Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter
Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009) In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively considered the role of VCAT as a public authority and the operation of s 7(2) (limitations on human rights) and s 8 (right to equality and non-discrimination) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Facts
In 2003, Lifestyle Communities applied to VCAT seeking an exemption allowing it to provide accommodation to people only over the age of 50 years (Lifestyle Communities Pty Ltd (No 1)). This application was dismissed with a right of reapplication. In 2004, Lifestyle Communities reapplied to VCAT seeking the exemption in respect of people aged over 55 years for one of their villages. This application was successful (Lifestyle Communities Pty Ltd (No 2)). The third application, and subject of this order, sought a change in the conditions of the exemptions previously granted with regards to both the age of the residents and the number of villages covered by the exemption.
In October 2008, Lifestyle Communities submitted an application to VCAT seeking an exemption under s 83 of the EOA to enable them to continue to limit the age of residents of their villages. However, unlike earlier applications, this application sought to provide accommodation exclusively to residents over the age of 50 years, lowering the age restriction by five years from their earlier, successful, application. Further, Lifestyle Communities sought to extend the restrictions to all villages (both current and future) run by the parent and subsidiary companies.
Decision
In denying the application for exemption, Bell P undertook an interpretive exercise examining the concept of discrimination and the discretion to grant exemptions under the EOA and the Charter.
Exemptions under the EOA
The EOA prohibits direct and indirect discrimination on the basis of protected attributes, including age, religious belief or activity, sex, race, sexual orientation, impairment and marital status. Section 83 allows the Tribunal to grant, revoke or renew exemptions from any provision in the EOA subject to any conditions the Tribunal thinks fit. There are no explicit criteria in section 83 that VCAT must consider in determining whether or not to exercise its discretion to grant an individual exemption.
The Charter
Bell P held that the exercise of discretion under section 83 of the EOA must be exercised in light of the Charter. Section 38 of the Charter requires that VCAT, acting as a public authority, give proper consideration to human rights and act in accordance with human rights. Section 32 of the Charter imposes the additional obligation that all Victorian legislation, including the EOA, be interpreted consistently with human rights.
Bell P went on to discuss exemptions granted prior to the introduction of the Charter, noting that decisions of this nature must now be made compatibly with Charter provisions, especially s 8 equality rights as per the decision of Judge Harbison in Royal Victorian Bowls Association Inc [2008] VCAT 2415. In that decision Harbison J determined that:
the special interpretative obligation in s 32(1) of the Charter meant that s 83 of the Equal Opportunity Act had to be interpreted compatibly with human rights. This impacted on the scope of the discretion, which must be now also exercised compatibly with human rights.
This decision and others like it are regarded by Bell P as decisions of a general category, such as that considered in Kracke v Mental Health Review Board [2009] VCAT 646, being a category that ‘encompasses decisions made pursuant to a statutory discretion conferred in open-ended terms.’ The analysis then turned to whether the conduct or activity being considered is a special measure under s 8(4) of the Charter or, if not, whether the exemption would satisfy the reasonable limits test in s 7(2).
Equality rights in s 8 of the Charter are limited by the Charter’s definition of discrimination as discrimination within the meaning of the EOA. However, s 8 of the Charter also reflects the equality rights as contained in art 26 of the ICCPR. The right to equality, as with all Charter rights, may be limited in accordance with s 7(2), whereby if the distinction is proportionate, reasonable and objective, then it will not be considered discrimination. Finally, a special measure under s 8(4) will not constitute discrimination for the purposes of s 8(3).
In the present case the exemption sought by Lifestyle Communities would limit the right to equality of everyone aged under 50 years. This would constitute discrimination based on age falling within the definition of discrimination for the purposes of the Charter. Allowing the exemption would exclude everyone under 50 years from admission to an accommodation village based on a stereotype of unsuitability. Countering this, Lifestyle Communities submitted that their application for an exemption was effectively a form of positive discrimination, falling within the special measures provision of s 8(4) of the Charter. It further submitted that, if s 8(4) was inapplicable, any limitation on equality rights was justifiable under s 7(2).
Bell P found that the special measure purpose under s 8(4) was not made out in this case for a number of reasons:
- Although a legitimate commercial purpose, the provision of accommodation services exclusively to people aged over 50 years regardless of their socio-economic disadvantage, accommodation need and present options does not translate to achieving the purpose of substantive equality.
- The evidence provided to the Tribunal was deemed to be inadequate as the application was supported almost entirely on the same information provided for the previous application yet in this application Lifestyle Communities was seeking an exemption covering a larger number of villages and a lowering of the exemption age.
- There was no demonstrated proof of the need for a special measure or of the connection between the need and the means for achieving it.
- The conceptual basis of the application was deemed to be deficient as Lifestyle Communities would have required evidence that at least a majority of people of the age of 50 years are disadvantaged as a result of age discrimination, something which they failed to do.
Turning to s 7(2) Bell P discussed the nature and importance of the purpose of the limitation sought and determined that in the present case that
every Victorian not over 50 years has an equal right to be protected from discrimination. It is a right of first importance. It would be limited if I were to grant the exemption sought.
Although Bell P determined that the purpose of the limitation, ‘to provide safe, secure and quiet accommodation in gated communities to people aged over 50 years’ is an important purpose, it is not determinative. Bell P went on to find that an exemption would not be reasonably proportionate in the present case, stating that ‘it is hard to escape the conclusion that the premise of the admission principle is commercial’, an improper foundation for the limitation of human rights. Excluding everybody under 50 years is a disproportionately harsh rule and no evidence was put forward as to why a less restrictive means was not reasonably feasible.
Substantive Equality
The decision contains a detailed discussion of the content of the Charter’s equality rights, which Bell P described as ‘the keystone in the protective arch of the charter.’ In his discussion Bell P determined that:
The cardinal values protected by the right to equality are substantive equality, the universal humanity, autonomy and worth of the individual and their potential for personal and social development.
Bell P further suggested that:
The right to equality is ‘not just about treating cases alike. Important as it is, that is just formal equality. The true purpose of the human right to equality is substantive equality, which is something much deeper.
He also noted that purely formal equality can produce and entrench substantive inequality.
Australian anti-discrimination law has often been criticised for its failure to recognise that treating everyone the same does not produce real and meaningful equality and the that sometimes affirmative action is needed to compensate for disadvantage caused by discrimination. By recognising the requirements of substantive equality, Bell J’s decision in Lifestyle Communities moves to address this failure and strengthen Victorian anti-discrimination law.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1869.html.
Dahni Houseman works with the Public Interest Law Clearing House. Rachel Ball is a lawyer with the Human Rights Law Resource Centre.