Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228 (26 June 2023)

[2] The application seeks a broad and complete exemption from the operation of those provisions, without any limitation as to whether there are particular circumstances to which the exemption might apply in the conduct of the affairs of the Applicant.

[3] The Applicant owns the land on which there is situated a manufactured home park, operated by the Applicant, known as Greenbank Gardens Manufactured Home Park, or Greenbank Gardens Village, in Park Ridge, in the City of Logan, just south of Brisbane. The specified basis for the application is that it is sought for the purposes associated with the Applicant's ownership and operation of the manufactured home park by the provision of special accommodation solely for persons aged 50 or older. The regulatory structure for these Parks is to be found in the Manufactured Homes (Residential Parks) Act 2003 ("the Manufactured Homes Act").

[4] A feature of these parks is that the residents in the Parks own their own manufactured homes and have site agreements with the applicant. There are 214 sites and approximately 330 residents, the majority of whom are aged over 65 years. It is concerning that nothing in the material identifies how the applicant ensures that the homes are only occupied by owners or how it ensures the homes are purchased only by people over the age of 50. No site agreements, licences or other documents are included in the material relied on. There is no description of how these exemptions, if granted, would facilitate those purposes. Indeed, the supporting material is sparse and lacking in detail.

[5] The homes each occupy a particular site, with the land on which they are situate owned by the Applicant, and although the homes are demountable. Occupancy is protected by law by the requirement for a perpetual site agreement in favour of the owner/ occupier under the Manufactured Homes Act. The material shows that these homes in this Village are saleable at prices around $245,000.

[6] The application does not seek an exemption from the operation of section 127 of the AD Act which provides that 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.

[7] The exemption is sought for the maximum period of five years.

[8] The application states that the Village is attractive to retirees, and describes the facilities as comprising:

(a) Two swimming pools with rails and easy access for the elderly.

(b) A bowling green with attached bowling clubhouses.

(c) A tennis court with synthetic grass.

(d) A practice putting green and driving nets.

(e) A woodwork shop.

(f) A library serviced by the Logan City Council

(g) A gymnasium.

(h) A recreational hall with attached kitchen with stage facilities, audio equipment, and dressing room facilities.

(i) Two barbecue facilities.

[9] Although the applicant does not expressly state the purpose for which it seeks the exemption, the application and the reports of bull + bear Economics (comprising letters dated 6 July 2022 and 24 October 2022 to the applicant) suggest that the purpose is to provide affordable housing for persons 50 and over, who may be retired persons.

[10] Much of the statistical data and information in the bull + bear Economics reports relates to 'retirement villages' more broadly, rather than manufactured home parks. Information specific to the applicant shows that:

(a) The average sales price for home in the Village is significantly lower than the median sale price for detached dwellings in the surrounding suburb of Park Ridge.

(b) The Village is a key provider of alternative housing typologies in the area. Indeed, it is the second largest provider with 214 homes, the largest providing 446 and the rest well under 100.

(c) The number of residents aged over 50 years in the catchment area for the Village is anticipated to increase to almost a third of the population in 2041.

(d) The housing stock within the catchment area is largely dominated by detached dwellings, and there are limited alternative housing typologies in the area to accommodate downsizers or those who are financially disadvantaged.

(e) Overall, the 55 years and over population of the catchment area is financially disadvantaged compared to the general population.

(f) An exemption renewal will mean the Village can continue to provide appropriate housing typologies at an affordable price to the age cohort who find these communities desirable

[11] Despite the description of the physical areas for which the exemption is sought, the material which is filed in support of the application is bereft of a description of the ways in which, in practical effect, this exemption if granted would operate.

[12] The matters stated in the application are rather adverse to the position that an exemption is either required or appropriate because the Applicant asserts that the evidence shows that the wider (presumably younger than 50) community prefer to live in so called traditional homes and that younger persons do not find living in a community that is dominated by an elderly population appealing. Accepting that to be so for the sake of this reasoning, there could be little doubt that the applicant would have no difficulty is attracting the age group it prefers without the necessity for exemptions

[13] The application also asserts that the exemption will be for the benefit of the community. How that is so is not explained.

[14] Each of the "bull + bear" consultants' letters filed in support of the application contains an identical paragraph which states:

"Overall, the 55 years and over population of the catchment area is financially disadvantaged compared to the general population. Growing dwelling prices across South East Queensland and the risk of ongoing inflationary pressures reduces retiree purchasing power, and with limited opportunity to re-earn, poses an additional threat to an already disadvantaged cohort".

[15] The second "bull + bear" consultants' letter asserts that:

"manufactured home parks are perceived as a relatively safe and secure residential living option by the senior's population. We would contend that the perceived security and safety benefits offered to seniors at a manufactured home park would be eroded at Greenbank Gardens should the exemption not be granted".

[16] Each of the "bull + bear" consultants' letters filed in support of the application contains an identical paragraph which states:

"The granting of the exemption renewal will mean that Greenbank Gardens can continue providing appropriate housing typologies at an affordable price to the age cohort who find these communities desirable. Granting the exemption will not disadvantage the broader community, with new residential developments across Logan City providing sufficient housing choice for persons of income earning age".

