Re: Kalwun Development Corporation Limited [2026] QIRC 89 (26 March 2026)

1. The Industrial Registrar of the Queensland Industrial Relations Commission is to place a notice of the Application by including a hyperlinked copy of the Application on the Queensland Industrial Relations Commission website, and provide the information referred to in directions 4 and 7 herein, by no later than 4.00pm on 3 April 2025.

1. Any interested parties who wish to make written submissions are to notify the Queensland Industrial Relations Commission of such an intention, by advising the Industrial Registrar in writing by email at QIRC.Registry@qirc.qld.gov.au filing in the Industrial Registry and serving submissions on the Applicant and the Queensland Human Rights Commission, by no later than 4.00pm on 17 April 2025.

1. If necessary, the Applicant file in the Industrial Registry and serve on the Queensland Human Rights Commission and any interested parties, supplementary written submissions, by no later than 4.00pm on 29 April 2025.

1. Only if submissions in direction 5 herein are filed, then, if necessary, the Queensland Human Rights Commission and any interested parties file in the Industrial Registry and serve on the Applicant, any further written submissions in reply to the Applicant's supplementary submissions, by no later than 4.00pm on 7 Mav 2025.

1. The matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.

[8] Submissions were received from QHRC, Queensland Council of Unions ('QCU') and the Feminist Legal Clinic.

[9] A common concern detailed in the submissions was the lack of clarity of the term 'gender' as used in the application, and whether this should be amended to specify 'gender identity' or 'sex'. A Mention was convened to discuss these concerns, attended by the Applicant, QHRC and QCU. The Feminist Legal Clinic did not attend but had indicated in their submissions that they understood the application as requesting an exemption on the grounds of both 'sex' and 'gender identity'.[5]

[10] At the Mention the Applicant clarified that they sought the exemptions based on sex and gender identity. The Applicant was afforded an opportunity to file an amended application and affidavit and further identified stakeholders would also be asked to provide submissions.

[11] I issued a Further Directions Order providing that the Applicant would file and serve an amended application on the QHRC, QCU, Feminist Legal Clinic, Women's Legal Service Qld, LGBTI Legal Service, Australian Transgender Support Association of Queensland, Equality Australia and LGBTIQ Health Australia. The Further Directions Order provided that these interested parties would file submissions and that the Applicant would, if required, file and serve submissions in reply, with the decision to be made on the papers.

[12] Submissions were received from QHRC (supplementary), QCU and a joint submission from Equality Australia and LGBTI Legal Service.[6]

[13] The Applicant did not make further submissions in reply.

[14] The Amended Application, filed 3 June 2025, is reproduced below:

Kalwun's Child, Youth and Family division offers programs and services to address recognised needs and build on the identified strengths of the family, empowering them to build happy, healthy, safe families.

We have previously held an exemption to recruit based on sex for the Youth Wellbeing Worker role, however this expired recently. We would like to renew this exemption and expand it to include sex and gender identity, along with positions in the following teams:

• - Youth Wellbeing
• - Family Wellbeing
• - Family and Domestic Violence
• - Empowered and Connected Families
• - Kinship and Foster Care
• - Family Participation Program
• - Tertiary Family Intervention Service (new program, name to be finalised)

Across these teams we try to ensure that both male and female workers are represented for the following reasons:

1. The primary focus of the position is to provide support to vulnerable Aboriginal and Torres Strait Islander children, young people, and their families, who are considered at-risk, throughout the Gold Coast area.
2. People accessing these services will typically be from situations of abuse, violence, and often have a history of prior offending or be at risk of offending.
3. In indigenous culture, it is only appropriate for a male to discuss Men's business (personal items) with another male, and Women's business should only be discussed between two females.
4. Government funding for new roles can often specify it is required to be filled by a person of a specific gender.

This exemption would allow us to address gaps in a team situation and recruit a candidate of the required sex/gender identity, when required, to allow Kalwun to continue offering services to all families.

Our use of the word 'sex' in this application applies to biological sex for cis individuals but also recognises that sexual characteristics of people may not align with their biological sex. Therefore this application is made in relation to 7 (a) sex, and 7 (m) gender identity. If our application was to be successful, and we were recruiting for a 'female' worker, the applications would be open to female identifying individuals, including trans and gender diverse individuals.

Our priority is recruiting a person who can discuss the relevant 'mens business' or 'womens business' topics with an Aboriginal or Torres Strait Islander person, and therefore any person who is accepted as of that gender would be welcome. The majority of the above listed roles are identified ones, and therefore there is an occupational requirement that the person be Aboriginal or Torres Strait Islander. We aim to provide an inclusive environment for all staff, and we are reviewing Workplace Gender Affirmation policies made available by TransMob to implement.

