Victorian Civil and Administrative Tribunal|2009-07-17|Before: Mr P

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)

Anti-discrimination - application for exemption - use of pool area at Council leisure centre by women only - proposed use to be mostly out of normal public opening hours of the centre - relevant considerations - Equal Opportunity Act 1995 s83; Charter of Human Rights and Responsibilities Act 2006 ss 4, 7, 8, 12 and 19

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198

The Victorian Civil and Administrative Tribunal (the Tribunal) has considered an application pursuant to section 83 of the Equal Opportunity Act 1995 (the EO Act), by Hobsons Bay City Council and Leisure Management Services Pty Ltd (the applicants). The application for exemption is to enable the applicants to operate the pool area of the Bayfit Leisure Centre in North Altona on any Friday between the hours of 7.30 pm and 9.30 pm for women only, and to advertise that service, and to advertise for and employ women only in relation to that service (the exempt conduct).

UPON READING the material submitted in support of the application, and hearing submissions from Ms Moore, solicitor and Mr Hunt, the Council's director of community services, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 13, 14, 42, 65, 100 and 195 of the EO Act to enable the applicants to engage in the exempt conduct.

The Tribunal hereby grants an exemption to the applicant from the operation of sections 13, 14, 42, 65, 100 and 195 of the EO Act to enable the applicant to engage in the exempt conduct.

This exemption is subject to the condition that by 14 July 2010 (in respect of that part of the financial year ending 30 June 2010 during which the exemption is in operation), 14 July 2011 (in respect of the financial year ending 30 June 2011), and 14 July 2012 (in respect of the financial year ending 30 June 2012), the applicants must provide a written report to the Victorian Equal Opportunity and Human Rights Commission on the average number of women per hour who, during the relevant reporting period, have used the pool area during the times to which the exemption relates.

This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 22 July 2012.

Ms S. Moore, solicitor, with Mr P. Hunt, director of community services of the first-named applicant

This exemption is granted. It will operate for three years, which is the maximum period for which under s83 of the Equal Opportunity Act 1995 (the EO Act) the Tribunal can grant exemptions. It operates on the day on which it is published in the Government Gazette.

Hobsons Bay City Council (the Council) and Leisure Management Services Pty Ltd (LMS) apply under s83 of the EO Act for exemption to enable them to operate the pool area of the Bayfit Leisure Centre in North Altona (the Leisure Centre) on any Friday night from 7.30 pm to 9.30 pm for women only, to employ women only in relation to that service, and to advertise that service and that employment. At the Council's request, LMS was joined as a co-applicant. At the Applicants' request, the application was amended to alter the time period on a Friday in respect of which the proposal applied.
At the Tribunal's direction, the Applicants advertised the exemption application at the entrance to the Leisure Centre and on the Council's website. The Tribunal is satisfied that the advertisements complied with its directions. The notice advertising the exemption application gave the public an opportunity to make submissions on it, and set a closing date for submissions of 15 June 2009. VCAT has received no submissions on the application, and no-one came to the hearing to make oral submissions. The Applicants have received no written submissions on the application, but the Council has received one oral objection to it. I mention this later.
I have before me the application and the material included in it, and a substantial amount of additional material which is attached to an affidavit of Peter Hunt, the Council's director of community services. I have heard oral submissions on behalf of the Applicants at hearing.
I first say something about the relevant provisions of the EO Act. I then make findings on the material before me. I next consider whether, apart from the Charter of Human Rights and Responsibilities Act 2006 (the Charter) the exemption should be granted. Finally, I consider the Charter.

Section 83 of the EO Act gives the Tribunal a broad discretion to grant exemptions from the provisions of the Act to people or classes of people, activities or classes of activities, or in specified circumstances. The section does not limit the discretion which it gives. In BAE Systems Australia Ltd[1] and Victorian Netball Association Inc[2] I said this about the application of s83.
In considering an application for exemption, one must first ask; is there possible prohibited discrimination involved? If the answer to this is yes, then one must weigh the interests served by the exemption against the important interests served by the prohibitions of the EO Act - namely, protection from discrimination and redress for its victims. The objectives, prohibitions and general purpose or scheme of the Act must be borne in mind. Those objectives include promoting acceptance and recognition of everyone's right to equality of opportunity, and eliminating as far as possible discrimination by prohibiting it on the basis of various attributes.
The effect of granting an exemption is to take out of the prohibitions of the Act conduct that would otherwise be prohibited.[3] The Act's prohibitions, though very important, are not at large. They do not apply to every attribute or area of activity. The Act contains express exceptions from its prohibitions.
The question must be whether the interests served by the exemption are powerful enough to justify taking the relevant conduct out of the Act's prohibitions. Examples of interests that might be powerful enough to do this include what is commonly called positive discrimination. This means positive measures to redress or reduce disadvantage or discrimination. The Act's prohibitions should not be lightly overridden.
In the BAE case, I doubted whether commercial advantage or disadvantage, alone, would be a factor powerful enough to justify removing conduct from the Act's prohibitions. It is also relevant whether there is a less restrictive way in which the purpose of the exemption might be achieved.
The sections of the EO Act relevant to this application are ss13, 14, 42, 65, 100 and 195. Sections 13 and 14 broadly concern discrimination in relation to applicants for employment and employees. Section 42 relevantly concerns discrimination in the provision of services. Among other things, s65 prohibits discrimination by excluding a person from participating in a sporting activity. Section 64 defines 'sporting activity' to include game or pastime. Section 100 broadly concerns the asking of questions, the answers to which might be used as a basis of discrimination. Section 195 concerns discriminatory advertising.

