Right to Equality and Exemptions under the Equal Opportunity Act

YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009) This case explores the relationship between human rights and equal opportunity legislation.  It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act 1995 to enable it to conduct women-only swimming sessions and related programmes.  This exemption was held to conform with the rights to equality and non-discrimination set out in the Charter.

Facts

The applicant, the YMCA, applied for an exemption from the Equal Opportunity Act 1995 (Vic) ('the Act') to allow it to conduct women-only swimming sessions and related programmes at the Ascot Vale Leisure Centre (a facility managed by the applicant on behalf of the local Council).  This case was brought under s 83 of the Act, which authorises the Victorian Civil and Administrative Appeals Tribunal to grant temporary exemptions to facilitate equality of opportunity and the elimination of discrimination.  In deciding this issue, VCAT was required to consider the relationship between the Act and the rights to equality and non-discrimination enshrined in s 8 of the Charter.

The evidence before VCAT indicated that both the YMCA and the Ascot Vale community had identified the need for women-only swimming sessions.  VCAT was informed that women make up about half of the Ascot Vale population.  More than 25 per cent of these women were born overseas and a significant proportion of them are Muslim.  The applicants explained to VCAT that, due to their cultural and religious values and beliefs, Muslim women in the community were not able to participate in mixed male/female swimming sessions.  These women were therefore unable to attend the Centre during public opening hours.  VCAT was told that the only way to provide accessible opportunities for these women to swim and learn to swim was to provide women-only sessions at the Centre.  The proposed sessions were to operate outside of normal opening hours and would be staffed only by women during these times.

Decision

Equal opportunity law

Deputy President Cate McKenzie first considered whether the proposed exemption was allowable under the Act.  She pointed out that the Act does not expressly limit the discretion given to VCAT to grant or refuse exemptions.  The Deputy President indicated that the proper approach was to consider whether the proposed exemption invoked a ground of prohibited discrimination under the Act.  In this case, the proposal involved a possible form of prohibited discrimination against men.  It was therefore necessary to weigh the interests served by the proposed exemption against the interests served by the prohibitions under the Act.  Deputy President McKenzie pointed out that this assessment should have reference to the broader objectives of the Act.  These objectives included promoting acceptance and recognition of every person's right to equality of opportunity, and limiting prohibited discrimination as far as possible.

In this case, the purpose of the proposed exemption was to give Muslim women the same opportunities that were currently available to men and women who did not hold these beliefs and were therefore able to access the Centre during public opening hours.  In this sense, the exemption was designed to promote equality of opportunity for a particular group of women.  The aim of the proposed exemption could not be achieved in a less restrictive way and was designed so as not to interfere with the public operation of the Centre.  Therefore the proposed exemption was compatible with the terms of the Act.  The next issue to consider was whether the proposal was in harmony with the rights and principles proscribed by the Charter.

Charter rights to equality and non-discrimination

Deputy President McKenzie confirmed that s 32 of the Charter requires all statutory provisions to be interpreted in a way that is compatible with human rights, so far as this is possible.  Therefore the discretion given by s 83 of the EO Act must be interpreted and exercised by VCAT in a way that is compatible with the Charter.

The Deputy President went on to consider which Charter rights were possibly engaged in this case.  In her view, the relevant rights included: non-discrimination; equality before the law; protection of the law without discrimination; and equal and effective protection against discrimination (ss 8(1)-(3)).

The next question was whether the granting of the exemption in this case represented a reasonable limit on the Charter rights under s 7.  The Deputy President confirmed that the proposed exemption did represent such a reasonable limit.  She said that the aim of the proposed exemption was to redress a disadvantage currently suffered by a certain group of women due to their religious or cultural beliefs.  Deputy President McKenzie pointed out that this disadvantage was not suffered by people without those religious or cultural beliefs.  She said that the activities at the Centre would provide women with the opportunity for recreation, enable the women to engage with broader community services, and build social connections between different sectors of the community.  In light of these considerations, the proposed exemption was compatible with the Charter rights to equality and non-discrimination.

VCAT granted the applicant an exemption for a period of three years.  Deputy President McKenzie held that the exemption was designed to combat discrimination and promote social inclusion for women in the Ascot Vale community.  The exemption was therefore deemed to be a measure that was allowable under the EO Act and which was in harmony with the rights proscribed by the Charter.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/765.html.

Magdalena McGuire is a volunteer with the Human Rights Law Resource Centre