If this exemption is granted, it will only be used when required to address an imbalance. For example, if we have a team of three Youth Wellbeing Workers, currently filled by one male and one female. our recruitment of a third employee would be open to all, as we wouldn't have an imbalance. However, in the situation that the two existing employees were female, we would use the exemption to recruit and employ a person who identifies as male, to ensure that we can continue providing youth services to young males.[7]

Power of the Tribunal under the AD Act

[15] Section 174B(b) of the AD Act confers on the Commission the power to grant exemptions regarding work-related matters.

[16] Section 113 of the AD Act provides the Commission may exercise discretion to grant an exemption from the operation of provisions of the AD act as follows:

(a) a person, on the person's own behalf, or on behalf of the person and another person or other people; or

(b) 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or

(c) a person or people included in a class of people on behalf of the people in that class;

may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act.

See also section 174C in relation to the tribunal's powers for deciding the application.

(2) Before deciding an application, the tribunal must -

(a) give the commissioner a copy of the application and a copy of the material filed in support of the application; and

(b) have regard to any submission made by the commissioner on the application, including a submission on the process for considering the application.

(3) Matters the commissioner may make a submission on in relation to the process for considering an application include, but are not limited to, the following -

(a) whether the application should be considered by way of public hearing;

(b) identification of persons who may be affected by a decision to grant the application;

(d) how consultation with identified persons or the public should be conducted.

(4) The commissioner must give a copy of a written submission the commissioner makes on an application to the applicant.

(5) The tribunal may request that the commissioner -

(b) report to the tribunal the results of the inquiry and a recommendation about the application.

(a) may be granted subject to such terms as the tribunal provides; and

(b) may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and

(c) is to be granted for a specified period of not more than 5 years.

(7) An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted.

[17] The Applicant seeks the grant of the exemption for a period of five (5) years, the maximum period provided for under the Act.

[18] The AD Act prohibits discrimination on the basis of certain attributes.[8] 'Sex' is provided for in the AD Act at s 7(a) and 'gender identity' at s 7(m).

[19] 'Sex' is left undefined by the AD Act.

[20] 'Gender identity' is defined by the AD Act as follows:[9]

(a) is the person's internal and individual experience of gender, whether or not it corresponds with the sex assigned to the person at birth; and

(ii) if freely chosen - modification of the person's bodily appearance or functions by medical, surgical or other means; and

(iii) other expressions of the person's gender, including name, dress, speech and behaviour.

[21] The exemption sought relates to ss 14, 15, 15A, 124 and 127 of the AD Act, set out below:

(a) in the arrangements made for deciding who should be offered work; or

(c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person's age; or

(e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(f) in developing the scope or range of such a program.

(b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or

(d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(e) in developing the scope or range of such a program; or

(f) by treating a worker unfavourably in any way in connection with work.

dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise

(1) This section applies if a person (the worker) does work, or is to do work, for another person (the principal) under or because of -

(a) a contract between the principal and a third person; or

(b) another arrangement, or a series of arrangements, involving the principal and a third person, whether or not the arrangement or series of arrangements also involves other persons.

(2) The principal must not discriminate against the worker -

(a) in the terms in which the principal allows the worker to work; or

(b) by not allowing the worker to work or continue to work; or

(c) by denying or limiting access by the worker to any benefits connected with the work; or

(d) by treating the worker unfavourably in any way in connection with the work.

(3) This section does not limit section 15.

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.

(2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by -

(c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or

(d) an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or

(e) an order of QCAT or the industrial relations commission.

(3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

existing provision means a provision in existence at the commencement of this section.

An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

(1) A person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act.

(a) in the case of an individual - 35 penalty units; or

(b) in the case of a corporation - 170 penalty units.

(1A) To remove any doubt, subsection (1) does not apply to an advertisement so far as it advertises for a worker who is under 21 years of age, whether by specifying a particular age, a particular age group or otherwise.

An employer may advertise for an 18 year old sales assistant or for a 15 to 17 year old sales assistant.

(2) It is a defence to a complaint made under the Act for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable precautions to prevent the publication or display happening.

(3) It is an excuse to an offence against subsection (1) if the defendant took reasonable precautions to prevent the publication or display happening.

