Victorian Civil and Administrative Tribunal|2006-10-30|Before: Mr J

Australian Grand Prix Corporation (Anti Discrimination) [2006] VCAT 2193 (30 October 2006)

Anti-discrimination - exemption -special ticketing arrangements to encourage women to attend the 'Traction facility' at the Formula One Australian Grand Prix- relevant considerations - Equal Opportunity Act 1995 s83

Australian Grand Prix Corporation (Anti Discrimination) [2006] VCAT 2193

The Victorian Civil and Administrative Tribunal has considered an application pursuant to section 83 of the Equal Opportunity Act 1995 by Australian Grand Prix Corporation (the applicant) for exemption from sections 42, 98, 100 and 195 of that Act. The application for exemption is to enable the applicant to engage in the specified conduct.

In this exemption, "specified conduct" means any of the following:

• To issue, for use by women only, at discounted prices, admission tickets to the "Traction facility". Such tickets may be for an individual or for a group, and discounts may vary according to whether the ticket is for an individual or a group or according to the size of the group;

• To refuse entry to the Traction facility to a man who seeks entry by using one of the above discounted tickets;

• To offer for sale for use by women, before they offered for sale to men, tickets (including discounted tickets) to the Traction facility;

• To ask potential or actual purchasers of tickets to the Traction facility whether those tickets are to be used by men or women;

• To advertise in relation to the above matters, in any form, whether electronic or otherwise, including advertisements as to discounts, dates and conditions;

• To request, instruct, encourage, authorise or assist any of its employees, agents or consultants to do anything in relation to the above matters.

UPON READING the material submitted in support of the application and upon hearing submissions from Mr McQuillen, Ms Heard and Mr Bamford and for the Reasons for Decision given by the Tribunal on 30 October 2006, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 42, 98, 100 and 195 of the Act to enable the applicant to engage in the specified conduct.

The Tribunal hereby grants an exemption to the applicant from the operation of sections 42, 98, 100 and 195 of the Equal Opportunity Act 1995 to enable the applicant to engage in the specified conduct.

This exemption is subject to the following conditions -

1. If, on pre-release, or as discounted tickets, more than fifty per cent of the total tickets to the Traction facility on a day at the Australian Grand Prix are sold to women, the applicant must either not offer further tickets for sale for use by women or enlarge the Traction facility so as to permit a greater total number of tickets to be sold.

2. The applicant must, in writing, advise the Tribunal as soon as possible after it becomes aware that an approximate gender balance has existed in respect of attendees at the Traction facility on each day of an Australian Grand Prix. The Tribunal will then review the need for a continuing exemption.

This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 1 November 2009.

1 My decision is that the exemption is granted. It is granted for the maximum period of three years and that period will commence from the date of the publication of the exemption in the Government Gazette.

2 I first say something about the application. The Australian Grand Prix Corporation (the Corporation) has applied under s83 of the Equal Opportunity Act 1995 (the Equal Opportunity Act) for certain exemptions from that Act in connection with the Formula One Australian Grand Prix for a period of three years. As clarified at the hearing, the application relates to tickets to the "Traction facility". This is a facility which operates during each Formula One Australian Grand Prix event at Albert Park. It comprises a covered stage used for bands and other live music performances, a marquee with a bar where food is also served and uncovered areas for those who wish to listen to the live music or to relax and socialise, to eat and drink and a viewing area where those who wish to do so can watch the races. The viewing area is in a particularly advantageous position in relation to the track. The whole area is surrounded by fencing and entry is by ticket. Tickets are generally sold before the day to which the tickets relate and they can be either for one day or for more.

3 The application for exemption is to enable the Corporation to issue for use by women only and at discounted prices admission tickets to the Traction facility. The tickets can be for individual admission or admission by group. The discounts may vary according to the size of the group or according to whether the admission is to be by an individual or by a group. The Corporation wishes to be able to refuse entry to a man who seeks entry by using one of these women-only discounted tickets. The Corporation wishes to be able to offer for sale to women only tickets to the Traction facility including discounted tickets before offering tickets to that facility for sale to men. The Corporation will determine the amount of the discounts and the timing of what I call the pre-release ticket offers to women much closer to the time of each Australian Grand Prix. To give effect to this proposal, the Corporation also seeks to be able to ask potential or actual purchasers of tickets to the Traction facility about whether the tickets are to be used by men or women, to advertise, whether in electronic form or otherwise the proposal including discounts, dates and conditions and to be able to encourage, authorise, instruct, request or assist employees, agents or consultants to carry out the proposal.

4 I first say something about the law. I then summarise the material before me. Finally, I state my conclusions.

5 Under section 83 of the Equal Opportunity Act, there is a broad discretion in the Tribunal to grant exemptions from the provisions of the Act. In a large number of cases, the Tribunal has applied similar principles when determining these applications. First, it asks is there possible prohibited discrimination? If the answer to this question is yes, it then looks at whether the express exception provisions apply or whether the proposal is within the spirit, although not necessarily the letter, of one of the express exception provisions. It also looks at whether there is an interest sufficient to justify the exemption, including whether it promotes one of the objectives of the Equal Opportunity Act.

6 I now come to the material before me. I have before me written and oral submissions from Mr McQuillen, the corporate counsel for the Corporation, an affidavit and oral submissions from Ms Heard, its General Manager, Marketing, and oral submissions from Mr Bamford, its Chief Executive Officer. The Tribunal directed the exemption application to be advertised in the newspaper inviting submissions from the public. No submissions have been received either by the Corporation or the Tribunal.

