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[2019] QIRC 60
General information, not legal advice.
Queensland Industrial Relations Commission
2019-05-09
O'Connor VP
Original judgment source is linked above.
ANTI-DISCRIMINATION - EXEMPTION - DISCRIMINATION ON THE BASIS OF SEX AND GENDER IDENTITY - whether exemption for discrimination in work and work-related areas is available - whether general exemption for discrimination available - whether exemption is necessary - whether exemption is reasonable and appropriate - where exemption would provide certainty - exemption granted
City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450
Downer EDI Mining [2013] QCAT 99
Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21
Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16
Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038
Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782
[1] On 7 March 2019 The Women's Legal Service (the Applicant) filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 Qld ("the Act").
[2] An "exemption" is permission granted by a Court or Tribunal to a particular person or organisation which permits, usually temporarily, the non-compliance with a statutory obligation not to discriminate. An exemption acts as a complete defence to a complaint of unlawful discrimination provided that the complaint falls within the parameters of the exemption.
[3] For the reasons which follow I grant the application.
[4] The Applicant was founded in 1984 by a group of women from the legal profession and from a range of community organisations who identified legal services as a key gap in services for women. The organisation is founded upon feminist philosophy and principles and in its 35-year history has maintained those foundations in providing services to women.
[5] The Applicant provides free legal and social work assistance to vulnerable women in Queensland in respect of domestic violence, child protection, complex family law matters, sexual assault and privilege matters. Each year the Applicant helps approximately 16,000 vulnerable Queensland women to obtain legal and social support. The Applicant also functions to raise community awareness of domestic violence and sexual violence, advocating for increased and improved access to services for women, and working with government and community stakeholders in meaningful reform.
[6] The Applicant only employs women. There are currently 46 full-time positions comprising lawyers, social workers, administration employees, a volunteer co-ordinator, communications officer, human resource manager, finance officer as well as fundraisers. In addition to the employed staff, the Applicant currently has a roster of approximately 270 volunteers, all of whom are women.
[8] Whilst the Applicant did not specifically request to be exempted from s 124 (unnecessary questions) I am of the view that it would be prudent to include this section within the scope of the exemption. In this regard, I note that the Applicant advises that it may need to ask "necessary questions" to ensure that that only women staff are advertised for, recruited and employed.
[9] The exemption is sought because the women who require assistance from the Applicant are vulnerable women who:
(a) Have been subjected to personal violence, as a result of either domestic or sexual violence at the hands of a male;
(b) Due to their experiences are often traumatised and/or fearful of men; and
(c) Are seeking support and assistance from women in an environment where they feel safe.
[10] Before deciding the application, the Queensland Industrial Relations Commission ("the Tribunal") is required to give the Commissioner of the Anti-Discrimination Commission Queensland (ADCQ) a copy of the application and any material filed in support of the application.[3] On 28 March 2019 the ADCQ advised the Tribunal:
The Commission's view is that permitted discrimination should be minimised to the greatest extent possible. The Commission suggests that if the Tribunal is minded to grant an exemption in this case that it is expressed in a way that limits its application to the imposition of a requirement that workers are women or identify as women.
The Commission notes that the Applicant refers to the layout of its current premises being such that non- front-line staff will still come into contact with the clientele, so that it is not possible to employ men or transgender men. If the premises situation changes in the future, the Commission would expect that discrimination for back-of-office positions would no longer be necessary.[4]
[11] On 3 April 2019 the Applicant's solicitors wrote to the Tribunal responding to two matters arising from the submissions of the ADCQ Commissioner. First, that the wording suggested by the ADCQ may permit women identifying as males, and possibly presenting as males, to seek employment with the Applicant. The Applicant says it is crucial that its staff both present and identify as women.
[12] The Applicant submits the need for the exemption on the basis of both Sex and Gender Identity arises in circumstances where a "male, or a women transitioning to be a male, or a women identifying and/or transitioning to be a male is of female biological sex".
[13] If the Applicant was only granted an exemption on the basis of Sex it would mean that the Applicant could not discriminate on the basis that the individual identifies, lives and presents as a male.
[14] Further, the Applicant submits that it is faced with operational difficulties because of differing State and Federal laws regarding an individual changing their sex on proof of identity documents. This makes it difficult for the Applicant to manage the risk and impact for its clients and ensure that its staff are women.
[15] An exemption for the attributes of both Sex and Gender Identity would allow the Applicant to manage circumstances where a candidate or an existing staff member identified, transitioned or commenced identifying or transitioning from a women to a male whilst a staff member or during the recruitment process. The exemption would allow the Applicant to manage recruitment and employment of its staff as well as enable its staff to ask necessary questions to ensure that only women staff are advertised for, recruited and employed.
[16] The second matter raised by the Applicant was with respect to the ADCQ's comments regarding the layout of the Applicant's premises. The Applicant says that the exemption is appropriate regardless of office layout.