Principles relevant to the exercise of discretion

[22] While the discretion conferred upon the Commission by s 113 of the AD Act is 'broad' and 'unfettered',[10] it is well established that the granting of an exemption is not a trivial matter and is not undertaken as a matter of routine.[11] As noted by Vice President O'Connor in Re the Women's Legal Service Inc:[12]

The granting of an exemption is not a matter of routine, as stated by Member Paratz:

An exemption from an Act of the State Parliament, to put the [Applicant] in a different position to other citizens, is not a matter of routine . The Applicant is seeking to have part of the laws of the State not apply to it, and that is a significant matter. In appropriate circumstances, where that is warranted and necessary, then the Tribunal may make such an order, but it is not a given result.

The Tribunal always has to have regard to the possible implication of an order. Whilst a blanket exemption may seem benign on its surface in the context of a well-meaning application, the Tribunal will be concerned that an unnecessary or overly broad order may deprive citizens and claimants of rights and actions that they would otherwise have.

[23] In Re: Sera's Women's Shelter,[13] Dwyer IC observed that 'proper and compelling justification' is required to be granted permission to be exempt from the operation of the AD Act.[14]

[24] In Re: Proximity Advisory Services Ptd Ltd and Systems Planning and Analysis, Australia Pty Ltd,[15] Vice President O'Connor explained the following considerations set out in Re Boeing Australia Holdings Pty Ltd & Related Entities are of assistance to the Commission in determining whether to exercise the discretion:[16]

(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 other persons or bodies other than the Applicants support the application.

[25] The amended application is reproduced in full at paragraph [14].

[26] In support of the application, Mr Kieran Chilcott of the Applicant deposed as follows:[17]

It is a legitimate operational requirement for Kalwun to recruit and hire based on sex/gender identity when an imbalance affects the delivery of the programs across the following teams within the Child, Youth and Family Services division:

-Tertiary Family Intervention Service (new program, name to be finalised)

[27] It is clear that the Applicant views the necessity of the exemption as stemming from the need to ensure persons hired are competent to engage in men's business or women's business as required.

[28] The Commission has declined to grant exemptions in the past where it considers the Applicant would have a defence of 'genuine occupational requirement'.[18]

[29] The QHRC support the proposed grant of the exemption on the basis of sex. They point to the fact that the Applicant previously held an exemption on the basis of sex and confirm that their records do not indicate any current complaints against the Applicant.[19]

[30] QHRC note that the Tribunal, in granting the prior exemption, amended the exemption so that it enabled recruitment of both male and female youth workers (in contrast to just female, as had been sought).[20]

[31] However, the QHRC do not consider that the amended application discloses sufficient detail as to why the sought exemption regarding gender identity is necessary or appropriate. They submit that the amended application does not demonstrate that the limitations on human rights are justified in accordance with the HR Act in relation to that attribute.[21]

[32] The QHRC refer to the definition of 'gender identity' in the AD Act (set out at paragraph [20]) and explain it captures a 'broad range of gender diversity including trans-gender, non-binary, and gender fluidity'.[22]

[33] While they acknowledge and support the Applicant's stated purpose of provision of culturally appropriate services,[23] they raise concerns that the present application would allow discrimination as follows:

... an exemption that would allow gender identity discrimination in the work area would extend towards a person who is male or female identifying or a person who identifies as neither or both genders. The applicant is clear as to why they may wish to employ male or female identifying people to meet cultural requirements. However, no information has been provided on the cultural requirements of people who do not identify as either gender or who identify as both. [24]

[34] QHRC point to the decision in Re: Sera's Women's Shelter Incorporated where an exemption on the basis of gender identity was declined as it would be too broad an exemption and had the potential to unjustifiably deprive people of their rights.[25]

[35] The QHRC pick up on the Applicant's statement that they would be open to hiring a trans person or gender diverse person, so long as the gender they identified as aligned with the requirements of the role (i.e., someone being hired to discuss women's business would need to identify as a woman, but, for example, trans women would not be excluded). They acknowledge that the Applicant would 'only seek to discriminate' to enable balance between the workforce assisting men and women as required.

