Balancing the Act: ADCQ newsletter -
QCAT exemption not always necessary
This article first appeared in Balancing the Act, Issue 32, Winter 2012, page 5.
Recent decisions of QCAT demonstrate that it is not always necessary to apply to the tribunal for an exemption. The Anti-Discrimination Act 1991 provides for a range of exemptions that recognise discrimination can be acceptable in certain circumstances. A helpful example is one of the recent decisions.
The Women's Community Aid Association (WCAA) applied to QCAT (the tribunal) for an exemption to allow it to recruit only female workers and volunteers, and provide services exclusively for women and children who have experienced domestic or sexual violence.
WCAA operates the Brisbane Rape and Incest Survivors Support Centre and Women's House Shelta, providing services to women and children who have experienced violence from men.
In addition to a range of specified exemptions, The Anti-Discrimination Act 1991 includes a mechanism for applying to the tribunal for an exemption. The tribunal can grant an exemption for a period of up to 5 years, and can grant extensions of those exemptions. The tribunal is required to provide a copy of the application to the Anti-Discrimination Commissioner, and to have regard to any submissions that the Commissioner may make. In this case the Commission informed the tribunal that it had no objection to the proposed exemption, and referred the tribunal to decision of the former Anti-Discrimination Tribunal, where that tribunal had granted a similar exemption for an organisation to provide counselling, accommodation and incidental services to young disadvantaged women.
In the work area, the Act allows for the imposition of a genuine occupational requirement. In considering this issue, the tribunal observed:
- In Qantas Airways v Christie, Justice Gaudron of the High Court explained that determining if a requirement is an inherent requirement must involve consideration as to whether a position would be essentially the same in the absence of the requirement;
- In such a case the question is not whether the services of a male counsellor or support worker providing services to women who had experienced sexual or domestic violence from men are essentially the same as the same type of services provided by a female counsellor or support worker.
- The appropriate question is whether the effect on the recipient of those services would vary depending on the sex of the worker, and whether the presence of a male worker would trigger adverse emotional responses and prevent the development of empathy, comfort and trust that is sought to be engendered by counselling and support services in times of emotional fragility.
The tribunal was satisfied that it is a genuine occupational requirement for workers and volunteers at WCAA to be women, and concluded that the exemption in section 25 of the Act would be available to WCAA as a defence to complaints of sex discrimination in the work area.
The tribunal found that a service providing support and counselling by either sex, is quite different from a service providing support and counselling solely by women, where the recipients of the services are women who have experienced gender based violence.
In the services area, the tribunal considered the specific exemption in the Act that allows welfare measures to benefit members of a group with an attribute, if it is not inconsistent with the Act.
The tribunal found that providing counselling, support services and a safe environment for women who have experienced violence from men is not inconsistent with the Act. In fact one of the examples in the Act as to how the welfare measures exemption can be applied is 'to restrict special accommodation to women who have been victims of domestic violence or to frail, older people'.
The tribunal concluded that it was not necessary for the tribunal to grant an exemption because a valid defence and specific exemption applies for the staffing and provision of services in this case.
Exemption Application re: ZigZag Young Women's Resource Centre Inc.  QADT 41
(1988) HCA 18,