On the extensive material before me, I make these findings. The Council is a body constituted under the Local Government Act 1989 (Vic). Its municipal district is Hobsons Bay. That district includes, among other areas, North Altona, East and West Newport and Williamstown.
Statistics in the material before me show that almost 30 per cent of Hobsons Bay residents speak a language other than English at home. Of the languages spoken, Arabic is the third most widely used. 4.8 per cent of Hobsons Bay residents follow Islam. In 2001, 24.1 per cent of Hobsons Bay residents were born in non English-speaking countries.
Statistics from the 2006 census show that, of the 16,786 residents of North Altona, 79.4 per cent nominated a religion. Of these, 1489 or 13.7 per cent nominated their religion as Islam. Seven hundred and thirty four of these were women. Census figures show that other parts of the Hobsons Bay municipality also have significant numbers of residents who follow Islam, but the highest number of these residents is in North Altona.
According to census statistics for the 2006 census, in North Altona the most widely spoken language other than English is Arabic. 1381 residents in North Altona speak it at home, of which 679 are women.
Many newly arrived migrants have settled in the Hobsons Bay municipality, including refugees. They come from countries such as Burma and Thailand, and countries in the Horn of Africa.
Family violence is an issue of concern to the Hobsons Bay City Council. The material before me shows that a significantly higher proportion of women than men are victims of this. Statistics kept by the Council show that, in the financial year 2006/07, the Hobsons Bay municipality had the second highest reported rate of family violence in the western metropolitan area - higher than the rate for Victoria as a whole.
As part of the preparation of the Council's 2003-2007 Sport and Recreation Strategy Plan, Council commissioned Stratcorp Consulting to consult the community and prepare a report and recommendations. That report is in the material before me. It is clear that extensive community consultation occurred, including with groups representing various cultures, language groups and sectors of the community.
The report concluded that the proportion of males who participated in sport or recreation in the municipality was slightly higher than females, and that people whose parents were born in non English-speaking countries had a lower participation rate in sport and recreation than those whose parents were born in English-speaking countries. The report identified cultural constraints as one of the reasons for lack of participation. It identified swimming as being one of the most popular sports or recreations, particularly among the Muslim community.
Multicultural focus groups who participated in the consultation process identified a need for the Council's recreation programs to become more culturally sensitive, and particularly to the need to provide exclusive access areas where women could swim. The report's recommendations included a recommendation that the Council improve access for migrant and other culturally and linguistically diverse groups who, for cultural or religious reasons, were currently disadvantaged in accessing sport and recreation facilities provided by the Council. It recommended that a diverse range of programs be provided and that community involvement in the development and running of these programs be encouraged.
Muslim women and women from some cultures cannot swim or be in a state of undress in the presence of men who are not family members. They are not permitted to do so by their religion or culture.
Women who have been subject to sexual abuse or assault or to other violence at the hands of men are likely to feel safer and more comfortable if they can swim where men are not present. Other women, too, for reasons of body image, self consciousness or embarrassment, may feel more comfortable swimming where men are not present.
The Council's multicultural advisory group, its multicultural officer, and the Australian Arabic Women's Community Group support the application. The Australian Arabic Women's Community Group expects that 50 to 60 women (at the least) would attend the proposed program. On the evidence, it is likely that the numbers who will attend the program will be greater, given the significant number of Muslim women living in the municipality.
The Leisure Centre is one of five sport and recreation centres in the Hobsons Bay municipality. It is located in North Altona. It is managed on the Council's behalf by LMS. It includes an aerobics room, a gym, a large swimming pool and other facilities such as a spa, steam room, a warm water pool, a crèche and a café. Its current opening hours are Mondays to Thursdays between 6.00 am and 9.00 pm, Fridays between 6.00 am and 8.00 pm, Saturdays between 8.00 am and 6.00 pm, and Sundays between 9.00 am and 4.00 pm. The Centre charges a fee to use its facilities and a lesser fee for those with a concession card.
The Applicants' proposal is this. They will operate a swimming program in the Leisure Centre's pool area for women only each Friday from 7.30 pm to 9.30 pm. The last one and a half hours of each of these sessions occurs when the Leisure Centre is normally closed to the public. The first half hour of the session would occur during normal centre opening hours. During that half hour, the pool area would be closed to men, but the rest of the facilities in the Centre would remain open to any person who wished to use them. Women who attend the proposed program would be charged the same fees (including concessional fees) as any other members of the public pay for use of the Leisure Centre's facilities. At the times when the proposed program is being conducted, the windows surrounding the pool area will be screened so that people outside cannot look in at the swimmers. The pool area will be staffed by women only at these times.
Council will bear the cost of the screens for the windows in the pool area. Council has applied to Vic Swim to assist it with the cost of staffing the program. The Council has considered various other alternatives to the program, but this is the most cost effective. It sought to restrict as little as possible the use of the Centre during ordinary public opening hours.
The Applicants' keep statistics on visitors to the Leisure Centre. These show that, of the users of the Leisure Centre, 40 per cent are men and 60 per cent are women. The statistics for the financial year ended 30 June 2009 show that, on Fridays, average numbers of visitors to the Centre per hour vary from a low of 38 per hour in September and December 2008 to a high of 103 per hour in March 2009. There is anecdotal evidence that visitor numbers are lower for the last public opening hour on a Friday evening. This is not surprising, because no group fitness classes are conducted at the Centre from 7.00 pm onwards on a Friday.
After the exemption application was advertised, the Council's multicultural officer received an oral objection to the proposal by a man who said that he considered the proposal unfair and discriminatory. This person has not appeared at the hearing, and did not reduce his objection to writing.

