Waiver for scholarships for women by professional association

Turnaround Management Association Australia Limited (TMA) is an industry body representing people working in the restructuring and turnaround field in Australia. It holds a national conference, provides education and makes submissions on law and policy related to restructuring and turnaround.

The Network of Women program (NOW) conducted by TMA was intended to foster female leadership in the turnaround community. It offered practical incentives to women entering restructuring and turnaround, providing them with opportunities to be connected and engaged in the industry, and to progress to leadership roles in the applicant and the industry.

An industry partner of TMA sponsored it and was to include several scholarships for women to attend national and international conferences.

The exclusion of males, or perhaps even non-gender-specific individuals, or anyone who is not “female” from services provided by TMA, was potentially unlawful sex discrimination under the Anti-Discrimination Act 1991 (Qld) (AD Act) relating to the personal attribute of sex in the prework, work, and the provision of goods and services areas under the AD Act.

TMA applied to the Tribunal for an exemption under sections 105 and 113 of the AD Act from the operation of the provisions of section 7 of the AD Act, which prohibits discrimination based on sex^[1].

The granting of the exemption under s 113 is discretionary, to be determined by reference to the subject matter, scope, and purpose of the statute under which it arises. TMA had to satisfy the Tribunal that the conduct would arguably contravene the AD Act without the exemption, and that there was no other reasonable means of achieving the purpose for which the exemption was sought.

Last year, the NSW Anti-Discrimination Board granted TMA a 5-year exemption on substantially similar grounds to the present application. The Court noted that it would be undesirable if the program were open to the women of New South Wales but not those of Queensland.

The Tribunal granted the exemption after considering the need to act and make decisions in a way that was compatible with human rights. The procedural obligation in s 58(1)(b) of the Human Rights Act 2019 (Qld) (HR Act) is to give proper consideration to human rights relevant to the decision.

The Tribunal was satisfied that TMA had demonstrated that the sex limitation was a legitimate and proportionate limitation on the right to equality and protection without and against discrimination.

The exemption was granted for 5 years.

[1] Re Turnaround Management Association Australia Limited (ACN 107 241 798) [2024] QCAT 153