Age discrimination is ok, says NCAT


Over 55sAge restrictions in land lease communities is an issue that has been a hotly disputed for many years. Home owners sit on both sides of the fence with some deliberately selecting communities with age restrictions and others supporting a completely open market. Surprisingly there are very few reported Tribunal decisions about age restrictions and we are only aware of one case being determined by the Anti Discrimination Board. However, there has been a development with a decision made by NCAT in June 2016.

This case involves a land lease community on the Central Coast – Broadlands Village. Broadlands was an open age land lease community but with the change of law on 1 November 2015 the operator decided to introduce new community rules and one of them was: ‘The age restriction for the community is that persons must be at least 50 years of age to occupy a residential site. A home owner must not allow a person to occupy a residential site unless that person meets this age restriction’.

A long term Broadlands home owner was unhappy about the new rule and made an application to NCAT on the grounds that it was invalid. The applicant claimed that the rule was not ‘fair and reasonable’ as required by the Residential (Land Lease) Communities Act 2013 (the Act) and that it was inconsistent with the NSW Anti-Discrimination Act 1977 (NSW ADA) and the Commonwealth Age Discrimination Act 2004 (Cth ADA).

Both the NSW ADA and Cth ADA make it unlawful to discriminate against another person regarding the provision of accommodation, services or facilities on the basis of age. In defending the rule one of the points argued by the operator was that Broadlands does not provide accommodation, services or facilities. The operator lost on this point with NCAT finding that sites are accommodation and the operator provides services and facilities in the nature of internet, telephone connection, electricity, pool, community hall and garbage disposal pick up.

Another point argued by the operator, and one that was critical to the decision is that the Act expressly contemplates that community rules can contain age restrictions. This appears in section 44 (regarding additional occupants), and it says that it is not unreasonable for an operator to withhold consent to an additional occupant on the ground that the person does not meet age restrictions set out in the community rules that were in force when the home owner entered into the site agreement.

So, on the face of it the Act conflicts with anti-discrimination law because one says you can have rules about age and the other says you can’t discriminate on the basis of age. NCAT resolved this conflict by using exemptions in the Anti Discrimination Acts that permit exceptions for ‘instruments’ made under a State Act. NCAT found that “the Age Restriction Rule is not inconsistent with the NSW ADA or Cth ADA because each of those Acts permits conduct that would otherwise be discriminatory if it is done to comply with a community rule made under Part 8 of the Act.”

If the logic of this decision is followed the door is open for further restrictions in land lease communities, for example based on gender, race or disability. This may sound extreme and people will say that it will never happen but if community rules are instruments under a State Act and therefore exempted from anti discrimination legislation, it could. Operators could introduce rules that prohibit the occupation of sites by women or people with a disability and so on. We wonder, would NCAT have made the same decision had the application been about race rather than age?


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