Anti-discrimination - Application to review refusal of an exemption - Relevant attribute, age.

Anti-Discrimination Act 1998; ss 14, 16, 20, 24, 39, 56, 57, 59.

Work Health and Safety Act 2012; s 20.

Tasmanian Civil and Administrative Tribunal Act 2020;

Equal Opportunity Act 1984 (South Australia); s 92.

Commissioner for Railways v Murphy (1967) ALR 706; (1967) 41 ALJR 77;

Allegretta v Prime Holdings Pty Ltd (trading as Pheonix Hotel) and Anor [1991] EOC [92364];

Jessica Hoyle and LGB Alliance Australia (Review of Refusal of an Application for Exemption) [2022] TASCAT 142;

Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308.

1. On 13 March 2025, Ms Karin Koch, the owner and operator of the Pooseum in Richmond, made an application to the Anti-Discrimination Commissioner (the ADC) applying to be exempt from the provisions of the Anti-Discrimination Act 1998 (the ADA). Ms Koch sought this exemption to be able to discriminate against individuals under the age of eight years of age from being able to enter the Pooseum, and to display a sign to this effect.
2. Following a consideration of the material filed by Ms Koch in support of the application to be exempt from the provisions of the ADA, on 23 April 2025 the ADC decided to refuse to grant the exemption sought pursuant to s 57(1)(b) of the ADA.
3. On 12 May 2025, by email, Ms Koch sought a review of the ADC's decision pursuant to s 59(1)(c) of the ADA.
4. Section 59(3) of the ADA provides that the application to the Tribunal of the review of a decision of the ADC under s 57 of the ADA is to be made in writing and is to be made within 28 days after receipt of the statement referred to in s 57(4) of the ADA.
5. As Ms Koch received this statement from the ADC on 23 April 2025, and as her application for review was made in writing on 12 May 2025, which was within 28 days of her receipt of the ADC's decision, the Tribunal has jurisdiction to determine the application for review.
6. This is my decision confirming the ADC's decision to refuse to grant Ms Koch the exemption sought.

1. In her application seeking an exemption from the provisions of the ADA, Ms Koch stated that she was seeking a three year exemption from:

(a) The application of s 14 of the ADA (direct discrimination) to allow her to deny entry to the Pooseum for children under the age of eight (age being an attribute pursuant to s 16(b) of the ADA).

(b) The application of s 20 of the ADA to allow her to display a sign notice or other advertising material informing the public that children under the age of eight are not permitted entry into the Pooseum.

1. Within the application, Ms Koch set out a number of reasons for her application for the exemption sought.
2. Summarised, these were:
   • The exhibition includes written information, education, videos, and interactive screens and is specifically designed for an audience ranging from teenagers to adults.
   • The Pooseum is not a typical museum in the sense that people wander around with no interaction from the operator. Ms Koch personally engages with every visitor answering questions and holding in-depth conversations on scientific topics of interest.
   • Because she is the only person on site, one on one interaction becomes impossible when toddlers and young people are present. Her attention shifts to ensuring the integrity of displays and the safety of the children. The Pooseum is not a place for young children, as their disruptive behaviours such as running around, shouting, shrieking, laughing loudly, spilling drinks and food, touching exhibits they should not touch and being tempted to climb on, makes it extremely difficult for visitors to focus on written and verbal information but also for her to focus on visitors. This also poses a risk to both the children and the museum exhibits.
   • Prior to the age restriction being introduced in July 2024, damage to exhibits, equipment and shop items occur daily. Since then, there has been no damage to any part of the museum or to any exhibit.
   • Young children present significant workplace health and safety concerns. On multiple occasions near accidents occurred when unsupervised children treated the museum like a playground running and bumping into elderly visitors.
   • The applicant is a sole trader with it being advisedly financially unviable if she employed staff. She manages everything on her own.
   • Many parents who visit the Pooseum with their toddlers/young children fail to supervise them, despite repeated reminders, seemingly expecting the applicant to look after their children while they enjoy the exhibition. Although always being quick enough to stop these children falling, and preventing injury, this constant vigilance forces her to follow young children around instead of focussing on her work: "I become a child attendant in my own workplace".
   • Especially during school holidays, when multiple toddlers were present, ensuring their safety became an impossible task. Advisedly some parents took their babies out of strollers placed them on the floor and allowed them to crawl between visitors without any supervision.
3. Within her written submissions provided to the Tribunal, Ms Koch also cited two further reasons for seeking the exemption, these were:

(i) The existence of an Anti-Discrimination complaint made by a parent on behalf of themselves and their child (based on the age attribute).