[17] No data nor analysis of any kind is produced to seek to sustain these propositions. In particular the proposition that there is presently enough residential housing available in Logan city for all who presently wish to live there. What for example are the "new residential developments across Logan City providing sufficient housing choice for persons of income earning age"? It also contains an obvious and questionable opinion about how housing markets operate, which is that artificially keeping low the price of these kinds of manufactured home village units is to the advantage to aged persons. It may be to persons who are first seeking to come into that market, but is that even arguably true for those already in it?

[18] It also contains unexamined assumption, the validity of which is not obvious, namely that without an exemption it will not be possible to provide this housing to the aged. If there is in fact no real demand from persons other than those over 50, as these reports suggest, there is no necessity to discriminate against any person who is not over 50.

[19] One of the other things that is said in the 2nd, "bull + bear" consultants' letter says is that "by providing housing typologies specifically targeted towards the senior's cohort, this would free up housing stock more suited to a younger age cohort (e.g., families) within the catchment, assisting with housing affordability more broadly."

[20] That proposition seems to me to be inherently implausible, and for which there is no foundation shown. Is the consultants' proposition that by providing housing "targeted" towards persons over 50 would free up housing stock more suited to a younger age cohort and they are "families" within the catchment, thereby assisting with housing affordability more broadly. Inherent in that proposition are 2 problems. First that the availability of stock within the catchment in the relatively low numbers that are involved with this estate will make houses more affordable The second is that persons who are not already residents of the village will be significant in number and own their own homes and which will be put on to the market so that they can come into this village. No data or analysis is put forward to support these assertions. There is not even evidence that there are any existing houses available to any new potential village residents, least of all that there is or would be such a large number of them that the result would be flood of new housing stock in the Logan area.

The proper approach to section 113 applications and necessary caution

[21] Before deciding the application, the Tribunal must give the Queensland Human Rights Commission (QHRC) a copy of the application and a copy of the material filed in support of the application and must have regard to any submission made by the QHRC on the application, including a submission on the process for considering the application.

[22] Under the AD Act, s 7(f), s 83 it is unlawful to discriminate against a person on the basis of age in the terms on which accommodation is offered or by failing to accept an application for accommodation. To publish or display an advertisement that describes the centre or facility as a facility for people over the age of 50 years would, potentially, indicate that a person intends to act in a way that contravenes section 127 of the AD Act. Section 127 of the AD Act provides that 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. It is not unlawful to promote the Park as suitable for older people and to target marketing at that demographic; see Ghostgum Developments Pty Ltd [2015] QCAT 500 at [49]; and ABC Business Australia Pty Ltd [2013] QCAT 719 at [14].

[23] The tribunal can grant an exemption from specific provisions of the AD Act in accordance with section 113 of the AD Act.

[24] In Surtie Enterprises Pty Ltd ATF The Surtie Enterprises Unit Trust [2017] QCAT 323, which was an earlier application by this applicant, and again in River Glen Haven Over 50s Village [2021] QCAT 26, Member Traves considered the nature and extent of the statutory discretion in section 113 and made the following observations with which I agree. I adopted and applied those in the post Human Rights Act context in my decision in Burleigh Town Village (3) [2022] QCAT 285 (Burleigh Town Village).

[25] The granting of an exemption is discretionary. There are no express criteria for the exercise of the discretion.

[26] The statutory discretion, which has the potential to affect rights, is not absolute and unfettered, in that the extent of a discretionary power is to be determined by reference to the subject matter, scope and purpose of the statute under which it arises.

[27] Finally, although the exercise of the discretion is not confined, and acknowledging the risks in applying a "self-imposed framework" that may not "embrace all considerations which could possibly fall within the objects, scope and purpose of the Act", a number of decisions have outlined considerations which may be relevant to the exercise of the discretion. They include whether the exemption is necessary; whether it is appropriate and reasonable to grant the exemption and whether the exemption is in the community interest.

[28] As I mention later, another acknowledged issue is what the effect of not granting it would be.

[29] The Tribunal is acting in an administrative capacity when deciding an exemption application under section 113 of the AD Act. Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164; Re: Ipswich City Council [2020] QIRC 194; Re: Mackay Regional Council [2022] QIRC 064. When acting in an administrative capacity, the tribunal is a public entity, and section 58 of the Human Rights Act 2019 (HR Act) applies to require the tribunal to give proper consideration to, and make a decision in a way that is compatible with, human rights.

[30] The application is opposed by the QHRC and it has set out in lengthy submissions to the Tribunal dated 26 September 2022, the basis upon which the exemption application is opposed. Many of the matters raised seem to be generic in nature and do not pertain to this particular proposed exemption, but are perhaps relevant to other sorts of exemptions based on age discrimination.

[31] In my reasons in Burleigh Town Village, I observed that these applications have historically if not invariably, been heard on the papers with no opportunity to challenge assertions made or evidence produced in support of the Applications. They are not publicly notified, not even necessarily brought to the attention of parties that might be contradictors to the Applications, not for that matter other interested parties, for example in this case, the owners or residents of the manufactured home park whose interests are sought to be protected or affected or whose property interests might be affected by a positive outcome for the applications.