I first consider this question from the point of view of the EO Act. I then consider the application of the Charter.
Putting the Charter to one side, I agree with the Applicants' submission that the exemption should be granted. There is possible sex discrimination involved in the proposal. But in my view, the interests served by the exemption justify the overriding of the prohibitions against sex discrimination in the EO Act. The exemption is different from those previously granted by the Tribunal in respect of women only swimming programs in other leisure centres in Victoria. Those proposals involved swimming programs for women only run at times when the leisure centres were closed to the public. Under this proposal, the use of the pool area of the Leisure Centre (but not of the other facilities of the Centre) by men will be shortened by a half an hour on a Friday evening. In my view, this is a minimal restriction on the public use of the pool area by men. A period of half an hour every Friday is involved. It occurs at a time when visitor numbers to the Centre are relatively low.
Against these considerations, one must weigh the advantages of the program. It will give an opportunity to women who, for religious or cultural reasons, cannot swim in the pool while men are present, an opportunity to use that pool area of which they would not otherwise have. It will give an opportunity to women who have suffered from sexual abuse or assault or domestic violence at the hands of men and who, because of fear, feel unable to swim in the company of men, an opportunity to use the pool area. It will give to women who, for body image reasons or reasons of self-consciousness, prefer not to swim in the company of men, an opportunity to use the pool area. Because the pool area is currently open to men and women alike, all these women cannot, at present, use it at all. The pool area is currently open to all for at least 90 hours per week. This proposal seeks to allow women who could not otherwise use the pool area two hours per week to do so.
Benefits from the program are these. It will give the women I have mentioned an opportunity to participate in a healthful recreational activity in a communal and supervised setting. This is an opportunity which, under the current operating conditions of the Centre, they do not have. It will provide community contact for those who may feel marginalised or socially isolated and will give them an opportunity to meet, socialise and form friendships in the local community. The communal sharing of problems and understanding which will result in benefit not only the women who attend the program, but the families of these women too. The women who attend the program pay the same fees as other members of the public and, in my view, the cost implications of the proposal are minimal.
Although the proposal does not directly fall within one of the express exception provisions in the EO Act, it is consistent with the interests underlying two of the express exception provisions. Section 80 permits (in certain circumstances) discrimination which is reasonably necessary to protect health. Section 82 permits the provision of special services, facilities or benefits to meet special needs of people with an attribute recognised by the EO Act, or to reduce disadvantage suffered by them in various areas such as welfare.
The Applicants have devised this program so as to have a minimal impact on the use of the pool by the public. But their aim is to encourage women who make use of the program to bring their children (aged four and under) with them. This aim will be thwarted if the program is held too late in the evening. In setting the program's times, the Applicants have (in my view) balanced these two considerations. The proposal is the least restrictive alternative.