(ii) The provisions of the Work Health and Safety Act 2012 (WHS Act) particularly s 20(2) which requires her, so far as reasonably practical, to ensure that the workplace and the means of entering and exiting the workplace and anything arising from the workplace are without risk to the health and safety of any person. Ms Koch asserted that this duty cannot be discharged with children under the age of eight at the Pooseum. She also asserted that the duty under s 20(2) of the WHS act requires her to eliminate risks if reasonably practical, and if not, to minimise the risk. Ms Koch asserted that she has done this by precluding children under the age of eight from entering the Pooseum.

1. In concluding her application for the exemption, Ms Koch stated:

I am not seeking exemption under any other law. > > There is currently a complaint against me. > > I am content for the material in connection with this application to be made publicly available. > > While the objects of the ADA are to prohibit discrimination and other specified conduct, and to provide for the investigation conciliation of an inquiry into complaints in relation to such discrimination conduct, these objectives are to be seen in the context of an Act that makes specific provision for exemptions and exceptions. These give the Act practical utility and avoid undermining its role in Tasmanian society by being regarded as overly prescriptive. In this way, reasonable exemptions promote the standing of the Act and its objectives.

1. Subsequent to the Tribunal's receipt of Ms Koch's application for the review of the refusal of the ADC to grant the exemption sought, usual Tribunal processes were put in place to finalise the information upon which the applicant wished to have this review determined.
2. On 27 May 2025, Ms Koch provided a significant document entitled "re: A/2025/24 application for exemption" detailing her responses to the ADC's decision not to grant the exemption sought.
3. On 18 June 2025, in response to contact from the Tribunal, the Acting Anti-Discrimination Commissioner indicated that the ADC did not wish to seek to be heard in relation to the application for review, or provide any further information as the reasons for rejecting the exemption application were contained in the exemption decision and reasons for decision document.
4. Following a telephone directions conference before a case officer, Ms Koch's application for review of the refusal of her exemption application came on before me on 16 July 2025.
5. In this directions conference, Ms Koch indicated she did not wish to provide any further evidence or written submissions, but that she desired me to conduct a view of the Pooseum to accurately understand its physical layout.
6. I agreed to this request, and on 22 July 2025 conducted a view of the Pooseum. It was indicated to Ms Koch that this scene visit was not part of the evidence but was merely something undertaken to enable me to understand her evidence in support of her application for the review of the refusal of her application for exemption from the provisions of the ADA (see Commissioner for Railways v Murphy (1967) ALR 706; (1967) 41 ALJR 77).
7. Subsequent to this scene attendance, I reserved my decision.

1. After detailing what the ADC is to consider in an application for exemption from the provisions of the ADA, pursuant to s 56 of the ADA, and noting that the other factors the ADC considered relevant to such a decision were those matters published on the ADC's website, the ADC proceeded to consider these factors in deciding not to grant the exemption sought by Ms Koch.
2. After referring to Ms Koch's submission that the ADA provides exemptions and exceptions to the application of the provisions of the ADA, the ADC noted:

The exceptions in the Act are those that have been passed by Parliament. Whilst Parliament has empowered me to grant exemptions from the Act, I do so with the guidance contained in s 56 of the Act and seek to ensure they further the objects of the Act.

3. The ADC also noted that Parliament had considered the central issue to Ms Koch's application, relating to children entering venues who may cause disruption and/or risk.
4. The ADC referred to s 39 of the ADA which states:

Accompanied by adult > > A person may discriminate against a child on the ground of age if the discrimination requires the child to be accompanied by an adult in circumstances where there is a reasonable risk that the child may - > > (a) cause a disruption if not accompanied by an adult; or

(b) endanger himself or herself or any other person if not accompanied by an adult.

1. The ADC stated that it would be ultra vires for the ADC to grant an exemption for the circumstances set out in s 39 of the Act which go beyond what Parliament intended or legislated for. The ADC stated:

If the Applicant is concerned the Act is overly prescription and/or of the exception contained in s 39 does not go far enough to permit discrimination, this would be a matter for Parliament, rather than me as Acting Commissioner. It is not appropriate nor lawful for me to change the exceptions in the Act that have been established by the Parliament, in a way that is contrary to the intent of the section and in a way that does not further the objects of the Act.

