliance.

[11] It is stated government policy to encourage seniors to stay in their homes for as long as possible for their own well-being and which has a flow on benefit of reducing reliance on external resources. I am satisfied that the age exemption is consistent with government policy and it is therefore in the community interest. The granting of an exemption will retain the status quo thereby allowing the residents to live as a community of like-minded people and to stay in their home for as long as possible.

[12] The following are persons who support the application for exemption, with parts of their letters extracted. The application is supported by -

(a) Emeritus Professor Colleen Cartwright AM who states in her letter dated 26 March 2025 that:

This age limitation is essential to the feeling - and reality - of safety and security of the older residents of this village. In the wider community, many older people are virtually house bound because they do not feel safe to walk outside having to avoid children and young people on scooters or push bikes, or care with inattentive drivers. As Foundation Professor of Aged Services at Southern Cross University, I conducted research and ran community-based programs relating to the safety and well-being of older people. Being free to walk unhindered in our communities is a major part of that.

Because the roads in the village are not very wide, there are no footpaths, so all residents have to walk the roads. While the village has a 15Km/hr speed limit, with signs advising of this, not everyone who comes into the village abides by this. However, the majority do and the design of the roads does not encourage fast driving so most residents feel safe.

........

If the current 50+ restriction is removed from Miami Village, many of our oldest residents may have no option by to go into residential care - something the Commonwealth Government is seeking to avoid It is also something the Miami Village residents are seeking to avoid.

(b) Ray Stevens MP who states in his letter dated 30 April 2025 that:

Miami Village's success in acquiring this exemption will provide the seniors in my electorate with a safe, positive and friendly living environment. I do believe any changes of the status would cause undue stress and anxiety to these elderly individuals.

I strongly support the request so that Miami Village can continue its essential function and purpose which it has provided since commencement namely, to provide well managed and affordable accommodation and associated facilities for the benefit of residents in their senior years. I kindly ask that favourable consideration be given to their application.

(c) Susan Holding who states in her letter dated 16 April 2025 that:

Our residents have concerns regarding the status of our over 50 accreditation from QCAT being removed. All have purchased in Miami Village for the over 50's lifestyle and all the benefits living in an environment of like minded people with facilities that can provide a safe and enriching community. The security this provides allows residents to age in their homes.

(d) Helen Simons who states in her email dated 15 April 2025 that the village offers a range of benefits that cater to the needs and preferences of older adults. She lists over 10 benefits provided by the facility (including safety and security and health care considerations) and 10 drawbacks (including generation conflicts, privacy concerns and incompatibility of needs) and concludes by stating:

Many of our owners are active and vulnerable women aged between 50 to 100 receiving aged care services and require special consideration. This is not a community where an under 50's population would be suitably accommodated or desirable. Miami Village is a unique community that has co-existed since 1982 and its future needs to be preserved for the 134 owners who deserve to live in this environment by choice.

(e) D Sharp, secretary of Body Corporate Equisitifolia, who states in a letter dated 4 April 2025 that the residents very seriously considered some of the following significant factors before making their decision (to the effect):

(i) Safety and security of likeminded inhabitants;

(ii) Quiet and slow-paced living offered by Miami Village;

(iii) A community having grown up in similar timeframes;

(iv) Convenient location of Miami Village close to public transport;

(v) Cost effectiveness of Miami Village being within the price range of retirees;

(vi) Miami Village is purpose built for the retirees.

(f) P Gawthorne who states in a letter dated 14 April 2025 that:

I feel safe living here and I would hate for us to lose those things and I am 99% sure of the people here would also.

(g) Stephen Whitney, former secretary manager of Miami Village from 2000 to 2023, who states in his letter dated 23 March 2025 that:

People who moved into the village wanted the security of knowing that they are in a community for retiring aged people like themselves who can enjoy the later years of their lives and know that they are secure and safe in this Village environment.

Over the years the average age of the Residents has now come down to the mid to high 70's some residents are still in their 90's.

Elderly people are buying into this lifestyle for the security and social aspects of the Village where they can stay at home and not be a burden on society because of all the help they can receive from outside.

[13] The Commissioner commented on these letters of support stating to the effect that the comments speak to the layout of the village, the facilities, well kept surroundings, quiet and convenience. The Commissioner submitted that there is no explanation as to how these things might be lost if the exemption is not renewed other than perceived stereotyped behaviours of young people. It is submitted also that there is no explanation as to why older residents may have no option but to go into residential care if the exemption is not renewed.