The Applicants submit and I agree, that the Council and (to the extent that it performs functions of a public nature on the Council's behalf) LMS are public authorities under s4 of the Charter. Section 4(1)(e) specifically states that a Council is a public authority for the purpose of the Charter. Under s4(1)(c), an entity (here, LMS) when exercising functions of a public nature on behalf of a public authority (here, the Council) is a public authority to that extent. I assume (without deciding) that the Tribunal, when determining exemptions, is a public authority. I have commented on the unusual nature of the exemption power in the BAE decision, and do not need to repeat what I said there.
The effect of s38 of the Charter is to make it unlawful for the Tribunal (in determining this exemption application) and the Applicants, to act in a way incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Under s32, so far as it is possible to do so consistently with their purposes, all statutory provisions must be interpreted in a way that is compatible with human rights. What is in question here is how the Tribunal should exercise its discretion to grant exemptions under the EO Act, and what action the Applicants can or should take in the light of the Charter. This is what it means to apply ss32 and 38.
What human rights might be affected here? I agree with the Applicants that they are these. There are rights under s8 - the right to enjoy human rights without discrimination; the entitlement to be equal before the law and to have equal protection of the law without discrimination; and the right to equal and effective protection from discrimination. There is the right under s12 to (among other things) move freely within Victoria. These are rights relevant to the way in which men may be affected by this proposal.
There are also some rights which are relevant because of the way in which the proposal relates to women. Under s14(1)(b), there is the freedom to demonstrate one's religion in practice. Under s19(1), there is the right of people with a particular cultural or religious background not to be denied the right, in community with others of that background, to enjoy their culture and practice their religion.
Some of the human rights in the Charter are limited by specific provisions. The rights in s8 which I have earlier mentioned are limited by s8(4). That provides that measures taken for the purpose of assisting or advancing persons or groups disadvantaged because of discrimination do not constitute discrimination.
There is also a general limitation provision. Under s7(2), a human right 'may be subject only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom taking into account all relevant factors'. Those relevant factors expressly include the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
In my view, s8(4) applies to this proposal. It can be said that, by providing in the Leisure Centre 'mixed' swimming facilities for any member of the public (whether a man or a woman) the Applicants may indirectly discriminate against women who, because of their religious or cultural background, cannot access these facilities. In this sense, this proposal is a measure to assist women who are disadvantaged by that discrimination.
In any event, I accept the Applicants' submission that this proposal represents a reasonable limitation on the human rights in ss8 and 12. The human rights in these sections are important. So is the purpose of the limitation. The purpose of the limitation is to provide an opportunity to women who would otherwise be unable to engage in healthful communal recreational activity of this kind to do so. This is an opportunity which men and women without the cultural or religious background of these women, or without their history of violence or abuse at the hands of men, or without their self-consciousness or concerns about body image, currently have. The limitation on the rights of men which the proposal contemplates is relatively small. The limitation is adapted to and connected with its purpose and is not arbitrary or disproportionate. There is no less restrictive alternative to achieve the purpose of the limitation. The limitation is framed in a way that will interfere as little as possible with the use of the pool area by men at times when the Centre is open to the public. The employment of women only to staff the pool area during the conduct of the proposed program is necessary for the program to work. These women are unable to use the pool area while men are present - whether the men are staff or members of the public.
I also consider it a relevant factor that this limitation deals with a possible collision of human rights in these circumstances. I have mentioned the various rights under s8 and under s12 which men might argue are engaged by this proposal. But there are also the human rights of women under ss14 and 19 to practice aspects of their culture and religion. In one sense, it is the exercise of those rights to practice aspect of their culture and religion which makes them unable to swim at the Centre while men are present and so means that use of the pool area is currently barred to them.
The limitation on human rights which this exemption proposal represents deals effectively with the possible collision between the two sets of human rights I have just mentioned.
I would add that I have looked at the Explanatory Memorandum for the Bill which eventually became the Charter to help in the interpretation of the human rights I have just mentioned. I note, for example, that the Explanatory Memorandum, when it speaks of s12, gives some examples of reasonable limits on the right of freedom of movement in that section. These may be summarised by saying that they relate to situations where restriction on freedom of movement is justified by some other important purpose- for example, restrictions on persons lawfully detained, parole orders, guardianship orders, and family violence intervention orders.

I conclude that the exemption should be granted. I have explained already how long it will operate and when it will commence.
I have imposed a condition on the exemption. There is a need to monitor whether the exemption continues to be needed, and whether the program which it authorises continues to be well-attended. The condition requires the Applicants to provide annual reports to the Commission about the numbers attending the program. Compliance with the condition may, among other factors, will be taken into account in any application for renewal of the exemption.

Human Rights and Responsibilities Act 2006

Opportunity Act 1995

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)

Legislation Cited (3)