[32] In my reasons in Burleigh Town Village, I also observed that it is not difficult to imagine a circumstance where the owner an aged accommodation facility might obtain very significant commercial advantages from a situation in which an exemption of this kind exists. None of this evidence is made available for public scrutiny and none of it open to be challenged, for example by persons who may have their interests affected or be subjected to discrimination .Some discriminatory proposals may be presented as having advantages for disadvantaged individuals or perhaps even conceptually individuals who are discriminated against, or be said to be associated with benefits to those individuals, but in the long term there may be other significant outcomes which are under-explored in the material presented to the Tribunal. No such issues arise here.

[33] In my reasons in Burleigh Town Village, I also observed that because there is no mechanism when these applications are heard on the papers for there to be a challenge to the stated motivations or intentions of an Applicant in seeking an exemption, there is no real opportunity to ascertain whether there are other significant outcomes that flow to an Applicant which are not mentioned or addressed in the application material. For example, there might conceptually be a commercial basis for an application driven by the notion that by limiting the categories of residents to those who would not live in the park for extended periods, or would live there for shorter periods, there may well be a commercial advantage each time one of these homes changes hands, for example if a fee were to be paid each time it changed hands. Another hypothetical example might be that attracting a particular class of resident to such a residential facility, for example those who are on welfare benefits, might provide ease of administration and confidence that rental payments would be paid regularly and on time.

[34] As I also said in my reasons in Burleigh Town Village, the limitations that are presented when applications are heard on the papers mean that the Tribunal must be astute to ensure that the decisions it makes are objectively sustainable and reasonable, and do not take at face value everything that is put forward in support of the grant of an exemption. The Tribunal should be satisfied that there are not unforeseen or unintended consequences in granting such exemptions. The interests of unheard from parties need to be considered where possible. That makes the task a difficult one.

[35] The 2017 exemption expired on 19 September 2022. The Applicant applied on 15 July 2022 only a matter of 2 months before the earlier exemption expired and did not obtain a further exemption to cover the period since 19 September 2022. Somehow, it has managed to continue to operate notwithstanding the absence of an exemption for almost 9 months. The Applicant does not address this issue at all in its submissions.

[36] I accept, on the basis which was the subject of analysis by Member Gordon in Miami Recreational Facilities Pty Ltd [2021] QCAT 378 at [104]- [107], that the Tribunal has power in effect to grant the exemption from the day of the expiry of the last exemption, giving the practical effect that the Tribunal's order would take effect retrospectively. In that regard she said (footnotes omitted):

[105] Section 127 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) says that a decision of the tribunal takes effect either when it is made or such later date or time which may be specified. This does not seem to be an impediment. This is because it is possible to say that a retrospective tribunal order does indeed not have any effect until it is made.

[106] Instead, it can be seen from the approach to the question whether the tribunal can make a retrospective order taken both by Justice Mullins in Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49 and Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380 is that it is determined by the terms of the enabling Act, where this contains the power under which the tribunal is acting.

[107] Here the power under which the tribunal is acting is that in section 113 of the ADA, and that is confirmed by section 174C of the ADA. There is nothing in the terms of section 113 which shows one way or the other whether a retrospective exemption can be granted. However, section 113(7) of the ADA says that an exemption may be renewed for further periods of not more than 5 years. The natural meaning of these words indicate that the tribunal can ensure in an appropriate case that there is no gap between the expiry of an exemption and the renewal date. In the circumstances it does appear that a retrospective order can be made at least in the case of renewals. Here this certainly would seem to be fair because the application was made before the expiry date but for one reason or another the tribunal has only been able to make a decision about it now.

[37] This Tribunal has previously granted this Applicant two previous exemptions, although neither of them was considered in circumstances in which the HR Act was operable; see Re Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust [2012] QCAT 369 (14 August 2012) Member Gardiner; Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust [2017] QCAT 323 (19 September 2017) Member Traves.

[38] The HR Act commenced its operation on 1 January 2020 and has considerable significance for the purposes of considering whether to grant yet a further exemption.

[39] At the time when the first exemption was being considered in 2012 by Member Gardiner, the current legislative requirements to have regard to the HR Act were not a consideration. She referenced evidence before her from a business and economics consultant indicting that:

(a) The population in the catchment area is growing and the aged (50 and older) population within that group was growing at a far higher rate and that will increase over time;

(b) This more mature population is a disadvantaged group with significantly lower levels of income;

(c) The majority of housing stock elsewhere in the locality is separate houses;

(d) The aged population is growing, producing a growing need for specialist retirement housing;

(e) Suitable accommodation exists elsewhere in Logan City for persons aged under 50 years as well as younger people, who do not prefer the village type of accommodation. These groups of people will not be disadvantaged if an exemption is granted;

(f) The exemption sought will benefit the community and is not in conflict with the intentions of the Act.

[8] The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination, and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.

[9] I am satisfied that it is respectful of the dignity and worth of older persons in our community and to their benefit to provide affordable and appropriate accommodation to this section of our community to the potential exclusion of younger people whose needs are otherwise appropriately catered for in the same area, and I satisfied that there exists an appropriate basis for this exemption.

