Anti-Discrimination CASE NOTE Essay
Anti-Discrimination CASE NOTE
The Anti-Discrimination Act 1991 (Qld) aims to ensure equality among society yet it appears the recent amendment specifically allows discrimination.1 This judgement will be assessed on the basis for the appeal application, the judgements and the issues and questions which this case raises.
GK was a self-employed sex worker. GK periodically stayed at the Drovers Rest Motel at Moranbah for the purposes of sex work. Mrs Hartley, director of Dovedeen Pty Ltd and manager of the motel, denied GK, the respondent, further accommodation because she was aware GK was performing sex work. Mrs Hartley advised her that she would have to stay somewhere else. GK acknowledged that the refusal to accommodate her at Drovers rest was not because of who she was but because of what she was doing.
Mr Hartley, also director of Dovedeen Pty Ltd, gave evidence that his understanding was that legally he could not allow people to conduct a business in the motel and under the Liquor Act 1992 (Qld). GK complained of direct discrimination on the basis of her engagement in ‘lawful sexual activity’. A leave for appeal against the Appeal Tribunal’s decision has now been applied for by Dovedeen Pty Ltd and Mrs Hartley proceeding on the 19 March 2013.
Fraser JA states that it was an error of law that the Appeal Tribunal held that the prohibition in the Anti-Discrimination Act 1991 includes ‘the treatment of a person less favourably because he or she carries on lawful sexual activity on … particular premises.’2 The initial trial concluded that any person wishing to carry out such activities as prostitution would be refused accommodation and therefore GK was not treated less favourably than any other who was not a lawfully employed sex worker seeking a room for the same purposes.3 For this reason GK was not the subject of direct discrimination. Upon an internal appeal it was rather found that the conduct of Dovedeen Pty Ltd and Mrs Hartley did in fact violate the Anti-Discrimination Act 1991, suggesting that it was incorrect to imply that the relevant provision in the act was so limited as to mean that a person is only protected if they are treated less favourably where they are not carrying out the activity but have the status, character, or reputation of being a sex worker which is such that different treatment of that person is justified.4 The notice of the new Appeal includes six grounds of appeal of which two were found to challenging findings of fact: i) ‘The Tribunal erred in finding that there was no distinction between a person’s status of a lawfully employed sex worker and the engagement of sex work by that sex worker. ii) The Tribunal erred in finding the appropriate comparator was a person who was seeking to use the motel for any lawful purpose’5
III ISSUES ON APPEAL
The attribute of ‘lawful sexual activity’ is defined as ‘a person’s status as a lawfully employed sex worker, whether or not self-employed’6 in the Schedule of the Anti-Discrimination Act.7 Between having the status of a sex worker and performing the work of a sex worker, The Court noted, there is a distinction and established that it is the status that is protected in the relevant Act. This definition of status within the Anti-Discrimination Act is deemed applicable except in circumstances where the context would indicate differently. There appears to be no such indication, coupled with the fact that the attributes outlined in Section 7 are central to the operation of the Act. Section 28 is the only other place in the Act where ‘lawful sexual activity’ is used, and refers to an exemption which permits discrimination in work with minors where it is reasonably necessary to take into consideration the whole context and circumstance of the case, including the person’s actions.8 Hence, activity is a relevant circumstance rather than the attribute itself. Without the definition being included within the Act, the Act could be interpreted as prohibiting discrimination in the provision of accommodation as a result of the person being engaged in lawful sexual activity on the premises. The inclusion on the Act of the definition prevents such an interpretation, due to the fact that it is only a person’s status as a sex worker that is protected. There are four attributes that involve ‘activity’, namely ‘breastfeeding’, ‘political activity’, ‘trade union activity’ and ‘religious activity’.9 The Court compared the definition of ‘lawful sexual activity’ with these four, and found that only religious activity is defined in the Act. Such a definition implies that religious activity has categories of activity or non-activity, whereas lawful sexual activity has no such definition and is defined only in the form of ‘status’. Hence, it may be concluded that the attribute cannot be extended beyond ‘status as a lawfully employed sex worker’10 to include the category of activity – the engaging in prostitution on the premises. Thus the Appeal Tribunal erred in this regard.
