Discrimination & ‘lawful sexual activity’

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116


JUDGES: Fraser and Gotterson JJA and Margaret Wilson J

Separate reasons for judgment of each member of the Court, Fraser and Gotterson JJA concurring as to the orders made, Margaret Wilson J dissenting in part

ORDERS: 1.     Grant leave to appeal

2.     Allow the appeal.

3.     Set aside the decision and orders made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal on 31 July 2012.

4.     In lieu thereof, order that the appeal to the Appeal Tribunal against the decision of the Queensland Civil and Administrative Tribunal made on 25 October 2011 be dismissed.

5.     Leave to the parties to make submissions in accordance with paragraph 52 of Practice Direction No 2 of 2010 as to the costs of the proceedings in the Court of Appeal and of the appeal to the Appeal Tribunal in the Queensland Civil and Administrative Tribunal

CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION  DUE TO STATUS – where the first applicant trades as a motel, and the second applicant is a director and manager of that motel – where the respondent was a self-employed sex worker who stayed at the motel for the purposes of prostitution – where the second applicant refused the respondent accommodation in the future – where the respondent accepted that she had been refused accommodation because she was performing the work of a sex worker at the motel – where s 7(l) of the Anti-Discrimination Act 1991 (‗the Act‘) prohibits discrimination on the basis of the attribute of ‗lawful sexual activity‘ – where Schedule 2 of the Act defines ‗lawful sexual activity‘ as ‗a person‘s status as a lawfully employed sex worker, whether or not self-employed‘ – where the Appeal Tribunal found, and the respondent contended, that the definition of ‗lawful sexual activity‘ should be read to include the carrying on of such activity at the time the conduct occurred – whether the Appeal Tribunal correctly applied the definition ‗lawful sexual activity‘ – whether the respondent suffered discrimination because of her ‗status as a lawfully employed sex-worker‘

HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – where the respondent complained of direct discrimination on the basis of her attribute of ‗lawful sexual activity‘ within the meaning of s 10(1) of the Act – where the respondent contended that the discrimination occurred in the  pre-accommodation  area  as  prescribed  in ss 82 and 83 of the Act – where the Tribunal member found the appropriate comparator was a person without the attribute of a ‗lawful sex worker‘ but who was seeking accommodation for the purpose of prostitution – where the Appeal Tribunal concluded that the appropriate comparator was a person seeking accommodation for any lawful purpose, but not for prostitution or lawful sexual activity – whether the Appeal Tribunal erred in applying s 10(1) of the Act

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND  PROCEDURE – QUEENSLAND – POWERS  OF COURT – OTHER MATTERS – where the Tribunal made a non-publication order which required the respondent to be identified only by initials in the Tribunal proceedings – where the Application for Leave to Appeal and the Notice of Appeal filed in the Court of Appeal adopted the form of title used in the Tribunal to identify the respondent – where the respondent sought a non-publication order in the Court of Appeal – whether a non-publication order should be granted


David Cormack – Brisbane Barrister

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