CASE NOTE: Dovedeen Pty Ltd & Anor v GK
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. I FACTS
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. II JUDGMENTS
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...
Bibliography: 1. Articles/Books/Reports
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
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)
Survive Law, Dovedeen Pty Ltd & Anor v GK  QCA 116 (2013)
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