Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 (22 September 2009)

Victorian Civil and Administrative Tribunal|2009-09-22|Before: Kevin Bell J

The Application For Order (Form 2) and sworn Affidavit of Dael Perlov, acting on behalf of Lifestyles Communities Pty Ltd, is attached.

The 11th August 2007 is fast approaching and we would appreciate the Tribunal's assistance in allowing sufficient time before this date to schedule a hearing for our attached extension.

Please don't hesitate to contact me for any further information.

I APPLY TO THE Victorian Civil and Administrative Tribunal for an exemption under section 83 of the Equal Opportunity Act 1995.

The Application is sought to provide for the sale and residency of accommodation units and related services in adult communities catering only for those over the age of 55 years (the "activity") as carried out by Lifestyle Communities Pty Ltd and its related companies identified in the Schedule attached to this application.

The name of the applicant was specified to be Lifestyle Communities Pty Ltd and its related companies, which were identified in the schedule to be Lifestyle Communities Holdings Pty Ltd, Lifestyle Communities Pty Ltd, Brookfield Village Development Pty Ltd, Brookfield Village Management Pty Ltd, Lifestyle Brookfield Pty Ltd, Lifestyle Warragul Pty Ltd, Lifestyle Seasons Pty Ltd, Lifestyle Shepparton Pty Ltd and Lifestyle Whirakee Pty Ltd.

The application was supported by an affidavit from Mr Perlov dated 18 May 2007. It referred to the first community established by Lifestyle Communities Pty Ltd (namely Brookfield Village) and to the formation of the other companies to carry out the existing or future business of the group. Mr Perlov referred to new communities intended to be established in Warragul, Tarneit, Shepparton and Bendigo.
Mr Perlov's affidavit referred to the expiry of the existing exemption on 11 August 2007, held by "Lifestyle Communities". He said that "Lifestyles Communities Pty Ltd and its related companies now seek an extension to that exemption to restrict the availability of ownership and residency in its Over 55s Communities to those over the age of 55." The affidavit variously refers to "Lifestyle Communities Pty Ltd" and to that company "and its related companies".
The affidavit provided further information "on the operation of the Over 55s Communities." The information was general in terms and based on the Brookfield Village model. Mr Perlov confirmed that the conditions specified by McKenzie DP in the 2004 exemption would be met in respect of the 2007 exemption, if granted.
The affidavit referred again to the report of Maxine Cooper & Associates which was relied upon in the 2004 application. No other information of this nature was provided. Mr Perlov argued that, just as a hostel or an education authority could provide accommodation for people over a certain age, so should his company be allowed to do so.
The affidavit said that, on the basis set out, "Lifestyle Communities Pty Ltd and its related companies seek the exemption set out in the Application filed in this matter." It offered further information if required.
In the affidavit, Mr Perlov essentially made the case for exemption to be granted in respect of further communities on the basis of the materials supplied with respect to Brookfield Village. Notably, no further substantiation was supplied.
When an exemption was granted, the senior registrar of the tribunal wrote to "Lifestyle Communities Pty Ltd" on 19 July 2007 in the following terms:

I refer to your application received by the Tribunal on 22 May 2007, seeking exemption from the provisions of the Equal Opportunity Act 1995.

The Tribunal has considered and granted the exemption as set out in the enclosed copy of the determination which will be published in the Government Gazette

The exemption number must be included in advertisements that relate to this exemption. If you have any queries please contact the Tribunal...

The exemption was granted by McKenzie DP in favour of "Lifestyle Communities Pty Ltd". It was otherwise in the same terms as the 2004 exemption, which referred to "the establishment and operation of residential communities for people over 55 years of age..." The exemption did not refer to, and was not on its face granted to, the other companies of the group. Whether McKenzie DP intended to extend the exemption to the other companies and in respect of the additional communities, and whether the exemption should be amended to reflect this, is not a question before me.
I brought the issue of the scope of the 2007 exemption to the attention of the Lifestyle group. They advised the tribunal that they had acted on the basis that the 2007 exemption was granted to all of the named companies and in respect of the past and specified future communities, and have been conducting their business on that basis. I take that into account, but on its face the exemption granted by McKenzie DP was to Lifestyle Communities Pty Ltd.

