[3] Funding for the services provided by the organisation comes mainly through the Community Legal Services Program which is operated by the Commonwealth and Queensland governments. Women's Legal Service is required to deliver specified core services including free telephone legal advice to women, face to face legal advice appointments, ongoing casework assisting unrepresented women in family law or domestic violence court proceedings, legal advice to women incarcerated at the Brisbane Women's Correctional Centre, outreach work in providing legal advice to women at the Family Relationships Centre at Mount Gravatt and Logan, legal advice to women at the Gold Coast Centre Against Sexual Violence, duty lawyer services for unrepresented women involved in domestic violence cases at Holland Park Magistrates Court, law reform involvement for systemic change of issues impacting on women, community legal education to community organisations with a special focus on access to justice for isolated women in remote communities, social work assessments for women involved in legal proceedings and making referrals for women to external agencies to respond to a personal or legal crisis.

[4] Dr Field submitted that it is a condition of the funding that Women's Legal Service must comply with the provisions of all relevant statutes and the funding can be terminated if there is found to be a breach of the funding conditions.

[5] Women's Legal Service is also funded through the Department of Communities, Child Safety and Disability Services to provide services to people, predominately women, at risk of, or experiencing, domestic and family violence. The funding agreement requires a case management approach to provide specialist counselling or group counselling to affected people. The funding agreement specifically provides that male victims of domestic and family violence will be redirected to a different and appropriate service. Over 90% of the social work casework assistance is provided to women who are victims of domestic and family violence.

[6] Dr Field submitted that while Women's Legal Service is predominately focused on providing advice, support and counselling to women who have been subjected to violence, its workers are also required to undertake other tasks such as training activities or drafting policy documents. Dr Field submitted that activities to provide advice and support directly to women who have experienced domestic and family violence could, on the case law authorities of this tribunal, lawfully be solely provided by women workers without being in breach of the Anti-Discrimination Act 1991. While that may be the case, the same position could not be as easily established for activities such as training, community education, policy writing and law reform advocacy even if these particular services were delivered predominately to women.

[7] Dr Field submitted that Women's Legal Service is governed by its Rules. The Rules state that the objects of the organisation are to provide legal and welfare services to women with special concern for women and children who face discrimination due to poverty, social class, race, age, religion, disability and sexuality, to educate women to participate fully and confidently in legal matters that affect them, to initiate and promote research and evaluation of existing laws and legal processes in areas of particular important to women and to work towards the empowerment of all women within the legal system and within society.

[8] Membership of the organisation is only available to women and to organisations that support the objects of Women's Legal Service. Female delegates from such organisations must be appointed to attend meetings and exercise voting rights.

[9] It was submitted by Dr Field that Women's Legal Service is a community legal centre that works within a feminist framework where there is a philosophy of respecting women's rights to safety and to live free from violence and where the workers understand the dignity and self respect women require to empower themselves to make choices and have control over their lives. Dr Field submitted that it was appropriate for the Women's Legal Service staff to be female in view of its publicly stated philosophy.

[10] Dr Field submitted that women often state that they feel comfortable coming to a women's only service to discuss their legal issues which involve abuse within relationships, relationship breakdown and the sense of shame and judgement sometimes associated with the relationship issues. Dr Field referred to a significant body of research literature which identifies that women are more often the victims of family violence and that intimate partner violence is the most common form of violence in women's lives - much more so than assault or rape by strangers or acquaintances.

[11] Statistics provided by Dr Field reveal that 66% of domestic homicides in Australia are classified as intimate partner homicides and that women represented 73% of victims of intimate partner homicides.

[12] Dr Field was unable to point to any research which could reveal the efficacy of female only lawyers providing legal services to women however she submitted that there is social science data, including one study conducted with the Queensland Police Service, which has found that domestic violence complainants express a strong preference to reporting to women rather than to men.

[13] Women's Legal Service has applied for an exemption under section 113 of the Anti-Discrimination Act to advertise for and to employ only female workers. The exemption application is supported by the Queensland Association for Independent Legal Services (QAILS) which is the peak organisation representing Community Legal Centres operating throughout Queensland. James Farrell, the Director of QAILS, provided written support and informed the tribunal that QAILS regularly referred women for legal assistance in the areas of domestic violence and family law to Women's Legal Service. Mr Farrell stated that a gendered service of this type is an appropriate response to women who have experienced violence from their male partners.

[14] The Anti-Discrimination Commissioner Queensland provided written input into the exemption application and informed the tribunal that his Commission had no objection to an exemption being granted.

[15] In considering this exemption application, QCAT must consider whether an exemption is necessary.[1] Conduct which may appear initially to breach the provisions of the Anti-Discrimination Act may in fact be excused from liability due to the presence of specific exemptions or defences in the Act. If there is a specific exemption, a general exemption under section 113 is not required. In this case, the applicant has recognised that section 25 of the Anti-Discrimination Act may provide some relief as that section permits genuine occupational requirements being imposed in work or work related areas of activities.

[16] It was submitted that the attribute of being a woman could constitute a genuine occupational requirement for many of the services provided by Women's Legal Services in which the workers are required to have direct contact with domestic violence victims. Case law authorities have determined that a position with a "genuine occupational requirement" can be established when that position would not be essentially the same if the requirement were to be absent.[2]

[17] The question is whether the position of a legal advisor or social worker providing advice and support to a woman impacted by domestic violence and who is seeking legal redress or protection through a community legal centre is a position where it is a genuine occupational requirement that a female only provide that service. The question must be considered in the context that the particular community legal centre works within a feminist framework, has a philosophy of respecting women's rights to safety and to live free from violence and where the workers must work to empower women to make choices and have control over their lives.