2. With regard to the further basis of Ms Koch's application for the exemption being her requirement to comply with the provisions of the WHS Act, citing Allegretta v Prime Holdings Pty Ltd (trading as Pheonix Hotel) and Anor 1991 EOC [92364] (Allegretta), the ADC stated that taking reasonable precautions to prevent injury may involve, rather than discriminating against a class of people, taking necessary steps to remove the danger or alleviate the risk of injury. Prohibiting the behaviour, rather than a cohort of people, would address the risk and allow compliance with the Act.
3. The risks identified by Ms Koch related to children running and potentially falling if they climbed on exhibits. The ADC found there was no evidence before the ADC that the age of eight years and over was when people stopped engaging in this kind of behaviour. The ADC stated, "I am therefore not convinced the applicant refusing entry to people under eight to be reasonably necessary for the applicant to comply with the WHS Act".
4. The ADC next considered s 24 of the ADA which relevantly provides:

Actions required by law > > A person may discriminate against another person if it is reasonably necessary to comply with - > > (a) any law of this State or the Commonwealth; or > > (b) any order of a commission, court or tribunal.

5. The ADC noted that the WHS Act is a law of the State and that this provision is able to be relied upon by Ms Koch as a defence to any complaint if one were made against her (as in the complaint currently being made against her).
6. The ADC stated that this was a question of fact which was required be adjudicated upon by the Tribunal in an inquiry, rather than by the ADC on an exemption application.
7. In concluding its reasons for refusing the exemptions sought, the ADC further stated:
   • There was nothing to suggest the proposed exemption would target in a positive way a disadvantaged group or have any beneficial effect.
   • Children under eight years would benefit from being afforded the opportunity to attend a museum and to visit the venue with their older family members.
   • The ADC did not accept Ms Koch's argument that the exemption was necessary to allow Ms Koch to comply with the provision of the WHS Act.
   • Although the ADC considered information, photographs and other evidence of damaged items within the museum, the ADC did not consider banning of all children under the age of eight years of age to be a reasonable or measured response.
   • There was no public interest in the exception being granted.
   • Although Ms Koch's had indicated that she expected in the future to create a larger museum to "welcome visitors of all ages", there was no evidence for the ADC that this was a certainty, when it would occur, and whether or not children of eight years of age would be permitted to enter into any such expanded museum.

1. In her decision in Jessica Hoyle and LGB Alliance Australia (Review of Refusal of an Application for Exemption) [2022] TASCAT 142 (Hoyle), Ordinary Member Cuthbertson SC (as she then was) after undertaking a review of the relevant provisions of both the ADA and the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) stated at [26]:

In my view, a review pursuant to s 59 of the ADA is a merits review of the same character described by his Honour Justice Porter in State of Tasmania v Anti-Discrimination Tribunal & Ors [2009] TASSC 48, that is, it is a review in which the Tribunal is required to stand in the shoes of the decision maker and reach the correct preferrable decision based on the material before it. I note that the nature of the review conducted pursuant to s 59 of the Act is not inconsistent with s 75 of the TASCAT Act.

2. As the review process pursuant to s 59 of the ADA is a comprehensive merits review, and is not confined to the material which was before the ADC, the Tribunal is able to consider other relevant evidence not before the ADC but which is also relevant to the application for the review of the ADC's decision.

Exemptions within the context of the scheme of the ADA

1. The decision of Hoyle is also of significant benefit as it provides clear guidance as to the approach to be adopted by the Tribunal in the review of the ADC's refusal to grant an exemption from the provisions of the ADA.
2. In Hoyle, Ordinary Member Cuthbertson SC noted at [27]:

Section 56(2) of the Act provides some guidance to a decision‑maker considering an application for an exemption. Considerations set out in the Act are confined to having regard to "the desirability of certain actions being permitted to redress the effect of past discrimination or prohibited conduct" and "any other factor that the Commissioner considers relevant". The power to grant or refuse an exemption is discretionary: s57(1). Additional factors which may be relevant to the determination are also left to the decision-maker's discretion.