[36] The QCU filed submissions addressing the amended application. They noted that the Applicant had previously held an exemption and submitted that while the reasons for granting that exemption may well have endured, it is nevertheless appropriate that the Commission 'thoroughly reevaluate' the application as the exemption currently sought extends beyond the previous exemption.[26]

[37] The QCU also draw my attention to the applicability of the Human Rights Act 2019 (Qld) to any decision I make in this matter. They submit that the reference by the Applicant to men's and women's business is a reference to cultural practice, belief, or teaching, and submit that while the Applicant does not have human rights, the rights contained in section 28 of the HR Act of the clients of the Applicant as Aboriginal and Torres Strait Islander Peoples to "enjoy, maintain, control and protect their cultural heritage" is a relevant consideration.[27]

[38] QCU submit that the reference in Mr Chilcott's Affidavit to it being a 'genuine operational requirement' to hire based on sex/gender weighs against the grant of the exemption.[28]

[39] As long as the exemption is granted pursuant to the 'usual constraints', QCU does not object to the grant of the exemption on the basis of sex, for the following reasons:

(a) Proper consideration of section 28 of the HR Act weighs in favour of granting the exemption sought by the Applicant; and

(b) Granting the exemption will provide the Applicant with certainty and minimise the risk of the Applicant defending a complaint of sex discrimination. [29]

[40] However, QCU echo the reservations expressed by the QHRC regarding the proposed exemption on the basis of gender. QCU submit that the purpose of section 113 of the AD Act is to ensure persons who are acting within the spirit of the AD Act are not exposed to claims of discrimination.[30] The QCU submits that 'proper consideration' of this purpose weighs against the grant of the exemption based on gender identity.

[41] The QCU also highlight the assurance by the Applicant in their amended application that they aim to provide an inclusive environment for all staff, and that if they were recruiting a female worker, the applications would be open to female identifying persons, including trans and gender diverse individuals. The QCU says that this does not disclose a prima facie case of gender identity discrimination, submitting instead this confirms the Applicant does not intend to discriminate on the basis of gender identity. The QCU submits that for this reason the exemption regarding gender identity is unnecessary.[31]

[42] QCU point to Tickle v Giggle for Girls Pty Ltd (No 2) in support of the proposition that the the term 'sex', for the purposes of anti-discrimination law, where undefined by legislation, includes individuals assigned a particular sex at birth and those who identify as that sex.[32] Therefore, the QCU says that the grant of the exemption on sex alone would, in its own right, enable the Applicant to achieve the purpose for which the exemption is sought.[33]

Joint submissions of Equality Australia and LGBTI Legal Service

[43] Equality Australia and LGBTI Legal Service submit they understand that many of the clients of the Applicant will have experienced abuse, violence or have been exposed to the criminal justice system. They also understand from the application that cultural reasons and government funding requirements are the main drivers of the application for exemption.

[44] The joint submissions of Equality Australia and LGBTI Legal Service cohere with the submissions of the QHRC and the QCU in supporting the exemption based on sex. They object to the exemption sought on the basis of gender identity.[34]

[45] The exemption based on gender identity is opposed as neither reasonable nor appropriate.[35] Equality Australia and LGBTI Legal Service refer to the definition of sex recently articulated in Australian law, and highlight that 'a trans woman is a woman under the law' and a 'trans man is a man under the law', even where a person has not formally updated their record of sex.[36] They state:

We are not in a position to report on cultural considerations and requirements, but it is clear from Kalwun's Application that they are open to employing trans women in roles requiring female workers (e.g. working with women or girls) and trans men in roles requiring male workers. On this basis, there does not appear to be any reason to include the gender identity attribute in the Application.

We commend Kalwun for their thoughtful and inclusive approach to hiring... Unless Kalwun intends to discriminate against trans people in its hiring practices - which we do not believe to be the case - an exemption on the basis of gender identity is unnecessary. [37]

[46] The joint submissions further contend that to grant the exemption on the basis of gender identity would be inconsistent with the purposes of the AD Act, which include promotion of equality of opportunity. Equality Australia and LGBTI Legal Service say that exemptions that assist effective and safe service delivery for Aboriginal and Torres Strait Islander Peoples must be balanced against the importance of ensuring the rights of other vulnerable groups, such as trans people, is not limited.

[47] Equality Australia and LGBTI Legal Service have referred to a number of statistics that illustrate the difficulties trans people face in gaining and retaining employment (citations omitted):[38]

In 2021, a national community based-survey regarding the health and well-being of trans Australians found the unemployment rate of trans people was three times (19%) that of the then current census data from May 2018 of the general population in Australia (5.5%) and substantially above the youth unemployment rate (12.2%). The same survey found that 33% of trans people reported discrimination in employment on the basis of gender identity.