[41] At the time when the second exemption was being considered in September 2017 by Member Traves, the current legislative requirements to have regard to the HR Act were still not a consideration. She referred to Section 104 of the Act which allows for "special measures" to ensure that persons or groups within the recognised grounds of discrimination are not prejudiced by the view being taken that the positive or special measure is discriminatory. Examples of the application of s 104 are provided in the section. They include restricting special accommodation to women who have been victims of domestic violence or to frail, older people. (Emphasis added)

[42] In considering whether in 2017 to grant an extension of the exemption for a second occasion, Member Traves considered that there is some uncertainty as to whether s 104 would apply, and noted that it was preferable, from the applicant's perspective, to apply for an exemption under s 113.

[28] Greenbank Gardens is also an established facility catering specifically for persons over 50 years. It has been operating on that basis at least since 2012 when the previous exemption was granted. It was suggested by Morrison JA in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd that this was a basis for distinguishing the decision in Re Body Corporate for Village Green (Caloundra) No 1 CTS 2263026 where the facility in question had never been established or operated as a retirement village.

[29] I find that the provision of this facility only for the elderly facilitates the provision of accommodation and services at low cost, and recognises the special needs of elderly people. In all of these manners it performs and constitutes a community benefit: the provision of accommodation and services at relatively low cost for a sector of the community with significantly below average income and with special age related needs.

The present application, the grounds relied upon and the "necessity for an exemption"

[44] One of the points that is made by the QHR Commissioner, to which there is no responsive submission from the Applicant is that the material before me does not include the standard site agreement pursuant to which owners or other residents are required to enter into or explain how the exemption would be applied and enforced in practical effect. That is indeed a deficiency in the material however, it is not necessarily fatal to the application in circumstances where it could otherwise be demonstrated that the exemption ought be granted in principle.

[45] I do not agree that the Applicant needs to explain how it discriminates on the basis of age, in order to establish that its conduct constitutes a prima facie contravention or contraventions of the AD Act.

[46] I accept though that the Applicant needs to establish that there is no other reasonable means of achieving the purpose for which the exemption is sought. It has always been considered relevant to consider whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought.

[47] The QHR Commissioner submits that all the factors pointed to by the Applicant seeks to justify conduct requiring an exemption would indicate that an exemption is not necessary to achieve the purpose of providing affordable accommodation to like-minded people relative to their age. He submits that it is not unlawful to promote the Park as suitable for older people and to target marketing at that demographic.

[48] The QHR Commissioner has submitted that an exemption is not necessary to achieve the purpose of providing affordable accommodation.

[49] Unfortunately, the submissions for the Applicant either in support of the Application, or those which might have responded to those of the QHR Commissioner, but do not so respond, do not focus upon the issues raised in the Commission's opposing submissions and specifically the statutory requirements to establish the basis for the exemption. In large part, the submissions direct themselves to describing why the Village exists and why it is desirable to have it.

[50] The Applicant presumably would contend that if no exemption is granted, despite marketing targeted toward older individuals, the Park is unable to deny younger Applicants on the basis of their age. That is clearly correct unless section 104 of the AD Act applies.

[51] This facility already does provide this affordable housing options for people aged over 50. There is nothing to suggest it will not continue to do so if this exemption is not granted. The so-called necessity to preserve the option presently offered by the Applicant from becoming unaffordable due to price movements in the general housing market is another way of saying that if under 50's can potentially live there, prices will go beyond the reach of persons over 50 and they will cease to be able to live there. To my mind none of that follows. Those who live there now will presumably still do so.

[52] It may be readily accepted that there is a social problem relating to housing affordability in Australia. The objective evidence is that this is an issue not only for persons over 50, but for many others who are much younger. The lack of means, which it seems to be assumed that persons over 50 have, is not demonstrably different to the lack of means that may be found across the community generally. In my view, the claimed connection between the grant of this exemption, and meeting specific social need for affordable housing for persons over 50 is not demonstrated. I accept that the need exists. I do not agree that the grant of this exemption is necessary before that need can be met.

[53] The argument around artificially limiting property prices or values to ensure property is affordable to persons over 50 is, as I describe elsewhere in these reasons, a problematic social experiment in attempting to control values in the property market.

[54] If there is seen to be a need to create subsidised housing opportunities, or to create artificial limits on the prices which persons can obtain for their manufactured homes, that is a matter for the legislature, not this Tribunal.

The effect of not granting or the loss of an exemption

[55] It is relevant to consider the effect of the not re-granting or "loss" of the exemption. The Applicant's consultants rather tentatively suggest what would happen if no exemption was granted is that current residents' expectations would not be met. In that regard it is asserted that "The analysis contained in this letter advice clearly identifies that residents within the catchment are typically of the view that their dwelling is contained within a retirement village, as opposed to a relocatable home park. With this would come the expectation that the facility in which they reside would continue to cater and deliver services targeted towards a senior's cohort".

