Court of Appeal rules sex worker not discriminated against by motel operator

On 28 August 2012, Dovedeen Pty Ltd, trading as the Drovers Rest Motel at Moranbah, and Mrs Joan Hartley, a director of Dovedeen and a manager of the motel, filed an appeal in the Court of Appeal in respect of the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (GK v Dovedeen Pty Ltd & Anor [2012] QCATA 128), which found that they had contravened the Anti-Discrimination Act 1991 (the AD Act) and discriminated against GK, a self-employed sex worker. The Attorney-General for the State of Queensland was granted leave to appear in the appeal proceedings as amicus curiae (friend of the court).

On 17 May 2013, Justices Fraser, Gotterson and Wilson of the Court of Appeal delivered their judgment (Dovedeen Pty Ltd & Anor v GK [2013] QCA 116), the effect of which was to restore the original decision made by the Queensland Civil and Administrative Tribunal (QCAT) on 25 October 2011 (GK v Dovedeen Pty Ltd & Anor (No. 3) [2011] QCAT 509) that GK had not been the subject of discrimination.

Solicitor-General Walter Sofronoff and Joshua Jones of Counsel were briefed to appear in the Court of Appeal on behalf of the Attorney-General, instructed by Senior Principal Lawyer Jody Cosgrove.

Background

In July 2010, GK complained to the Anti-Discrimination Commission that Dovedeen Pty Ltd and Mrs Hartley directly discriminated against her under the AD Act in relation to the supply of accommodation at the Drover’s Rest Hotel at Moranbah, after she was asked to find accommodation elsewhere and advised that future bookings would not be taken from her because of her occupation as a sex worker.

The complaint was referred to QCAT. On 25 October 2011, the Tribunal member rejected GK’s complaint on the ground that GK was not refused accommodation because of her occupation as a sex worker, but because Dovedeen and Mrs Hartley did not want prostitution undertaken in their motel.

GK pursued an internal appeal against the decision to the Appeal Tribunal of QCAT. On 31 July 2012, the appeal was upheld. Dovedeen and Mrs Hartley then applied for leave to appeal to the Court of Appeal against the Appeal Tribunal’s decision.

Two grounds of appeal were considered by the Court:

1. That the Appeal Tribunal erred in finding that there was no distinction between a person’s status as a lawfully employed sex worker and the engagement in sex work by that sex worker
2. That the Appeal Tribunal erred in finding that the appropriate comparator (for the purpose of s 10 of the AD Act) was a person who was seeking to use the motel for any lawful purpose.

At the Court of Appeal hearing, GK also sought a non-publication order.

Summary of reasons

The Court of Appeal held that the Appeal Tribunal erred in law for a number of reasons.

Firstly, the Court of Appeal found that discrimination on the basis that GK was a lawfully employed sex worker was prohibited, but that discrimination on the basis that she proposed to perform work as a sex worker at the motel was not prohibited.

The Court of Appeal found that, contrary to the Appeal Tribunal’s conclusion, the relevant prohibition did not comprehend “the treatment of a person less favourably because he or she carries on lawful sexual activity on particular premises” [at 20]. Further, the definition of “lawful sexual activity” in the AD Act makes it clear that the relevant prohibited basis of discrimination is only a person’s status as a lawfully employed sex worker [at 22].

Secondly, the Court of Appeal held that the reasoning of the Appeal Tribunal, which had relied on the “philosophy of the AD Act” and the legislative history of the relevant provisions in the Act, was not persuasive [at 24] and did not assist [at 25]. The Court of Appeal also held that the Appeal Tribunal’s consideration of Queensland legislation regarding prostitution could not justify disregard of the definition of “lawful sexual activity” in the AD Act [at 26].

In relation to the relevant test to determine whether direct discrimination had occurred, the Court of Appeal accepted the Solicitor-General’s submission that the most appropriate comparator in the application of s 10(1) was a person who was not an employed sex worker, who sought accommodation with a view to a series of separate sexual encounters with different people coming to and going from the person’s motel room.

Accordingly, the Court of Appeal held that there was no basis in the evidence for finding that Dovedeen and Mrs Hartley “would have provided accommodation to a person in those or similar circumstances or that they would have charged an amount for accommodation which differed from the amount that GK was charged”.

Further, GK filed a notice of contention under which it was submitted that the effect of s. 8 of the AD Act was that the attribute of “lawful sexual activity” extended beyond the definition of that term to include the “characteristic” of “engaging in sex work lawfully” or “the performance of lawful sex work”. The Court of Appeal held that s 8 of the AD Act does not extend the reach of the Act in the way GK contended.

In relation to the application by GK for a non-publication order, Justice Fraser cited a decision of J v L & A Services Pty Ltd & Ors [1993] QCA 12 which extensively discussed the relevant authorities and principles on the point. Justices Fraser and Gotterson were persuaded that it would not be appropriate to require an amendment to the title of the proceedings to substitute the sex worker’s name for the initials by which she had been identified to date. Justice Wilson dissented on this point.

The Court of Appeal also noted that since the events at the Moranbah motel, the AD Act had been amended to make it clear that a complaint of discrimination on the basis of lawful sexual activity in the provision of accommodation could not succeed in similar circumstances.

The timeframe for a special leave application to the High Court has now expired.

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