[48] This Tribunal has also recently recognised in Re: Sera's Women's Shelter Incorporated that trans people face comparatively higher rates of mental illness and increased vulnerability to self-harm and suicide.[39] The joint submissions highlight this and argue that a general exemption on the basis of gender identity would have the effect of legitimising discrimination of an already vulnerable cohort.[40]

[49] Moreover, the joint submissions say that in practice, this exemption would be difficult to apply and it would likely require the Applicant to ask job applicants if they are trans, which may attract the unintended consequence of encouraging employers to ask intrusive or inappropriate questions about the gender history of a person.[41]

[50] The Applicant contends the sought exemptions constitute a 'genuine operational requirement' that they be able to 'recruit and hire based on sex/gender identity when an imbalance affects the delivery of the programs'.[42]

[51] Given that a genuine operational requirement functions as a defence in the AD Act, this is not a reason to grant the proposed exemptions. It is also not an automatic reason to deny the application.

[52] I accept the substance of the Applicant's contention that the work they perform delivers critical services to vulnerable groups and therefore find that an exemption based on the attribute of sex is necessary to enable the Applicant to achieve their goal of balance in their hiring.

[53] I also have regard to the previous decision to grant an exemption on the basis of sex, in which Vice President O'Connor relevantly stated when considering this point:

The exemption is necessary to provide certainty for the Kalwun Development Corporation in conducting recruitment of only women without fear of a complaint stemming from a requirement that would normally be unlawful under the ADA. Further, the exemption would assist Kalwun to provide culturally appropriate services to young female Aboriginal and Torres Strait Islander children and young people.[43]

[54] I do not consider the exemption on the basis of gender identity is necessary for the reasons set out below.

Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

[55] The joint submissions set out that there exist less restrictive ways to achieve the Applicant's stated objective of promoting gender balance to enhance culturally sensitive service delivery.[44] The less restrictive mechanism is identified as treating trans people in accordance with the sex with which they identify, which is what the Applicant proposes to do. It is submitted that this approach would support the goal of gender balance, respect the rights of trans people and uphold compliance with the objectives of the AD Act.[45] I agree.

Whether the exemption is in the community interest?

[56] Consistent with VP O'Connor's decision to grant the previous exemption on the basis of sex,[46] I accept that the support provided by the Applicant to vulnerable Aboriginal and Torres Strait Islander children, young people and their families is a 'much needed service' fulfilling a community need and is therefore in the community interest.[47] Expanding the exemption to other teams within the Division logically facilitates that capacity more broadly.

Whether any other persons or bodies support the Application for exemption?

[57] As already canvassed in this decision, the QHRC, QCU and Equality Australia and LGBTI Legal Service agree the exemption should be granted on the basis of sex. No bodies that made submissions in response to the amended application support the grant of the exemption on the basis of gender identity.[48]

Whether it is reasonable and appropriate to grant the exemption?

[58] For the reasons set out above I consider it appropriate to grant the exemption on the basis of sex only. The exemption sought on the basis of gender identity is not necessary due to the approach proposed to be taken by the Applicant.

[59] VP O'Connor noted in his earlier decision to grant the exemption that to fail to grant the application would severely curtail or 'prevent' the delivery of services by the Applicant.[49] Not granting the exemption on the basis of gender identity should have no effect due to the recruitment approach identified by the Applicant and supported by relevant stakeholders.

Requirements of the Human Rights Act 2019 (Qld)

[60] The Commission is acting in an administrative capacity when deciding exemption applications,[50] and must have regard to any relevant matters arising pursuant to the Human Rights Act 2019 (Qld) ('HR Act').

[61] The HR Act holds as its object to protect and promote human rights, to build a culture in the Queensland Public Sector that respects and promotes human rights and to promote dialogue about the nature, meaning and scope of human rights.[51]

[62] Two relevant ways that these objects are to be achieved is by:[52]

• public entities must act and make decisions in a way that is compatible with human rights;[53] and
• requiring courts and tribunals to interpret statutory provisions in a way that is, to the extent possible, consistent with their purpose and compatible with human rights.[54]

[63] An act, decision or statutory provision will be 'compatible with human rights' where it does not limit a human right,[55] or limits it only to the extent that it is reasonable and demonstrably justifiable.[56]

[64] Section 58 of the HR Act provides as follows:

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

(2) Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

(3) Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.

(4) This section does not apply to an act or decision of a private nature.

(5) **For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to - **

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights.

(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).

[65] Courts and Tribunals are not public entities except when they act in an 'administrative capacity'.[57] As the Commission in deciding exemption applications is acting in an administrative capacity, it is a public entity to which s 58 of the HR Act applies,[58] so this will be considered in my determination of whether to grant an exemption pursuant to s 113 of the AD Act.

[66] Section 7 of the HR Act defines human rights as the 'rights stated in part 2, divisions 2 and 3'.