[56] This Tribunal, exercising an administrative function, does not need to engage in speculation about the existence of such expectations, or the analysis of the appropriateness of such expectations, if they truly exist

[57] In my reasons in Burleigh Town Village, I considered, and still do consider, that the question of whether there ought be a social policy of providing affordable or indeed low-cost accommodation to persons over 50, is a policy consideration to which the Parliament might well direct itself. It might for example legislate, as it has in the context of retirement villages by under the Retirement Village Act, to create an express provision exempting the operation of the AD Act to these villages, such that it is deemed not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residents in a retirement village to older members of the community and retired persons. See Retirement Villages Act 1999 (Qld), section 26. There is no equivalent provision in the Manufactured Homes Act which provides such an exemption. It does not follow that an exemption ought not be granted by this Tribunal pursuant to its powers under s 113 of the AD Act. However, when considering policy considerations, in my view it is not appropriate for this Tribunal to treat a policy consideration which justified the statutory exemption of s 26 of the Retirement Villages Act as justifying the recognition of some broader policy that, in manufactured home villages, there were non-statutory recognition which ensures that low-cost accommodation is available in such villages to old or older members of the community, or those who are of limited means. Those are matters for the legislature. The applicable policy of the legislature is to be found in the AD Act and the HR Act.

[58] As I have mentioned already, the regulatory structure for these Parks is to be found in the Manufactured Homes Act. Under that Act, a homeowner has a statutory right to sell the manufactured home positioned on the site and the park owner has statutory obligations not to hinder the sale by a homeowner, not to hinder the assignment of the seller's interest in a site agreement, and not to unreasonably refuse to consent to an assignment. See s 77, s 56, s 58, s 43 and s 49(3). Having regard to that statutory structure, and the rights established under the Act, there seems to me to be at least the potential for inconsistency between the rights established under that Act, which do not limit, for example the capacity of a homeowner to sell their interest in a site, to any person of any age and a denial of their right to unreasonably refuse to consent to an assignment, for example where that assignment was sought to be made to a person who was 50 years or younger.

[59] In my reasons in Burleigh Town Village, I considered , and still do consider, that whilst it is undoubtedly a matter of social significance that there are individuals who are aged over 50 who are at a disadvantage in terms of obtaining alternative, affordable and long-term housing options, particularly low cost housing options, and there is no question that the motives of this operator are well placed insofar as it seeks to prevent that disadvantage, or provide opportunities to persons over 50 which might not otherwise be available, it does not follow that an exemption should be granted just for the purpose of ensuring that well-placed motive or policy can be achieved.

[60] In Burleigh Town Village Pty Ltd [2017] QCAT 161 Senior Member Stilgoe said that one of the relevant considerations is the community interest and that it is a relevant matter to be considered whether there are expectations by present residents of the park that the residents would continue to be of a certain age; those expectations do not provide an overriding basis for the grant of an extension or renewal or further grant of an exemption. In my decision in Burleigh Town Village Pty Ltd (3) [2022] QCAT 285 I said that were it otherwise, it would have the effect of creating some sort of de facto entitlement or expectation of the grant of further exemptions once one exemption had been as persons might alter their position on the basis of a present exemption and the expectation that it would be further extended when, in fact, there is no legal entitlement for such an exemption, least of all any guarantee that there will not be legislative changes (such as those which were brought into existence on the commencement of the Human Rights Act on 1 January 2020) which might alter the circumstances in which an exemption might be granted.

[61] Member Gordon noted in the Miami Recreational Facilities case that it was relevant to consider the effect of the loss of the exemption. In that matter, she was looking at effects which were both social and on the property interests and expectations of others. There was evidence before her that if an exemption was not granted, undue stress or anxiety would be caused to elderly people, in that case, in a retirement village, which of course has a different statutory regime to that which we have here.

[62] One of the issues Member Gordon considered, which is pertinent also here, is that if the exemption were not granted, it may be that unit values would increase because that would allow the residences to meet the market price in that area, and that that was not an affordable location. If there was no exemption for the housing, its cost would eventually meet the market for residences in this area.

[63] There could be no doubt that in more recent times in this Tribunal there has been considerable emphasis on whether there are other non-discriminatory ways to achieve the restrictions in, for example, residential villages, and that the Tribunal had shifted away from granting exemptions. This includes refusing applications that effectively sought to create de facto village retirement status without the commensurate responsibilities, as recorded in the reasons of Member Gordon in Miami Recreational Facilities case at [44]-[46]. This reasoning ultimately established the proposition that if a non-discriminatory way of achieving the same result emerged, namely of providing age-specific accommodation, although not necessarily limited to providing it only to those individuals emerged, then the Applicant would not be successful in their next application for an exemption.

[64] For the reasons I have already mentioned, I am not satisfied that there is not a non-discriminatory way of providing relatively low-cost residential accommodation for persons over the age of 50, except by granting this exemption.

Application of Human Rights Act

[65] It is clear that the tribunal has obligations under the HR Act in interpreting statutory provisions and in decision making in a way that is compatible with human rights, so far as is possible to do, including with regard to the discretion to grant or renew an exemption from the operation of specified provisions of the AD Act.

[66] The substantive obligation under s 58(1)(a) the HR Act is to act and make decisions in a way that is compatible with human rights, and the procedural obligation in s 58(1)(b) is to give proper consideration to human rights that are relevant to the decision.

