Anti-Discrimination CASE NOTE Essay

INTROThe Anti-Discrimination Act 1991 (Qld) aims to ensure equality among society simply it appears the recent amendment specific all(prenominal)y allows unlikeness.1 This judgement will be assessed on the tail end for the appeal effort, the judgements and the issues and questions which this matter raises.I FACTSGK was a self- diligent provokeual practice role player. GK periodically stayed at the Drovers Rest Motel at Moranbah for the purposes of charge up work. Mrs Hartley, orderor of Dovedeen Pty Ltd and coach 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 admit that the refusal to accommodate her at Drovers rest was non 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 licitly he could non allow people to conduct a business in the mo tel and under the hard drink Act 1992 (Qld). GK complained of direct discrimination on the basis of her fight in licit familiar legal action. A leave for appeal against the salute Tribunals decision has now been applied for by Dovedeen Pty Ltd and Mrs Hartley proceeding on the 19 March 2013.II JUDGMENTSFraser JA bring ups that it was an error of virtue that the attract Tribunal held that the bar in the Anti-Discrimination Act 1991 includes the treatment of a psyche less favourably because he or she carries on lawful intimate employment on particular premises.2 The initial trial concluded that whatever mortal wishing to carry come in such(prenominal) activities as prostitution would be ref apply accommodation and therefrom GK was not treated less favourably than any other who was not a legally 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 alternatively orde r that the conduct of Dovedeen Pty Ltd and Mrs Hartley did in fact violate the Anti-Discrimination Act 1991, suggesting that it was irrational to imply thatthe relevant provision in the act was so limited as to mean that a person is only sheltered if they are treated less favourably where they are not carrying out the performance but have the position, character, or reputation of being a sex worker which is such that contrary 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 among a persons berth of a lawfully employed sex worker and the obligement 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 purpose5III ISSUES ON APPEALThe charge of lawful sexual activity is defined as a persons billet as a lawfull y employed sex worker, whether or not self-employed6 in the enumeration of the Anti-Discrimination Act.7 Between having the status of a sex worker and performing the work of a sex worker, The apostrophize 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 assortedly. at that place appears to be no such indication, coupled with the fact that the attributes outlined in subdivision 7 are fundamental 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 term the whole context and circumstance of the eluding, including the persons actions.8 Hence, activity is a relevant circumstance rather than the attribute it self. 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 persons status as a sex worker that is protected. There are four attributes that involve activity, namely breastfeeding, political activity, trade confederation activity and religious activity.9 The Court compared the definitionof 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 worker10 to include the category of activity the engaging in prostitution on the premises. Thus the Appeal Tribunal erred in this regard.In applying the running game in section 10(1)11 one must identify the characteristics relevant in the comparator. The judicatory applied Purvis,12 and state that circumstances that are the same or not materially different13 include all of the objective features which surround the actual or intended treatment14 of the claimer. It was viewed that the Tribunal identified the defective comparator due to the notion that a person who intends to use a room for purposes of prostitution is not unavoidably a person without the attribute15. Additionally the Appeal Tribunal was also viewed as incorrect in the acknowledgment 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 conduct ed by GK, thereof the circumstances are not the same or materially different16 as requisite 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 triplex sexual encounters.21 Therefore should the comparator be determined by reference to the number of sexual encounters expected to be engaged in?22Section 8 of the Anti-Discrimination Act 1991 includes the definition of discrimination on the basis of an attribute. An argument was made thatlawful sex work conduct is a characteristic of the attri bute 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 persons 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.23There remains the unresolved issue with regards to the interplay between the two Acts the Anti-Discrimination Act 1991 and the hard 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 furtherance is the authentic hall-mark of judicial as distinct from administrative procedure.29 It was noted that despite the majoritys sympathy they would not allow to pass a pseudonym order however the circumstances where thecourt may exercise its power to make such an order were not closed30.V OUTCOME draw 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 cost of proceedings in Court of Appeal and of the appeal to the Appeal Tribunal in the QCAT. Legal reasons for the reason out 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 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 GKs name for her and her five-year-old children.IV IMPACT AND IMPLICATIONSIt is only legal to engage in sex work in licence bro thels, 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 some GK. There was ample support from individuals and also groups such as the support group Respect Queensland to back up GK pay for her legal bills. The decision to allowappeal 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 order that its 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 firs t 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 depose in its precedent value. Following the final hearing of this case, the Anti-Discrimination Act 1991 (Qld) has now been amended to ensure uncloudedness that discrimination on the basis of lawful sexual activity in providing accommodation, complaints will not succeed.VI CONCLUSIONA 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 h as 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.BIBLIOGRAPHY1. Articles/Books/ReportsAnti-Discrimination Commission Queensland, Dovedeen Pty Ltd v GK 2013 QCA 116 (2013) Elise Worthington Qld Court rules prostitution was notdiscriminated against (2013) ABC. Melbourne University Law Review Association, Melbourne Journal of International Law Australian pass 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),2. CasesDovedeen P ty Ltd & Anor v GK 2013 QCA 116 (2013) (17 may 2013) Dovedeen Pty Ltd & Anor v GK2013 QCA 194 (19 July 2013)GK v Dovedeen Pty Ltd and Anor 2011 QCAT 441 (22 March 2011) GK v Dovedeen Pty Ltd and Anor (No 2) 2011 QCAT 445 (15 September 2011) GK v Dovedeen Pty Ltd & Anor (No 3) 2011 QCAT 509 (25 October 2011) GK v Dovedeen Pty Ltd and Anor 2012 QCATA 128 (31 July 2012) Lyons v State of Queensland (No 2) 2013 QCAT 731, ( 1 December, 2013) 3. LegislationAnti-Discrimination Act 1991 (Qld)Liquor Act 1992 (Qld)4. OtherSurvive Law, Dovedeen Pty Ltd & Anor v GK 2013 QCA 116 (2013)