[67] The right to recognition and equality before the law is enshrined in s 15 of the HR Act:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy a person's human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

[68] The QCU submit that s 28 of the HR Act, which protects the cultural rights of Aboriginal peoples and Torres Strait Islander Peoples, is a relevant consideration also in this application:

28 Cultural rights - Aboriginal peoples and Torres Strait Islander peoples

(1) Aboriginal peoples and Torres Strait Islander peoples hold distinct cultural rights.

(2) Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community -

(a) to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and

(b) to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and

(c) to enjoy, maintain, control, protect and develop their kinship ties; and

(d) to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and

(e) to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources.

(3) Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture.

[69] The right to privacy is set out in s 25 of the HR Act:

(a) not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have the person's reputation unlawfully attacked.

[70] The right to privacy may be undermined by the grant of the proposed exemption on the basis of gender identity where determination of a person's gender identity would necessitate asking questions, potentially creating a workplace culture where workers feel pressured to disclose sensitive information.[59]

[71] Section 13 of the HR Act provides that human rights may be lawfully subject to limitation as follows:

(1) 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.

(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -

(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g) the balance between the matters mentioned in paragraphs (e) and (f).

[72] The HR Act binds all persons:

(1) This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

(a) a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and

(b) the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3: and

(c) a public entity, to the extent the public entity has functions under part 3, division 4.

(3) Subsection (2) does not limit or otherwise affect -

(a) another function conferred by this Act on an entity mentioned in the subsection; or

(b) a function conferred by this Act on any other entity.

(4) Nothing in this Act makes the State liable to be prosecuted for an offence.

[73] Therefore, to the extent a Court or Tribunal has functions under Pt 2 and Pt 3, Div 3 of the HR Act, then the HR Act applies.

[74] Section 48 of the HR Act sits in Pt 3, Div 3 of the Act and sets out as follows:

(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(a) an Act or provision of an Act that is not compatible with human rights; or

(b) a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.

(5) This section does not apply to a statutory provision the subject of an override declaration that is in force.

[75] Accordingly, s 48 applies and it means s 113 must be interpreted in a way that is compatible with, or most compatible with, human rights, to the extent possible while remaining consistent with its purpose.

[76] Vice President O'Connor has observed the following in Re: Proximity Advisory Services Ptd Ltd (citations omitted):[60]

[41] Section 48 of the HR Act is in Part 3, Division 3. By operation of that section, s 113 of the Act must be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with its purpose. The protection from discrimination in the Act is reinforced and must be read with the identified rights in the HR Act. This requires the exemption to be either a measure for assisting people disadvantaged by discrimination, or for activities that limit human rights reasonable and no more than is demonstrably justified in a free and democratic society (in accordance with ss 8 and 13 of the HR Act).

[42] Whether an exemption under s 113 of the AD Act would affect human rights can be determined by reference to the effect of the exemption if granted. The effect of the exemption sought would be to allow the applicants to discriminate on the basis of race in the work and work-related areas.

[43] The onus of establishing that the activity/s to which the exemption is sought is justified under s 13 lies with the applicants, and the standard of proof is on the balance of probabilities.

Is the exemption reasonable and justified in accordance with s 13 of the HR Act?

[77] The effect of the exemption sought would be to allow the Applicant to discriminate on the basis of 'sex' in the work and work-related areas. This necessitates the Tribunal consider whether the proposed limitations are reasonable and justifiable in accordance with s 13 of the HR Act.[61]

[78] The proposed exemption for the attribute of sex is reasonable and justified in accordance with s 13 of the HR Act.

What human rights may be affected by the grant of the exemption - s 13(2) of the HR Act

[79] The human rights that may be affected by the grant of the exemption are the right to recognition and equality before the law,[62] and the right to privacy.[63]

The nature of the human right - s 13(2)(a) of the HR Act

[80] The affected human rights are identified in paragraph [79] above.

[81] In Lifestyle Communities Ltd (No 3) the Victorian Civil and Administrative Tribunal wrote the following:[64]

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character.

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

[82] The nature of the rights sought to be limited are fundamental and any limitation must be carefully considered.