[67] The term 'compatible with human rights' is defined in s 8 of the HR Act as follows:

An act, decision or statutory provision is compatible with human rights if the act, decision or provision -

(a) does not limit a human right; or

(b) limits a human right only to the extent that is reasonable and demonstrably justified in accordance with section 13.

[68] Guidance about the meaning of 'giving proper consideration' to a relevant human right is provided for in s 58(5), by stating that it 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. It is clear that the procedural and substantive limbs of s 58 are cumulative, requiring a decision-maker to give proper consideration to human rights and then to make a decision in a way that is compatible with those human rights.

[69] Whether an exemption under s 113 of the AD Act would engage human rights can be seen by reference to the effect of the exemption, if granted; Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 at [310].

[70] In this case, the application is made by the Park owner for its benefit and the benefit of its employees, agents, and officers. And, as I have said, also the owners apparently. The effect of the exemption sought would be to allow the Park owner to discriminate on the basis of age in the areas of accommodation, goods and services, and in the disposition of land.

[71] The Applicant concedes that the Tribunal must act and make decisions in a way compatible with human rights, in that a decision should not limit a human right or limit it only to the extent reasonable and demonstrably justified in accordance with s 13 of the HR Act.

[72] It is not disputed that the tribunal should have regard and proper consideration to human rights and make a decision compatible with those rights.

[73] The Commissioner submits that the relevant exemption is not a proportionate limitation on the right to equality and protection against discrimination.

[74] The Applicant relies on the decision of this Tribunal in Miami Recreational Facilities for the proposition that the nature of the human right affected by an application of the kind made by the Applicant is:

"the right to equal and effective protection against discrimination, in that granting the exemption would affect those persons below 50 in being denied an opportunity to be a resident in the relevant development (the Park in this case).32 In that matter, Member Gordon balanced that limitation against the nature of the purpose of the limitation to provide "a protected environment for senior citizens to create a positive, safe and friendly environment of like-minded individuals at the same stage of life, and to extend the time when they can stay at home". It was also noted that a purpose was to provide more affordable housing to persons aged over 50. In relation to the nature of the purpose of the limitation, Member Gordon stated "[T]here is nothing inconsistent between those purposes and a free and democratic society based on human dignity, equality and freedom".

[75] The Applicant makes no submission that the age limitation is a legitimate and proportionate limitation on the relevant human rights, with particular reference to the nature of the purpose of the limitation and the lack of less restrictive and reasonably available ways to achieve that purpose in accordance with s 13 of the HR Act,

[76] The QHRC'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) Segmenting housing by age is not consistent with an inclusive age-friendly community;

(d) All age groups benefit from intergenerational engagement, whereas working and socialising in age-segregated worlds does not promote a healthy society;

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

(f) Queensland has an existing legislative framework that allows discrimination on the basis of age, under the Retirement Villages Act 1999;

(g) The residential complexes with age restrictions do not necessarily cater for age-related disabilities;

(h) Where accommodation and facilities are accessible, younger people should also be able to benefit;

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

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

[77] In my view, the QHRC's concerns about housing affordability nationally are legitimate, as are some of the others, although many of them have no specific application in this case. There is, by the way, no evidence to suggest that this Park is likely to attract interest from families with children, having regard to the size and nature of the accommodation provided, and the facilities which are tailored to the use of older citizens. The evidence is to the contrary.

[78] I accept that the Application affects the rights to equality and to equal protection of the law without and against discrimination set out in s 15 of the HR Act. They are rights based on Articles 16 and 26 of the International Covenant on Civil and Political Rights.

15 Recognition and equality before the law

• (1) Every person has the right to recognition as a person before the law.
• (2) Every person has the right to enjoy the person's human rights without discrimination.
• (3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
• (4) Every person has the right to equal and effective protection against discrimination.
• (5) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

[80] The purpose of s 15(5) is to promote substantive equality.

[81] If the activity is a special measure within s 15(5), the activity would be compatible with human rights. If it is not a special measure, then the justification test in s 13 of the HR Act is to be applied.

[82] The onus lies with the Applicant to establish that the activity to which the exemption is sought is a measure within s 15(5) or is justified under s 13, and the standard of proof is the balance of probabilities. The Applicant does not submit that it is a measure within s 15(5).

[83] The justification test in s 13 of the HR Act must then be applied.

[84] The Applicant must demonstrate that 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, i.e., by application of the proportionality test. It makes no submission addressing that issue.

[85] The nature of the test was comprehensively described in Lifestyle Communities Ltd (No. 3) (Anti-Discrimination) [2009] VCAT 1869 at from [323] to [334]. At [326] the tribunal said that 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.

[86] In the Lifestyle Communities case, the Tribunal described the right at [389] as:

"The right to equality is the right to substantive equality. It is a right of the first importance. Equality and non-discrimination are the foundations of the rule of law and democratic society".

[87] I accept 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 their age and from the exclusion of them from inexpensive accommodation they otherwise qualify for on the basis of their age. The claimed justifications for this exemption include helping ageing population. I do not consider that excluding people under the age of 50 years from buying in a residential complex of this kind is proportionate and appropriate for achieving that purpose.