[18] I am satisfied that the evidence presented by the applicant has established that women who have experienced, or who are at risk of, domestic violence generally feel more comfortable with reporting and then with discussing issues about the abuse they faced in their relationships with other women. It is essential that when providing advice and support for women with domestic violence issues, this community legal service can instil a sense of safety and respect in its clients whose trust in males has been adversely impacted by violence and by controlling behaviour from a male intimate partner or other close male family relative.

[19] That sense of safety is fragile when the domestic violence is recent and is still unresolved in the legal process and when the power imbalance in a relationship has been exploited by a male partner by words and deeds. It would be reasonably predicted in such circumstances that women would not be comfortable with a male legal advisor guiding them through the legal process or providing them with choices for action. I am satisfied that the position of a worker at a community legal service set up to provide legal and other support services to women who have experienced domestic violence gives rise to an inherent occupational requirement that the position is filled only by a female worker.

[20] If the services provided by workers at Women's Legal Service were limited to legal and support services to women who had experienced domestic violence, then the specific exemption in section 25 would be effective and would render unnecessary a general exemption under section 113. However it is clear from the application that services additional to those discussed in the preceding paragraphs are provided by Women's Legal Service.

[21] It is not clear from the application what percentage of the services provided by the organisation do not involve direct provision of advice or support to women involved with domestic and family violence issues. Dr Field described these additional services as being a small number of services. The evidence suggests that the services relate essentially to law reform advocacy, policy development, community education, liaising with community groups about women's issues and providing referrals to other organisations which could provide specific support beyond the scope and resources of Women's Legal Service. Such activities could be carried out by male or female workers as there is no evidence that the position providing those services could only effectively be performed by a female worker.

[22] However Women's Legal Service is not a large employer. The evidence establishes it has a staff of 20 employed workers consisting of a full time equivalency of 12.5 lawyers, social workers and administration staff. It also has up to 100 volunteer workers who provide direct advice and social welfare services to clients of the service. I can reasonably infer from those staff figures that the small employed staff would be required to perform activities across the whole spectrum of the services provided by Women's Legal Service. No employed worker or volunteer worker would be likely to be quarantined for any lengthy period of time in activities that would not involve face to face or telephone contact with women seeking assistance with domestic violence issues.

[23] I am satisfied that the evidence establishes that all workers at Women's Legal Service have regular dealings with women seeking assistance with domestic violence and family related issues, although some of the workers may at times be allocated work that deals with other issues impacting on women. It may be possible to allocate non contact duties to a particular position although that is not how the organisation is currently set up. However given the scope of activities and services provided by Women's Legal Service, a minor increase in non casework services could warrant creation of a position, either permanent or temporary, that either a woman or a man could perform. Such a position would not have, as a genuine occupational requirement, an essential need to be filled by a woman only.

[24] I am satisfied that due to the scope of activities and services provided by Women's Legal Service a specific exemption lawfully allowing the employment of women only may not be readily available under section 25 of the Anti-Discrimination Act. A general exemption from liability must be considered under section 113 of the Act.

[25] Factors relevant to the exercise of discretion when considering an exemption application include whether it would be appropriate and reasonable to grant a general exemption, whether there are any non-discriminatory ways of achieving the purposes for which the exemption is sought and whether there is support for the exemption being granted.[3]

[26] Dr Field has submitted that it is in the community's interest for an organisation that deals with highly complex needs of women involved in domestic and family violence succeeding in its efforts to provide vulnerable women with advice and skills to transfer from violent homes to a more settled lifestyle. She submitted that if workers were to be employed without regard to gender, the services delivered will not be as effective as when they are delivered by women.

[27] That submission relies on the issues already discussed in paragraphs 7 to 12 of these reasons which have identified the rationale for Women's Legal Service existing to provide advice and services by women for women in the areas of domestic and family violence and relationship breakdown. I am persuaded by the submissions of Dr Field outlined in those paragraphs. It is reasonable and appropriate to provide a general exemption from liability to ensure that the services of Women's Legal Service are able to be delivered in the most effective manner. The most effective manner depends on services being delivered by women in an environment where women clients feel supported, understood and safe.

[28] The presence of men working in any meaningful capacity at the organisation would adversely reduce the confidence of women escaping domestic violence and relationship breakdown in accessing the services of Women's Legal Services as a supportive and safe environment for women. The presence of a male worker could trigger adverse emotional responses and could give rise to unnecessary concern in women who have experienced domestic violence perpetrated by the men in their lives.

[29] There is support for a general exemption from the peak organisation representing Community Legal Centres operating throughout Queensland which recognises that a gendered legal service is an appropriate response to women who have experienced violence from their male partners.

[30] Lastly consideration was given to whether there are any non-discriminatory ways of achieving the most effective delivery of services to women clients of Women's Legal Service. In view of the specific purpose of the organisation of women providing advice and assistance to other women, non discriminatory options were not able to be identified.

[31] I am satisfied that a general exemption should be given to Women's Legal Service to advertise for and to employ only female workers at the Service for a period of five years.