3. At [29]-[31] of Hoyle Ordinary Member Cuthbertson noted that s 92(6) of the Equal Opportunity Act 1984 (South Australia) was in analogous terms to s 56(2) of the ADA and further stated:

29. Section 92(6) of the Equal Opportunity Act 1984 (SA) was recently considered by the South Australian Civil and Administrative Tribunal in Re Bae Systems Australia Limited & Ors [2020] SACAT 63. The Tribunal noted the following in respect of the relevant factors: > > 6. This confers on the Tribunal a broad discretion to grant an exemption and as to the factors to which the Tribunal may have regard; there is no express limit on what the Tribunal may or may not take into account. > > 7. The discretion is, nevertheless, limited by the standard of legal reasonableness implied into the exercise of such statutory discretions; in particular, it is confined by the subject matter, scope and purpose of the legislation under which it is conferred (Minister for Immigration and Citizenship v Li [2013] HCA 18). > > 8. As to the approach to the exercise of the discretion, I respectfully adopt the statements of the Supreme Court of South Australia in Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308, in particular (at [14-16]): > > The grant of an exemption pursuant to s92 has the effect that certain conduct which would otherwise be unlawful is to be permitted. While it is the policy of the EOA that there may be a derogation of its prohibitions in some circumstances, the effect of an exemption is to qualify the norms of conduct which it seeks to establish. This is an important factor to be considered by the Tribunal in the exercise of its discretion to grant an exemption. It leads naturally to the inference that the Tribunal must, in considering an application for an exemption, have regard to the general objects of the EOA and must be satisfied that proper grounds for the exemption are established. The applicant has the onus (on the balance of probabilities) of establishing the facts relied upon for such grounds and of persuading the Tribunal that the grant of an exemption is appropriate. The grounds for an exemption will usually be found in one or more of three circumstances: the exemption is desirable, if not necessary, to achieve a purpose of the EOA; the general prohibition would be unreasonably harsh or burdensome in the applicant's particular circumstances; or there is some wider public interest (perhaps to be found in other legislation) which the grant of the exemption will serve. The redress of the effects of past discrimination is an example of the first purpose. I do not intend by this to state exhaustively the circumstances in which the grant of an exemption may be appropriate. The circumstances of particular cases may reveal other occasions in which the grant of an exemption will be appropriate. It is to be expected, however, that an applicant for an exemption will need to establish more than that compliance with the relevant prohibition is inconvenient or irksome. > > Whatever purpose the applicant seeks to achieve, it is to be expected that the Tribunal will scrutinise the evidence relied upon with some care. In many cases, the Tribunal will be required to balance the benefits sought to be achieved by the grant of an exemption against any detriments which may occur by permitting the applicant to engage in conduct which would otherwise be unlawful. This may require the Tribunal to consider the availability to the applicant of alternative means of achieving its stated purpose. > > Any exemption which is granted should be defined with some specificity and should be no more extensive than is necessary to achieve the applicant's purpose. Both the applicant and the community should have certainty as to the extent to which conduct which would otherwise be proscribed is permitted. > > 30. In my view, that is the correct approach to the assessment of an application for an exemption pursuant to the Act. Although the discretion to be exercised in making a decision pursuant to ss 56 and 57 of the Act is expressed in broad and largely unfettered terms, it must be exercised reasonably and consistently with the scope, context and purpose of the Act. > > 31. The Tribunal in this case is required to "address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account ... in reviewing that decision": Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 at [51] Bell, Gageler, Gordon and Edelman JJ.

1. It is apparent from the ADC's decision that ADC did not need to consider s 56(2)(a) as the exemption sought by Ms Koch did not seek to address the effect of past discrimination or prohibited conduct.
2. The ADC broadly took into account the purposes of the Act and her functions in determining this application. As was stated in Hoyle, "that is an appropriate starting point".
3. The ADA's long title states "An act to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of an inquiry into complaints in relation to such discrimination and conduct". Thus, the Act is primarily concerned with deterring discrimination by prohibiting discriminatory and other conduct in certain situations and establishing a scheme to deal with complaints where such conduct occurs. Pursuant to s 6 of the ADA, and consistent with that overriding purpose, the ADC has the following relevant functions:

... > > (b) to promote the recognition and approval of acceptable attitudes, acts and practices relating to discrimination and prohibited conduct; > > ... > > (d) to disseminate information about discrimination and prohibited conduct and the effects of discrimination and prohibited conduct; > > (e) to undertake research and educational programs to promote attitudes, acts and practices against discrimination and prohibited conduct; > > (f) to prepare and publish guidelines for the avoidance of attitudes, acts and practices relating to discrimination and prohibited conduct; > > ... > > (h) to investigate and seek to resolve complaints; > > ...