[88] Placing an age restriction of 50 years and excluding those of any age below that threshold from ownership and occupation of a residential complex is, in my view, disproportionate to the purpose of providing affordable accommodation suitable for elderly retirees. The limitation and the means sought to be imposed is not proportionate and appropriate for achieving that purpose.

[89] I accept that it would be a desirable outcome if affordable accommodation should be available to all individuals in Queensland, and that persons feel Safe and secure in their homes.

[90] The second "bull + bear" consultants' letter asserts that:

"Manufactured home parks are perceived as a relatively safe and secure residential living option by the senior's population. We would contend that the perceived security and safety benefits offered to seniors at a manufactured home park would be eroded at Greenbank Gardens should the exemption not be granted. Additionally, should the exemption not be granted, there is the risk that the facilities, activities and services offered could shift towards the needs of the general population, representing significant disadvantage to existing residents who purchased at Greenbank Gardens with the expectation that the village would cater to their specific needs".

[91] The second "bull + bear" consultants' letter also asserts that:

"Additionally, the activities typically provided at relocatable home parks are targeted towards the seniors cohort, as opposed to the general population. In the absence of the exemption, the activities delivered could ultimately shift towards the requirements of the general population, as opposed to being senior specific, representing a significant disbenefit to residents who purchased a dwelling at Greenbank Gardens with the expectation that the village would cater to their specific needs."

[92] The issue of security and safety which that report hints at is largely if not entirely irrelevant, and are matter for the operator to address. If it is to imply that the premises will be not secure or there will be threats to the security of residents if people under 50 are allowed in, it is clearly another age-based stereotype. It is impossible to imagine that there aren't already visitors to the Park on a regular basis who are under 50.

[93] As for people and what sort of activities they like to engage in, that assumes that persons over 50 are like-minded. It assumes that persons under 50 are not capable of being like-minded with those who are over 50. These are nothing more than further stereotypical generalisations. I earlier have listed the available facilities in this village. How the "the facilities, activities and services offered could shift towards the needs of the general population" and away from the 50+ cohort is not apparent from the report.

[94] Views may well differ on whether this exemption is reasonably likely to advance or benefit the disadvantaged group for a very long time, after the existing aged residents no longer live there or have been replaced. After all, the existing residents will remain the residents irrespective of whether this exemption is granted.

[95] The purpose of providing an environment that appeals to older people can be achieved through alternate legitimate means such as the provision of facilities which will appeal to that age group and activities, and targeted marketing.

[96] I am not persuaded that the Applicant has demonstrated that the age limitation is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination.

[97] The Commission also argues that the proposed exemption also affects the property rights identified in s 24 of the HR Act. Section 24 provides that all persons have the right to own property alone or in association with others and that a person must not be arbitrarily deprived of the person's property. This language is taken from the Universal Declaration of Human Rights Adopted and proclaimed by General Assembly resolution 217 A(III) of 10 December 1948. In Article 17, there is provided in similar terms to our s 24 HR Act that:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

[98] The meaning of 'arbitrary' includes conduct which is capricious or disproportionate. Informed by international and comparative human rights cases, the meaning encompasses a lack of proportionality or justification and objective unreasonableness. Reference can be made to Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328; 33 VR 139 [63]-[64] concerning the right to privacy. Whilst that decision was overturned on appeal, this reasoning was not the subject of the appeal.

[99] The protection of property in this context is a limited one. As Professor Simon Evans has noted, 'the prohibition on arbitrary deprivation is rather more limited than a guarantee of compensation for all deprivations of property' and the 'extent of protection afforded by the Universal Declaration in relation to private property ownership is vague at best" (see: Simon Evans, 'Should Australian Bills of Rights Protect Property Rights' [2006] AltLawJl 7; (2006) 31 Alternative Law Journal 19.)

[100] Were the exemption sought in this Application granted, it would operate to prevent a person under 50 from owning a home in this manufactured home park, and thus limit their protected right to own property referred to in s 24(1), and limited on a basis which the AD Act has regarded as unlawful discrimination.

[101] In my reasons in Burleigh Town Village, I considered, and still do consider, that potential purchasers of homes in Parks such as this who are under 50 are not of course prevented from purchasing homes in other parks. There is however clear incompatibility between the prohibition on aged-based discrimination, which would include age-based discrimination in the property market, the broad right in s 24(1) of the HR Act and this Applicant's proposal. I am not satisfied that the proposed age limitation is not a legitimate or proportionate limitation on the right to own property.

[102] The question which then arises is whether the language of s 24 HR Act extends to circumstances where the owner of property is prevented from exercising their property rights by selling to a person of their own choosing. Property lawyers are well familiar with statutory and contractual limits being imposed on property owners or those holding interests as a tenant which restrict to whom they can dispose of their interests.

[103] 'Property' is defined in the Acts Interpretation Act 1954 as 'any legal or equitable interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action'. I accept that each of the homes in the Park is the "property" of each owner, and their respective interests in their home include the ownership use, enjoyment, and right to disposal of the property, including to be entitled to the sale price of that asset once disposed of.