In applying the test in section 10(1)11 one must identify the characteristics relevant in the comparator. The court applied Purvis,12 and state that ‘circumstances that are the same or not materially different’13 include ‘all of the objective features which surround the actual or intended treatment’14 of the claimer. It was viewed that the Tribunal identified the incorrect comparator due to the notion that a person who intends to use a room for purposes of prostitution is not necessarily a person without the attribute15. Additionally the Appeal Tribunal was also viewed as incorrect in the identification of a comparator as an individual who was seeking accommodation for the use of any lawful purpose excluding lawful sexual activity or prostitution. This is due to the disregard that description includes of the activities which were intended to be conducted by GK, therefore the circumstances are not ‘the same or materially different’16 as required in section 10(1)17. The most suitable comparator when applying section 10(1)18 was an individual who was not a lawful sex worker but wanted accommodation for the purpose of conducting a series of separate sexual encounters with different others at various times.19 At this point one must consider then if a sex worker who is less busy or successful would be in a conceptually different position to either the decided comparator or to the Complainant. 20It was the occurrence of prostitution in the motel that was the object of refusal rather than the multiple sexual encounters.21 Therefore should the comparator be determined by ‘reference to the number of sexual encounters expected to be engaged in?’22
Section 8 of the Anti-Discrimination Act 1991 includes the definition of discrimination on the basis of an attribute. An argument was made that lawful sex work conduct is a characteristic of the attribute in consideration; ‘lawful sexual activity’. This was rejected by the Court and argued that The work done by a person in any remunerative occupation is not properly described as a ‘characteristic’ or typical ‘feature or quality’ of the person’s status as a worker in that occupation; it is simply the activity done by the person to earn remuneration. Section 8 does not extend the reach of the Act in the way for which GK contended.23
There remains the unresolved issue with regards to the interplay between the two Acts – the Anti-Discrimination Act 1991 and the Liquor Act 1992. The appeal did not consider this aspect, and both the tribunal in the first instance and the Appeal Tribunal concluded differently. Section 152 of the Liquor Act24 prohibits a business being conducted on licensed premises, other than that authorised specifically by the licence. On the other hand, Sections 82 and 83 of the Anti-Discrimination Act25 prohibits discrimination in the accommodation and pre-accommodation areas of a premise. The tribunal in the first instance identified this as an inconsistency, and referring to the Attril v State of Queensland, upheld the more recent Act (the Liquor Act) in regards to this inconsistency. However, this finding has been overturned by both the Tribunal and the Court of Appeal. The distinction between ‘a business’ and the conduct of ‘a business activity’ was raised, thereby establishing that Section 152 of the Liquor Act 1992 26was not inconsistent with any section of the Anti-Discrimination Act 1991 which pertains to the providing of accommodation to a person who may then engage in lawful sexual activity in that place27.
Under the QCAT Act, the Tribunal made orders to protect the privacy of GK by use of initials. Orders of this nature do not apply to the proceedings in The Court of Appeal where they have been made by the Tribunal. The Court of Appeal does have power to make these orders however an application must be made. It was assessed in reference to Russell v Russell 28that the nature of the courts and their proceedings are transparent referencing that ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure.’29 It was noted that despite the majority’s sympathy they would not allow to pass a pseudonym order however the circumstances where the court may exercise its power to make such an order were not closed30.