4. The functions of the ADC clearly align with the purpose of the Act.
5. The ADC also made reference to the ADC's website under its heading "Exemptions", when indicating the matters considered in the exercise of her discretion not to grant the exemption sought by Ms Koch.
6. These were stated as:

In considering an application, the Commissioner may have regard to:

• the desirability of certain actions being permitted to redress the effect of past discrimination or prohibited conduct; and
• any other factor that the Commissioner considers relevant.

An exemption will not be granted where it is deemed not appropriate or necessary in the particular circumstances or where an exception under the Act may already clearly apply. > > The Commissioner will also consider the following, as they relate to each application:

• Whether the exemption is consistent with the objects of the Act.
• Whether an exemption is necessary and not already clearly covered by an exception under Part 5 of the Act.
• Whether any other laws prohibit the conduct that is to be exempted.
• Whether it targets in a positive way a 'disadvantaged' group.
• Whether an exemption is reasonable and likely to have the beneficial effect planned.
• Whether or not other persons affected by the exemption will suffer by being excluded.
• Whether it is reasonable and appropriate for the exemption to be granted.
• Whether alternative or temporary measures can address the discriminatory practices, processes or procedures that are currently in place.
• Whether there is a significant public interest in the exemption being granted.

1. In my view the ADC correctly exercised its discretion when it made the decision to refuse the exemption sought by Ms Koch. Ms Koch has not discharged her onus, on the balance of probabilities by establishing the facts relied upon for such grounds and persuading the Tribunal that the grant of an exemption is appropriate - see Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308 (Pulteney).
2. Although Ms Koch has raised a number of matters which in her view would not be contrary to the objects and purposes of the ADA in her application for an exemption from the provisions of the ADA, as the ADC has stated, there is nothing to suggest the proposed exemption would target, in a positive way, a disadvantaged group, or have a beneficial effect.
3. I agree with the ADC that there is an opportunity for benefit to children under eight years of age attending the museum as many of that age can read and others understand information presented in audio and visual format with many wishing to discuss these matters with these parents or guardian.
4. Although Ms Koch has referenced the bespoke nature of the Pooseum and its subject matter as being more directed to an audience above the age of eight years, in my view a museum with the subject matter of the Pooseum is as of the same level of interest to children both over the age of eight years and under the age of eight years.
5. I also agree with the ADC that there was no evidence before the ADC that children under the age of eight were any more troublesome or clumsy than those aged beyond that age.
6. In essence, it appears that Ms Koch's major concern is not with the attendance of children under the age of eight years in the Pooseum per se, but rather the failure of parents and guardians to supervise their children within the Pooseum. To use her own words, "I become a child attendant in my own workplace".
7. As was stated in Pulteney, "an application for an exemption will need to establish more than that compliance with the relevant provision is inconvenient or irksome". In my view, Ms Koch has not done so.
8. Whilst I accept that Ms Koch is a sole trader and may not have the financial ability to hire additional staff, that is a matter for her and alternative means, rather than the exemption sought may be available to her to meet her indicated needs. This could include, but not be limited to, charging an entrance fee for all visitors to the Pooseum irrespective of their age, and ensuring all attendees with children of any age are aware of the conditions of entry requiring these children to be adequately monitored and supervised whilst within the Pooseum, and that they can be directed to leave the Pooseum if this condition of entry is not complied with. Some modifications of museum exhibits may also be of benefit to Ms Koch.
9. The exemption set out in s 39 of the ADA is also available to Ms Koch.
10. Although Ms Koch has sought to differentiate the Pooseum from other institutions, this analysis is of limited benefit as each application for exemption must be determined on the facts relating to it.
11. I am also in agreement with the ADC regarding the response to Ms Koch's further basis for her exemption application being her need to comply with the provisions of the WHS Act. Section 24 of the ADA clearly provides a potential means to address Ms Koch's concerns in this regard. I accept the commentary in Allegretta that "prohibiting the behaviour rather than a cohort of people, would address the risk allowing compliance with the Act".
12. For all of these reasons, pursuant to s 59(5) of the ADA, I confirm the decision of the ADC to refuse to grant Ms Koch an exemption from the provisions of the ADA on the basis she has sought.
13. In my view, it would be contrary to the objects and purposes of the ADA to grant this exemption.

1. Pursuant to s 59(5)(a) of the Anti-Discrimination Act 1998, the Commissioner's decision to reject the applicant's application for exemption from the provisions of the Anti-Discrimination Act 1998 pursuant to s 57(1) is confirmed.