[14] I find the letters of support (parts of which are extracted above) to be persuasive in terms of the argument for retaining the exemption for a further period; I do not read them as exhibiting a negative stereotype of youth but rather as expressing the benefits of community living in an over 50's facility. For example, Ms Cartwright refers to the ability of residents to walk freely with a feeling of safety and security; Mr Stevens MP, who strongly supports the application, states that the facility provides a safe, positive and friendly living environment. Ms Holding speaks to a safe and enriching community and the security this provides allows residents to age in their homes. Ms Simons refers to many of our owners being active and vulnerable women receiving aged care services and require special consideration. I find there to be a common message about the safety and security offered by the Miami Village where the residents are over 50 years of age. I find these arguments about safety and security of the residents to strongly favour retaining the exemption.

[15] The Commissioner argues that any suggestion the safety and security of the residents will be adversely affected if people under the age of 50 are allowed in is another age-based stereotype.[3] This statement is from the decision relied on by the Commissioner and was made in that case in relation to a consultant's report that the learned member considered to be "largely if not entirely irrelevant". In this case, there are letters from persons expressing their concerns about their safety and security in the village without the exemption which are relevant considerations because they touch on the issue of whether an exemption should be granted. For this reason I find they do not display an aged-based stereotype.

Is the exemption consistent with the objects and purposes of the ADA?

[16] Under s 6 of the ADA:

(1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.

(2) This purpose is to be achieved by -

(a) prohibiting discrimination that is -

(i) on a ground set out in part 2; and

(ii) of a type set out in part 3; and

(iii) in an area of activity set out in part 4;

unless an exemption set out in part 4 or 5 applies......

[17] The exemption sought is under s 113 of the ADA. Section 113 appears in Chapter 2 Part 5 and if granted I find would therefore be consistent with the objects and purposes of the ADA as shown in s 6(2).

[18] The applicant produced evidence of sales comparisons with a statement by the agent to the effect that homes can be purchased in the over 50's Miami Village for significantly less than to purchase a similar home in a residential complex in the immediate area. The comparisons are of a "2 bedroom, 1 bathroom villa with single lock up garage" of recent sales in Miami Village, Miami Links and Miami Villas. The sales prices for Miami Village range between $600,000 and $650,000 whereas the other two facilities have sales prices all over $700,000.

[19] This is contested by the Commissioner who submits that this is no evidence that the sales price differences are a result of a lower demand for age restricted units. However, I place weight on the statement of the agent, who is working in the real estate industry, who states that if the exemption were removed, the prices for homes in Miami Village would increase as a result. Furthermore, it was found in the previous decision that if the exemption were refused then as units became available for sale or rent they would command higher prices than if the exemption were granted. I see no reason to depart from that finding.[4]

[20] The Commissioner also submits that there is no evidence to support the claim that not having another exemption may change the quiet and peaceful nature of the village to the detriment of senior residents. However, I prefer the evidence of Professor Colleen Cartwright AM who supports the exemption and who states she has conducted research and programs relating to the safety and well-being of older residents.

Is the proposed exemption appropriate and reasonable?

[21] For the above reasons, I find that the exemption is appropriate and reasonable under the ADA.

Human Rights Act

[22] I am satisfied that the HRA applies to this tribunal decision for the reasons stated in Miami Recreational Facilities Pty Ltd [2021] QCAT 378, [49].

[23] Under s 48 of the HRA, the tribunal is required to interpret statutory provisions in a way that is compatible with human rights. Under s 58 of the HRA, it is unlawful for the tribunal to act or 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 human right relevant to the decision.

[24] Under s 13(1) of the HRA, 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. Under s 13(2) of the HRA, there is a list of factors that may be considered relevant in deciding whether a limit on a human right is reasonable and justifiable.

[25] The human rights identified by the Commissioner in respect of the exemption application are:

(a) Recognition and equality before the law (s 15 of the HRA); and

(b) Property rights (s 24 of the HRA).

[26] In respect of s 15 of the HRA, the Commissioner submits that every individual in Queensland not over the age of 50 years has an equal right to be protected from discrimination on the basis of age and from the exclusion of them from inexpensive accommodation they otherwise qualify for on the basis of their age.[5]

[27] In respect of s 24 of the HRA, the Commissioner submits that an exemption would prevent individuals under the age of 50 years from purchasing and sub-leasing a unit in the complex. Consequently, the right in s 24 of the HRA of all persons to own property alone or in association with others would be limited by a further exemption.

The nature and purpose of the limitation [s 13(2)(b)]

[28] The nature of the limitation of human rights is the granting of the exemption under s 113 of the ADA. The purpose of the limitation, in brief, is to allow the facility to continue to operate as an "affordable safe haven"[6] as it has done since 1979. The Commissioner describes the purpose of (another) exemption "is to provide affordable and safe accommodation suitable for older people".[7]

[29] The purpose must be sufficiently important to justify limiting the human rights, which in my view it is because it is in the interests of society that persons over 50 years of age, including vulnerable people, are able to feel they live in accommodation that is tailored for senior living and that is safe.