Leave to appeal granted, appeal allowed and decisions and orders made by the Appeal Tribunal of QCAT to be set aside. The appeal to the Appeal Tribunal against the decision of QCAT made on 25 Oct. 2011 should be dismissed. Finally, parties are allowed to make submissions as to the costs of proceedings in Court of Appeal and of the appeal to the Appeal Tribunal in the QCAT. Legal reasons for the concluding decisions are that that there were errors in the previous trial which were established The Tribunal identified inconsistency in Section 152 of Liquor Act 31and section 82 and 83 of the Anti-Discrimination Act32 which was overturned with the conclusion that there was no inconsistency. There was error found in the conclusions made in reference to the attribute of ‘lawful sexual activity’ with the establishment that the attribute, in fact, cannot be extended beyond status as a lawfully employed sex worker to include the category of activity. Additionally it was found that the comparator disregard the description used includes of the activities which were intended for the room hired. These facts can be noted as the ratio decidendi. A noteworthy obiter dictum includes the consideration of orders protecting the privacy of GK. Extensive discussion occurred in relation to this issue considering fundamental reasons why courts are designed to be transparent and public and weighing those factors with the implications of publishing of GK’s name for her and her young children.
IV IMPACT AND IMPLICATIONS
It is only legal to engage in sex work in Licensed brothels, which are often unsafe and harmful places, or on your own where accommodation services not only protected your privacy but constitutes a safe environment.33 This case was one that brought lawful sex workers from across the state together to rally for their rights as it is clear this case was not just about GK. There was ample support from individuals and also groups such as the support group Respect Queensland to help GK pay for her legal bills. The decision to allow appeal and, upon a loss to GK, many in the industry will be affected.34 Furthermore it affects not only those in the industry but the Queensland society and law; ‘It would seem that potentially the decision… or the changes have quite alarmingly entrenched this idea in legislation that it’s okay to discriminate against a particular type of lawful sexual activity.’35 There are now fears that this may push sex workers onto streets in order to earn their livelihood.
This case sets an important legal precedent. It is the first time Queensland has specified this issue. Before the complaint to the Commissioner, the accommodation industry either looked past the fact individuals were using their rooms for sex work or would make payments for prostitutes to stay away.36 It was found that there were many other cases of similarity waiting for the verdict of this case in order to rely in its precedent value. Following the final hearing of this case, the Anti-Discrimination Act 1991 (Qld) has now been amended to ensure clarity that discrimination on the basis of lawful sexual activity in providing accommodation, complaints will not succeed.
A summary analysis would seem to reveal the importance of assessing the intersections between relevant Acts (such as the Liquor Act and the Anti-Discrimination Act) and the contextual interpretation of such concepts as ‘status’ and ‘lawful activity’. The legislation also brings a community and democratic and political dimension to bear. It is clear this case has many implications for the Queensland society. A precedent such as this ‘suggests that anti-discrimination laws have a really long way to go to protect people who are engaging in lawful sexual activity’.37 This case highlights the difficulty in some areas distinguishing between the person and their occupation and the requirements for undertaking their occupation.
Anti-Discrimination Commission Queensland, Dovedeen Pty Ltd v GK  QCA 116 (2013) Elise Worthington ‘Qld Court rules prostitution was not
discriminated against’ (2013) ABC. Melbourne University Law Review Association, Melbourne Journal of International Law; Australian Guide to Legal Citation, 3rd Ed. (2010) Richard Krever, Writig a Case Note, Mastering law studies and law exam techniques, Butterworths, %th ed (2001) pp. 13-22 Richard Krever, amended by Micheal Quinlan, Guide to Reading a case and to preparing a case not (2014) Survive Law, How to write a case note (2010),
Dovedeen Pty Ltd & Anor v GK  QCA 116 (2013) (17 may 2013) Dovedeen Pty Ltd & Anor v GK QCA 194 (19 July 2013)
GK v Dovedeen Pty Ltd and Anor  QCAT 441 (22 March 2011) GK v Dovedeen Pty Ltd and Anor (No 2)  QCAT 445 (15 September 2011) GK v Dovedeen Pty Ltd & Anor (No 3)  QCAT 509 (25 October 2011) GK v Dovedeen Pty Ltd and Anor  QCATA 128 (31 July 2012) Lyons v State of Queensland (No 2)  QCAT 731, ( 1 December, 2013) 3. Legislation
Anti-Discrimination Act 1991 (Qld)
Liquor Act 1992 (Qld)
Survive Law, Dovedeen Pty Ltd & Anor v GK  QCA 116 (2013)