[17] The Applicant says given the organisations size, reliance on funding to support its provision of services, the office layout and its operational structure it is not possible for the Applicant to create a role for a male to perform. The layout of the office and the way in which the Applicant provides its services and programs to clients means that, even if a role could be created, these males would still be visible at the premises and there would likely be interaction with vulnerable women, who are choosing to seek support and assistance from the Applicant.
[18] 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 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.[5]
[19] The power to grant an exemption from the operation of discrimination legislation is discretionary. In Re Boeing Australia Holdings Pty Ltd & Related Entities, the then President of the Queensland Anti-Discrimination Tribunal, Walter Sofronoff QC said that in deciding whether it is reasonable and appropriate to grant the exemption there are a number of considerations that may be relevant.[6] Such considerations include:
[20] The conduct sought to be exempted must constitute unlawful discrimination otherwise an exemption will not be necessary. It may be the case that much of the conduct sought to be exempted by the Applicant falls within a general statutory exemption.[11] In Re Women's Legal Service Inc, Senior Member Endicott analysed whether the attribute of being a woman could constitute a genuine occupational requirement for many of the services provided by the Women's Legal Service.[12] I do not propose to rehearse that analysis as the Applicant accepts that there are potentially roles in its workforce which do not require the employee to be a female, however, the circumstances are such that employing a male would not be appropriate.
[21] I now turn to the affidavit of Ms Angela Lynch, Chief Executive Officer of the Applicant dated 7 March 2019 filed in support of the Application. Ms Lynch deposes that there was an incident on 30 August 2017 where a male IT contractor inadvertently came into contact with a client who had recently been the victim of rape. As a result of the interaction the client started shaking, crying and saying she did not feel safe and was asking why there was a man present. Ms Lynch states that it took a considerable amount of time for both a lawyer and social worker to calm and reassure the client. Ms Lynch states that in her experience the potential risk and impact has significantly increased since 2017 with the introduction of the "Counselling Notes Protect Service" which provides assistance to women who are traumatised as a result of sexual violence.
[22] In my view, the incident deposed to by Ms Lynch highlights the potential risk and impact associated with a male presence. Even if there are positions at the Applicant which do not involve contact with the clients, the presence of a male will only increase the risk of an incident, such as the one on 30 August 2017.
[23] I accept that the exemption is necessary regardless of the layout of the premises.
[24] I also accept the submissions of the Applicant that it is necessary to grant the exemption for both the attribute of Sex and Gender Identity.
[25] In summary, the granting of the exemption is necessary because not all of the positions (whether employed or voluntary) at the Applicant would be protected by a general exemption under the Act. Therefore, the granting of an exemption is necessary as it provides certainty for the Applicant; certainty that it can conduct targeted recruiting and other such activities without concern that its conduct is unlawful.[13]
Whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought
[26] The Applicant has not identified any non-discriminatory ways of achieving the object or purpose for which the application is sought.
whether the exemption is in the community interest
[27] As is stated above, each year the Applicant helps approximately 16,000 vulnerable Queensland women to obtain legal and social support. Clearly there exists a significant community need for the services offered by the Applicant. The evidence before this Tribunal supports a conclusion that, in order for the Applicant to continue to provide its current services in the manner that it does, would require the exemption. Therefore, the exemption is in the community's interest.
whether any other persons or bodies other than the Applicants support the application
[28] The Application annexes letters of support from three organisations: Community Legal Centres Queensland; Cultural Advocacy Legal Mediation; DVConnect.
[29] Community Legal Centres Queensland is a peak body for Queensland community legal centres and provides support and advocacy for 34 independent community legal centres operating across Queensland. The organisation states that it understands the benefit to vulnerable women being able to access free legal and social work assistance from women in an environment where they feel safe to seek support and assistance.
[30] Cultural Advocacy Legal Mediation provides a range of services including assisting with client engagement and representation with First Nation Women. The organisation states the provision of a culturally safe service environment will not be realised where the assistance offered to First Nations' women is provided by men. Issues involving domestic and family violence and/or sexual violence are fraught with cultural gender restrictions simply due to the intimate nature of the subject matter.
[31] DVConnect provides a state-wide telephone service to women who are experiencing domestic or family violence 24 hours a day 7 days a week. The organisation says that based on the work it undertakes it has seen the benefit to vulnerable women being able to access free legal and social work assistance from women at the Applicant.
[32] For reasons articulated above I am of the view that it is reasonable and appropriate to grant the exemption.[14] I make the following orders:
[5] Downer EDI Mining [2013] QCAT 99, [16].
[6] [2003] QADT 21 (19 November 2003)
[7] Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16.
[8] City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.
[10] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.
[12] [2014] QCAT 315, [16]-[20].
[13] Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038, [16].
[14] Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.