The nature of the purpose of the limitation - s 13(2)(b) of the HR Act

[83] The QHRC submit that the Commission must consider whether the limitation is demonstrably justified in a free and democratic society based on human dignity, equality and freedom, in accordance with s 13 of the HR Act,[65] and point to the following description of the relevant test in Re Lifestyle Communities Ltd: [66]

To establish a limitation is reasonable and justified in a free and democratic society, the purpose (the end) of the limitation must be legitimate and of sufficient importance to warrant overriding a human right protected by the Charter. Further, the limitation (the means) must be proportionate and appropriate for achieving that purpose.[67]

[84] It is open to the Commission, says the QHRC, to find that the limitation on the basis of sex is reasonable because the exemption will assist the provision of programs and services to assist vulnerable people.[68]

[85] The joint submissions of Equality Australia and LGBTI Legal Service set out that while there may exist sufficient justification to limit the right to equality to enable recruitment of appropriate persons to assist clients in relation to men's or women's business, there is no such justification for the broad limitation on gender identity.[69]

[86] I concur with the submissions of the QCU and QHRC that proper consideration of cultural rights protections in section 28 of the HR Act weighs in favour of granting the exemption sought by the Applicant. So too does the limitation being for the purpose of assisting to promote and provide services to those considered to be at risk.

[87] The purpose of the limitation sought is to ensure balance and certainty to the organisation in the provision of appropriate and culturally sensitive services to vulnerable people, while minimising the risk of discrimination complaints. The proposal is proportionate as it is only enlivened when it is necessary to achieve or restore balance across nominated teams. The exemption will operate only to the extent reasonably necessary in relation to advertising, recruitment and employment practices for the nominated workers. The limitation is appropriate for achieving that purpose.

[88] The proposed exemption on the attribute of gender identity is unnecessary and is therefore not a demonstrably justifiable basis upon which to limit human rights.

The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose - s 13(2)(c) of the HR Act

[89] There is a relationship between the limitation on human rights and the purpose of the orders sought by the Applicant. I find the limitation helps to achieve the purpose for which it is sought.

[90] The purpose of the limitation is to enable the Applicant to hire, where needed, individuals competent to deal with men's business and women's business and to maintain balance in the team. The terms of the exemption are logically connected to the purpose sought to be achieved. The grant of the exemption on the basis of 'sex' only, ensures the exemption does not go beyond the purpose of the exemption.

Whether there are any less restrictive and reasonably available ways to achieve the purpose - s 13(2)(d) of the HR Act

[91] As considered at paragraph [55] of this decision, the joint submissions considered that the less restrictive way to achieve the Applicant's objective of promoting gender balance to deliver culturally competent services was to treat trans people in accordance with the sex with which they identify, which I noted is what the Applicant proposes to do.

[92] The interested parties did not identify any less restrictive and reasonably available ways to achieve the purpose in relation to the exemption sought on the basis of sex.

[93] I am satisfied that there is not any less restrictive and reasonable way to achieve the purpose other than by grant of the exemption on the basis of sex.

Importance of the purpose of the limitation, the importance of preserving the human right and finding a balance - s 13(2)(e)-(g) of the HR Act

[94] On the material before me, I consider that the limitation on human rights is consistent with the purpose for which it is sought and is proportionate to and appropriate for achieving that purpose.

[95] For the reasons outlined in this decision I find it is reasonable and appropriate to grant the exemption on the attribute of sex only.

[96] I note the exemption is requested for five years. In the absence of any compelling reasons or objections I will grant the order for a period of five years from the date of this Decision.

[97] It is not necessary to grant the exemption on the attribute of gender identity as the Applicant has identified a non-discriminatory approach. That part of the application is dismissed.

1. Pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld), the Tribunal grants the Applicant an exemption from the operations of sections 14, 15, 15A, 124 and 127 of the Act limited to the attribute in s 7(a) "sex".
2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for workers in the following teams at Kalwun Development Corporation Limited:
   • Youth Wellbeing
   • Family Wellbeing
   • Family and Domestic Violence
   • Empowered and Connected Families
   • Kinship and Foster Care
   • Family Participation Program
   • Tertiary Family Intervention Service.
3. The exemption shall apply to Kalwun Development Corporation Limited for a period of five years from the date of this decision.

[1] Form 83, filed 11 March 2025; Form 83, filed 3 June 2025, 3.

[2] Re: Kalwun Development Corporation Limited [2019] QIRC 141, [19] (VP O'Connor).

[3] The previous exemption was on the basis of sex, not gender identity, and involved exemption from the operations of s 14, s 15, s 15A, s 124 and s 127 of the AD Act for a period of 5 years.

[4] Proximity Advisory Services Ptd Ltd and Systems Planning and Analysis, Australia Pty Ltd [2025] QIRC 048, [12] (O'Connor VP).

[5] Submissions of the Feminist Legal Clinic, filed 29 April 2025, 1-2.

[6] No further submissions were received from the Feminist Legal Clinic.

[7] Amended Application, filed 3 June 2025, 3-4.

[8] Anti-Discrimination Act 1991 (Qld) s 7.

[10] Re Kalwun Development Corporation Ltd [2019] QIRC 141, [6] (O'Connor VP); Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133, [34] (Hartigan DP).