[104] The notion that a person must not be arbitrarily deprived of the person's property is not in my view limited to the taking of a person's title to their property. It includes preventing a person from exercising their property rights in a way that is 'practical and effective. In this case I am focussed on the rights of existing residents to sell their property to whomever they choose.

[105] In PJB v Melbourne Health (Patrick's Case) [2011] 39 VR 373; [2011] VSC 327 at [89], Bell J in the Victorian Supreme Court considered the terms 'property' and 'deprivation' should be 'interpreted liberally and beneficially to encompass economic interests and deprivation in a broad sense'. It was held that there is a significant body of authority in the courts in the United Kingdom and Europe on this right and that "jurisprudence assists in relation to what amounts to a deprivation of property in human rights legislation such as the Charter. It is well-established that a formal expropriation is not required (although it does suffice) and a de facto expropriation is sufficient.

[106] Citing earlier authorities, in Zwierzynski v Poland, the European Court of Human Rights gave this statement of principle:

"The Court recalls that in order to establish whether or not there has been a deprivation of possessions it is necessary not only to consider whether there has been a formal taking or expropriation of property, but also to look beyond appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are 'practical and effective', it has to be ascertained whether that situation amounted to a de facto expropriation. I will apply this approach in determining whether there has been a deprivation of property within s 20 of the Charter in the present case."

[107] I refer to the text, the Annotated Victorian Charter of Rights (2nd Ed), published by LBC, in which the authors refer at pages 183 and 184 to identifying the scope of the right of in section 20 of the Victorian Charter of Rights, which refers to persons not being deprived of property other than in accordance with the law. After referring to the decision in PJB which I discuss above, the authors state that the relevant deprivation may include "a substantial restriction on the enjoyment of exclusive possession or a person's ability to dispose of, destroy, or transfer the property or the capacity to derive profits from it." The authors suggest that it may not include a mere diminution in the value of real property and reference the decision of Lough v First Secretary of State [2004] 1WLR 2557.

[108] I accept that the property rights identified in s 24 of the HR Act include the right to own property and not be exposed to substantial restrictions on a person's ability to derive profits from their property. Having said that, I turn now to the question of how s 24 of the HR Act affects the interests of existing owners of homes in this Park or Village.

[109] The QHR Commissioner argues at page 11 of the submission to this Tribunal that an exemption would operate to restrict the rights of owners of homes in a manufactured home park from selling the home to persons of a certain age, and that the right in s 24(2) not be arbitrarily deprived of the person's property is thus limited. This is because their right to dispose of their property is limited, indeed as we shall see, even potentially limited in a way which significantly limits the return that the person might achieve for the property.

[110] The QHRC puts forward no authority which supports the proposition that restricting rights of owners of property from selling to persons of a certain age contravenes a right to not be arbitrarily deprived of the person's property. Indeed, the language of arbitrary deprivation or expropriation is not easily seen to be applicable to this situation which restricts the categories of persons to whom property can be sold. It is hardly an appropriation or an arbitrary deprivation, however taking a broad view of the expression, "arbitrarily deprived", it may be capable of applying to a situation where one is forced to sell property into a market which is arbitrarily reduced by reason of the grant of an exemption.

[111] I have mentioned several times already that the Applicant's consultant "bull + bear" has sought to justify the grant of the exemption being for the purpose of preventing an increase in market value of the homes within the Park, The Applicant does not address the question of whether that amounts to some kind of arbitrary deprivation although as I point out shortly, the exemption would limit the residents' ability to freely dispose of their homes to persons below 50. It makes no submission that this is a legitimate and proportionate limitation on the relevant human right.

[112] The QHRC submits that limiting the ability of homeowners to dispose of their homes is not proportionate to the objective of providing affordable housing in a community environment for older people. I agree with that contention.

[113] The exemption, if granted, would limit the property rights of people, preventing some from owning a home in the Park, and the property rights of people who have homes in the Park. I am not persuaded that these limitations are reasonable and demonstrably justified, in accordance with s 13 of the HR Act.

[114] In my reasons in Burleigh Town Village, I considered, and still do consider, that the policy or social objective that is purported to justify this exemption, namely being one to ensure that these facilities remain affordable, and that their market value is in some way or another artificially restricted or limited because of the limited market to which they can be sold are not limitations which are reasonable and demonstrably justified, in accordance with s 13 of the HR Act. This, I consider, brings into sharp focus precisely how the granting of this exemption would be inconsistent with the property rights in s 24 of the HR Act. Insofar as s 24(2) is capable of having a meaning which includes the right to not be arbitrarily deprived of the true value or benefit of a person's property, the granting of an exemption which would permit this operator to refuse to consent to an assignment of a property to a person who might be prepared to pay the proper market value for it on the basis that that person is of a different age or financial means, and therefore prevent the owner from obtaining the true value of the asset, probably infringes the property right.

[115] I am not satisfied that an exemption which would limit present residents' ability to freely dispose of their homes at a market value which is not artificially diminished, is a legitimate and proportionate limitation on the human right which it affects.

[116] For the reasons I have set out above, I dismiss the application