7 The material before me is this. The Corporation is established under the Australian Grands Prix Act 1994. According to this Act, it is a public authority which does not represent the Crown, but holds its property on behalf of the Crown. Its members are appointed by the Governor in Council. It is subject to the direction and control of the Minister administering the Act, who is the Minister for Tourism.

8 Broadly, its functions as far as the Australian Grand Prix are concerned, are to negotiate and enter into agreements under which Formula One events are to be held and to undertake and facilitate the organising, conduct, management and promotion of those events. The Corporation's powers include establishing a temporary motor racing circuit at Albert Park and supporting facilities, to promote Melbourne and Victoria as tourist destinations, to control admission to the designated areas used in connection with the Australian Grand Prix, to charge and collect admission fees and to advertise in connection with these events.

9 The Corporation's budget must be approved by the Minister administering the Act and the Treasurer. According to the Corporation's CEO, there is generally a shortfall between the Corporation's expenditure on conducting the Australian Grand Prix and its income received from fees and other sources. This shortfall is significant and has in the past, and I understand is expected in the future, to be met by the Victorian Government. The basis on which the Victorian Government meets the shortfall is that the benefit of holding the Australian Grand Prix in Victoria far outweighs the cost which it must defray. The estimated benefit in economic terms of the event to Victoria is approximately $174.8 million. The event brings many national and international tourists to Melbourne. Victoria's economy benefits from what these tourists spend on accommodation and goods. The broader the appeal of the Australian Grand Prix to all sections of the community the more people are likely to come to it, and the greater the benefit to Melbourne and Victoria.

10 I have before me some Australian Bureau of Statistics (ABS) figures from 2002 concerning attendance at sporting events in Australia. I also have research by Professors Valos, Hall and Oppenheim of Deakin University, conducted in 2005. The Deakin University research, through a survey and focus groups, looks at what those who come to the Australian Grand Prix regard as important factors influencing them to attend.

11 The ABS statistics show that in 2002 the most attended sports were, in order, Australian Rules football, followed by horse racing in which the statistics included horse and trotting racing and dog racing and then motor sports. For horse racing, attendance by men and women was, though not completely equal) approximately so. For motor sports, the proportion of men to women attending was two to one.

12 The Deakin University research indicates that the factors that attendees regard as important to attendance were that there were more non race-related facilities rather than just racing alone, the presence of bands and other live music and of quality food and drink, and the presence of a quality atmosphere in which to socialise. The research indicated that women regarded these factors as somewhat more important than did men. The ABS statistics show that motor sports are, nevertheless, very popular with Australians, with some one million people attending at least one motor sport event in 2002.

13 The Corporation wishes to ensure that the Australian Grand Prix, and in particular, the Traction facility, has appeal to all sectors of the community, whatever their gender. It wishes to maximise the benefits of this events to the people who attend it and to Victoria as a whole. The Corporation's market research shows that the Australian Grand Prix does not attract women in as large numbers as do some of the horse racing carnivals. It does not attract those who come to socialise rather than just for the sport. For this socialisation to occur, a rough gender balance is crucial. The Formula One motor sport itself is largely dominated by males, whether as drivers or owners of vehicles.

14 The Corporation estimates that between seventy to eighty five per cent of attendees at its Australian Grand Prix event are males, and this has been the case since 1996. It wishes to make this event one where women wish to attend and where they feel comfortable to attend. To this end, in 2006, it established the Traction facility. This facility was intended to enable people to socialise in a comfortable atmosphere. The Corporation marketed the facility through a variety of media, in a variety of ways and to a variety of businesses and venues. Over three days in the Australian Grand Prix in 2006, some three thousand two hundred people attended the facility, which represents about one per cent of the overall attendance at the Australian Grand Prix. Still, many more men than women attended - approximately eighty five per cent men to fifteen per cent women. The Corporation continues to wish to make the Traction facility appeal to both men and women in a way that promotes meaningful socialisation.

15 This proposal involves possible prohibited sex discrimination. In my view, no express exception provision clearly applies. However, in my view there is a clear interest to justify the exemption.

16 First, since the economic benefits of this event are for Victoria as a whole, and the event is financially supported by the Victorian Government which represents the Victorian people, the event should be structured in such a way that it encourages the largest possible sector of the community to attend, both men and women. This proposal is a step towards encouraging women to attend the event.

17 Second, if women attend the Traction facility, they will very probably view at least some of the races that occur. This may give them a greater understanding and appreciation of a sport which, according to the statistics, is not traditionally attended or participated in by women.

18 Third, Traction is a facility similar to a nightclub. Its purpose is to promote an atmosphere where the sexes can meet and socialise and perhaps find partners. This will not occur where one gender group swamps another. The underrepresented group may feel intimidated and will be unlikely to attend.

19 Fourth, general admission to the Australian Grand Prix is not affected by this proposal. Men and women continue to have equal opportunity to buy general admission tickets. I accept the Corporation's assurance that if sales of discounted or non-discounted tickets to women for the Traction facility on a day of the Australian Grand Prix exceed fifty per cent, then no further such tickets will be offered or the Traction facility will be enlarged or expanded to admit more patrons to attend and more tickets to be sold. If a time comes when those with tickets to attend the Traction facility represent a roughly equal gender balance, the Corporation will advise the Tribunal, which will then review the need for the exemption to continue. I have made the exemption subject to conditions to this effect. I bear in mind that before applying for this exemption, the Corporation has tried other ways of promoting the Traction facility which would not breach the Equal Opportunity Act, but that these have had only limited success.

Grands Prix Act 1994

Australian Grand Prix Corporation (Anti Discrimination) [2006] VCAT 2193 (30 October 2006)

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Australian Grand Prix Corporation (Anti Discrimination) [2006] VCAT 2193 (30 October 2006)

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