Equal Opportunity Exemptions and Special Measures under the Charter
Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009) The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable it to conduct women-only swimming sessions and related programmes. Deputy President McKenzie held that the exemption was a special measure for advancing equality and imposed a reasonable limitation on the right of men to non-discrimination and freedom of movement under the Charter. Her reasons are very similar to those that she stated in the matter of YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009).
Facts
Hobsons Bay City Council and Leisure Management Services ('LMS') applied for an exemption from the EO Act to conduct women-only swimming sessions and related programmes at the Bayfit Leisure Centre in North Altona (a facility managed by LMS on behalf of the Council). This case was brought under s 83 of the Act, which authorises VCAT to grant temporary exemptions to facilitate equality of opportunity and the elimination of discrimination.
The evidence before VCAT indicated that the Council had extensively consulted the local community and concluded that cultural constraints caused less women and less people from culturally and linguistically diverse communities to participate in sport and recreation compared to the rest of the community. VCAT was informed that there are 734 Islamic women living in North Altona. During the Council's consultations, swimming was identified as one of the most popular sports, particularly among the Muslim community. However McKenzie DP found that, for cultural and religious reasons, Muslim women and women from some cultures in the community were not able to participate in mixed male/female swimming sessions.
The report and recommendations that followed Council's consultation with the community recommended that Council's recreation programs become more culturally sensitive. In response, the Council and LSM proposed operating a swimming session staffed by women and open only to women on a Friday evening (the ‘proposal’). This would shorten the use of the pool by men by half an hour, but would otherwise take place when the Centre is normally closed.
Decision
Deputy President McKenzie first determined the exemption application according to a pre-Charter interpretation of s 83, and held that the exemption was justified. This is because the benefits that would flow from granting the exemption are consistent with the special measures provision in the Act, which allows the selective provision of special services aimed at reducing the disadvantage to persons with special needs.
The application was then considered in light of the Charter. This disjunctive approach to determining exemption applications follows the previous decisions of Judge Harbison in Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 and McKenzie DP in Victorian Netball Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2651 and YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765.
Deputy President McKenzie accepted that, for the purposes of the proposal, the Council and LMS were public authorities. She also held that VCAT is a public authority when determining exemption applications and must therefore make a human rights compatible determination. In this instance, the proposal was found to impact on the right to equality and the freedom of movement of male users of the Centre. On the other hand, the cultural and religious rights of women who are otherwise unable to use the pool at the Centre were also considered relevant. The exemption would alleviate the indirect discrimination experienced by these women, who for cultural or religious reasons cannot attend 'mixed' swimming facilities. Deputy President McKenzie concluded that this was consistent with the special measures provision at s 8(4) of the Charter, which provides that measures taken to assist groups disadvantaged by discrimination do not constitute discrimination.
In addition to benefiting women who cannot swim in the presence of men for cultural and religious reasons, McKenzie DP considered that women who have been subject to abuse at the hands of men may also feel safer and more comfortable if they can swim without men present. It was accepted that women in the Hobsons Bay area are disproportionately subjected to family violence compared to the average Victorian woman. Deputy President McKenzie found that other women may also prefer swimming where men are not present for reasons of body image.
Deputy President McKenzie also considered the proposal to be a reasonable and proportionate limitation on the rights of men to equality and freedom of movement, particularly given that the proposal would only reduce the pool's normal operating hours by 30 minutes on a Friday evening, when attendance rates are usually lower in any event.
The exemption was granted on condition that the applicants monitor the swimming program's attendance rates and continued necessity, and submit annual reports on these matters to the Victorian Equal Opportunity and Human Rights Commission.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1198.html.
Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre