In addition to specific body corporate legislation and regulations, bodies corporate are bound by other acts. An area that is not regularly considered by bodies corporate is discrimination law.
There are a range of areas where bodies corporate may unknowingly be caught by discrimination (or anti-discrimination legislation) at either the state or federal level.
In Australia, it is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation in certain areas of public life, including education and employment. It should be noted that not all different treatment of persons who are part of a protected category will be discrimination. Anti-discrimination legislation and ancillary laws provide various exclusions to conduct that may otherwise be considered discriminatory. An example for bodies corporate is that various laws make it appropriate to restrict access to pools on the basis of age.
In Queensland, we commonly see complaints being made with respect to bodies corporate and access to common property. Bodies corporate are established to administer the common property on behalf of all lots. Included in the obligation to administer common property is an obligation to ensure its accessibility. If an occupant or invitee of a lot cannot access common property for a prohibited reason it may constitute discrimination.
The difficulty for bodies corporate is that it is difficult to be proactive in this area, often they are not aware of an issue until it is brought to their attention at which stage the discrimination may have already occurred. Bodies corporate must ensure that they maintain facilities and common property access ways in a manner consistent with anti-discrimination legislation. The body corporate should also consider any changes it proposes to make to common property and its ramifications on persons who fall into a protected category.
If a complaint is brought to a body corporate and they consider it may constitute discrimination, the first questions they should consider are;
- What is the complaint?
- Is it the body corporate’s obligation to respond to and remedy the complaint?
- What reasonable steps can be taken to remedy the complaint?
A key consideration in assessing whether there has been a breach of anti-discrimination laws is the ‘reasonableness’ of the request. There are circumstances where changes requested by a complainant are not reasonable. There is no clear test for reasonableness in this area, and the question will turn on considerations such as the body corporate’s capacity to fund requested modifications or the impact (if any) those modifications will have on others.
The difficulty faced by bodies corporate is compounded by the serious costly implications for bodies corporate and complainants in the few cases that have been considered.
Bodies corporate should seek advice in this area, both proactively to understand their obligations and reactively in response to any complaints. Mahoneys can assist bodies corporate to identify potential issues in advance and to respond to formal complaints. Mahoneys has acted for several bodies corporate in discrimination matters and has unique experience in this area.
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