[11] Re the Women's Legal Service Inc [2019] QIRC 60, [18] (O'Connor VP).

[12] [2019] QIRC 60, [18], citing Downer EDI Mining [2013] QCAT 99, [16].

[13] Re: Sera's Women's Shelter Incorporated [2024] QIRC 199.

[15] [2025] QIRC 048.

[16] Ibid, [71] citing Re Boeing Australia Holdings Pty Ltd & Related Entities [2003] QADT 21 (19 November 2003).

[17] Affidavit of Kieran Chilcott, filed 3 June 2025, 3.

[18] Re: Sera's Women's Shelter Incorporated [2024] QIRC 199.

[19] Supplementary submissions of QHRC, filed 17 June 2025, 1.

[20] Submissions of the QHRC, filed 15 April 2025, 1.

[21] Supplementary submissions of QHRC, filed 17 June 2025, 1. Supplementary submissions of QHRC, filed 17 June 2025, 1.

[22] Supplementary submissions of QHRC, filed 17 June 2025, 1-2.

[23] Supplementary submissions of QHRC, filed 17 June 2025, 2.

[24] Supplementary submissions of QHRC, filed 17 June 2025, 2.

[25]Re: Sera's Women's Shelter Incorporated [2024] QIRC 199; Supplementary submissions of QHRC, filed 17 June 2025, 2.

[26] QCU Submissions filed 18 June 2025, [10].

[27] QCU Submissions filed 18 June 2025, [15].

[28] QCU Submissions filed 18 June 2025, [17].

[29] QCU Submissions filed 18 June 2025, [17].

[30] QCU Submissions filed 18 June 2025, [18].

[31] QCU Submissions filed 18 June 2025, [19]-[20].

[32] Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960; QCU Submissions filed 18 June 2025, [21].

[33] QCU Submissions filed 18 June 2025, [21] - [22].

[34] Joint Submissions of Equality Australia and LGBTI Legal Service ('Joint Submissions') filed 17 June 2025, [9]-[10].

[35] Joint Submissions, filed 17 June 2025, 4.

[36] Joint Submissions, filed 17 June 2025, [23] - [26].

[37] Joint Submissions, filed 17 June 2025, [27]-[29].

[38] Joint Submissions, filed 17 June 2025, [34].

[39] Re: Sera's Women's Shelter Incorporated [2024] QIRC 199, [118] Dwyer IC.

[40] Joint Submissions, filed 17 June 2025, [37].

[41] Joint Submissions, filed 17 June 2025, [38]-[39].

[42] Affidavit of Mr Kieran Chilcott, filed 3 June 2025.

[43] [2019] QIRC 141, [8].

[44] Joint Submissions, filed 17 June 2025, [43].

[45] Joint Submissions, filed 17 June 2025, [43].

[46] [2019] QIRC 141.

[47] [2019] QIRC 141, [10].

[48] The Feminist Legal Clinic's submissions on the initial application understood that application to request an exemption on the basis of both 'sex' and 'gender identity'. The Feminist Legal Clinic supported the grant of the exemption with respect to both attributes. These submissions were made without the benefit of the amended application which directly addressed these points and further submissions were not made in response to the amended application.

[49] [2019] QIRC 141, [13].

[50] Re: Ipswich City Council [2020] QIRC 194, [25]-[30] (Merrell DP).

[51] Human Rights Act 2019 (Qld) s 3.

[52] Ibid s 4.

[53] Ibid s 4(b).

[54] Ibid s 4(f).

[55] Ibid s 8(a).

[56] Ibid s 8(b).

[57] Ibid s 9(4)(b).

[58] Submissions of the QHRC, filed 15 April 2025, 2.

[59] Joint submissions, filed 17 June 2025, [42].

[60] Re: Proximity Advisory Services Ptd Ltd and Systems Planning and Analysis, Australia Pty Ltd [2025] QIRC 048.

[61] Re: Proximity Advisory Services Ptd Ltd and Systems Planning and Analysis, Australia Pty Ltd [2025] QIRC 048, [47] (VP O'Connor).

[62] Human Rights Act 2019 (Qld) s 15.

[63] Ibid s 25.

[64] Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869.

[65] Submissions of QHRC, filed 15 April 2025, 2-3.

[66] Submissions of QHRC, filed 15 April 2025, 2-3.

[67] [2009] VCAT 1869, [326] (Bell P).

[68] Submissions of QHRC, filed 15 April 2025, 3.

[69] Joint Submissions, filed 17 June 2025, [41].