Whether there are any less restrictive and reasonably available ways to achieve the purpose [s 13(2)(d)]

[30] The Commissioner accepts that converting to a facility regulated by the RVA is not a feasible option for this village. However, the Commissioner submits that there are other non-discriminatory ways of achieving the purpose of affordable accommodation for like-minded people of similar ages. The Commissioner submits these include the design and accessibility of the housing and the complex and provision of services and facilities that are attractive to and appropriate for persons of a certain age group. It is also submitted that it is not unlawful to target marketing to a demographic.[8]

[31] The Commissioner does not go into detail as to what he considers would be involved if his suggestion were to be carried out, but if there are design issues involving the housing, I infer that this would lead to construction work in the village which would come at a cost. It may be an alternative, but I do not place much weight on this proposal because there is insufficient information as to what this alternative actually involves.

[32] I prefer the applicant's submissions that it is not possible to maintain the facility's age-appropriate environment by any other means, including body corporate by laws or conditions of entry or use, which would be more restrictive, not less restrictive. Having ruled out the facility being regulated by the RVA, there is insufficient evidence before me of any other less restrictive and reasonable way of achieving the purpose.

Balancing of the importance of the purpose of the limitation against the importance of preserving the human rights in s 15 and 24 of the HRA - [s 13(2)(e), (f), (g)]

[33] The Commissioner is concerned that where accommodation and facilities are accessible, younger people, particularly those with disabilities, should also be able to benefit and that the ages of 50 and 55 are not old, particularly considering that eligibility for the age pension is currently 67. There is merit in this concern. However, the impact on the general population of Queensland of an exemption is in my view minimal and is outweighed by the benefit of the exemption to the residents of the village.

[34] The Commissioner's concern is that housing affordability is a national concern for all, irrespective of age. There is evidence from an agent regarding the prices of units in the village being lower when compared to similar units in other facilities. If the exemption were not to be granted, then the evidence is that prices of units in the village would rise over time. This would negate any possible benefit of the more affordable housing to those under 50 years because the increased demand.

[35] The Commissioner's concern is that residential complexes with age restrictions do not necessarily cater for age-related disabilities. I agree with this concern and give it some weight.

[36] In the previous decision,[9] Member Gordon found the balancing exercise, in respect of the human right given under s 15 of the HRA, to favour the granting of the exemption. He said at paragraphs [85] to [88]:

[85] In this application the most important factor when carrying out the balancing exercise, and in exercising the discretion under the ADA whether or not to grant the exemption, is the effect of refusing it. In so far as this would affect the private interests of the current residents it seems to me that I can still take that effect into account when considering 'importance of the purpose of the limitation'. In any case I can take the effect into account as a factor to be balanced in considering whether the limit on the human rights is justified, and when exercising the discretion under the ADA.

[86] The effect is clearly going to be much greater in the short term on the current residents. I have found that some would find it unsettling and could cause some to bring forward plans to move. It would also be contrary to their expectation when they purchased or rented their units.

[87] The effect of refusing the exemption would be different in the longer term. The arguments now made by the Commissioner would be compelling if the tribunal could continue the exemption but limit it to some future date when all the current residents have been replaced by different residents. But the tribunal can only make exemption orders effective now and for a maximum period of five years, and so it is the short term effect of those orders which needs to be considered. For this reason, whilst I accept the Commissioner's submissions that an exemption from the ADA should be temporary, the ADA specifically permits renewals and it is precisely this sort of application where such a renewal is required.

[88] The balancing exercise comes out in favour of renewing the exemption. I confirm that the exemption limits the relevant human right only to the extent that it is reasonable and demonstrably justified in a free and democratic society based in human dignity, equality and freedom, and produces a result consistent with the aims and objects of the ADA.

[37] I agree with views expressed above. They are also applicable in respect of the human rights given under s 24 of the HRA.

[38] I find for the reasons set out above that the limit on human rights in s 15 and s 24 of the HRA is reasonable and justifiable.

[39] I find that the exemption can be backdated to apply from 27 July 2025 for the reasons given by Member Gordon in the previous decision.[10]

[40] I find that the length of the exemption should be for five years for the reasons given by Member Gordon in the previous decision.[11]

[41] In the circumstances, I grant the application in the terms set out in the order.

[1] ADA s 7(f).

[3] Citing Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228, [92].

[4] Miami Recreational Facilities Pty Ltd [2021] QCAT 378, [43].

[5] Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228.

[6] Applicant's submissions 13 July 2025, paragraph 9.

[7] Commissioner's letter dated 4 July 2025, page 7 of 12.

[9] Miami Recreational Facilities Pty Ltd [2021] QCAT 378.