(ii) Present applications: evidence and submissions

The application for the exemption dated 16 April 2008 now before me was made by Lifestyle Communities Ltd and its three related companies (Lifestyle Community Management Pty Ltd, Lifestyle Communities Development Pty Ltd and Lifestyle Communities Investments Pty Ltd), as I have already explained. It makes application for an exemption with respect to "the sale and residency of accommodation units and related services in adult communities catering only for those over the age of 50 years (the "activity") as carried out be Lifestyle Communities Ltd and its related companies." The application says that the reasons for making the application as set out in an attached affidavit dated 16 April 2008, also by Mr Perlov. Except for the specification of the age of "over the age of 50 years" and the new companies, the application is identical to the exemptions previously sought.
None of the companies who are applicants in the present application were named in the previous applications, and vice versa. This was not explained but I infer from the name of the companies in the group, the contents of paragraph 10 of Mr Perlov's affidavit and what I was told in submissions that the business of the group has been restructured. It has been floated as a public company under Lifestyle Companies Ltd, of which the other three named companies are subsidiaries. Lifestyle Communities Management Pty Ltd operates and manages the group's present and future villages. Lifestyle Communities Development Pty Ltd develops the villages and sells the residential rights and Lifestyle Communities Investments Pty Ltd owns the land on which the villages are located.
Mr Perlov's affidavit recounts the history of the previous applications and refers to the activities covered by the present application. The affidavit says Brookfield Village was the only one operating until February 2008, but that several others were established in that year and more were planned.
The affidavit then says the Lifestyle group sought the exemption so that the companies could restrict availability, ownership and residency of its communities to people aged over 50 years in all future villages except Brookfield Village. The age limit there is to be maintained at 55 years, to keep faith with residents who entered it on that basis. The affidavit goes on to say it was intended to establish Lifestyle Seasons in Tarneit (137 dwellings), Lifestyle Warragul (183 dwellings), Lifestyle Shepparton (317 dwellings), Lifestyle Lynbrook (363 dwellings) and Lifestyle Whirakee in Bendigo (250 dwellings), plus others that may be developed in the future.
The application raises significant issues. Yet the Lifestyle group relies almost entirely on the information supplied in support of the 2004 and 2007 applications. The affidavits and exhibits in those applications were simply exhibited to Mr Perlov's affidavit.
There is no further evidence of need, existing means of meeting the need, alternative availability of housing, population demographics, the characteristics of the target group, how they have been disadvantaged by discrimination or any other material with respect to the five additional localities, and nothing in respect of the potential "future villages", wherever and in however many number they may be. Mr Perlov's affidavit did say that: "As a result of community marketing on Warragul and Shepparton I am of the view that the need for affordable housing is even greater in rural Victoria than in metro Melbourne."
The group has offered to supply further information if required. I took that invitation up by inviting Mr Perlov to give further information at the hearing, which he did (see below), and by inspecting Brookfield Village. But it is for the applicant to substantiate their case. An applicant could reasonably expect the tribunal to seek clarification on matters of detail, but not to request information for the purpose of overcoming significant deficiencies in their case.
Mr Perlov's affidavit does address the question of reducing the age of admission from 55 to 50 years, but in an unsatisfactory way. He based the application in that respect on demand for places from people in the 50-55 year old age group. He referred to that demand "since opening in 2004". Although he doesn't say so, that must have been in respect of Brookfield Village, for which application to reduce the age is expressly not being made. He also referred to "interest" received from people during marketing for the villages to be established in Shepparton, Warragul and Tarneit. He said Lifestyle had received enquiries from 60 people aged 50-55 years who "expressed the view that our villages suit their needs and financial position." This focus on demand suggests the application to lower the admission age is based on purely commercial considerations.
Mr Perlov referred to a large number of "other similar villages" who had commenced marketing to the same age group, and he exhibited examples of their promotional material. He did not address why the operators of these villages have been able to conduct their businesses in the private market in the usual way without an exemption, yet the Lifestyle group needed one.
The Lifestyle model of providing accommodation for the older age group has been well explained. A company in the group owns the land (including the roads and community facilities), which covers many hectares. The perimeter of the land is fenced and its entrance is gated, but it has made roads, street signs and is laid out like a normal suburban residential area. The resident buys a mobile home from Lifestyle. It is placed on a designated site on the land, which is leased to the resident for a site fee. The arrangement is covered by the Residential Tenancies Act 1997. The term of the site lease is 45 years, with an option to renew for that same period. Residents may transfer the lease, but on the same terms and only to people within the target age group. Permission is required from Lifestyle but would not be unreasonably refused. If a resident dies, the benefit of the lease passes to their heirs and successors, but subject to the same restrictions. Residents can (with permission) sub-let for up to 12 months, again subject to those restrictions. A feature of the village communities is that they have community, meeting and recreation facilities and communal gymnasiums.
In their submissions to the tribunal, the Lifestyle group referred to the special measures provision in s 8(4) of the Charter and said "what they are doing is effectively positive discrimination". It was correctly submitted that, if s 8(4) applied, I need go no further, but that if it did not apply, the critical question was justification under s 7(2). In that respect, as in others, the legal submissions made on behalf of the group were of the first order.
The submissions in support of the application focussed on the demand within the 50-55 year old age group for the accommodation supplied by the group. It was submitted the villages provided an accommodation option which people in this age group did not presently have. There was a demand and a need for something which the Lifestyle group would meet or supply.
The grounds of the application were developed in a later affidavit dated 30 September 2008 from Mr Perlov. He said the exemption would address possible age discrimination in the operation of the Lifestyle group of companies, be consistent with the underlying objectives of the Equal Opportunity Act to address and reduce disadvantage suffered by those with a particular attribute and allow the Lifestyle group to provide affordable, suitable and secure accommodation for persons aged over the age of 50 years and a housing choice they currently lacked.
As to why younger people had to be excluded, it was submitted that the character of the village was quiet and secure, which might be disrupted by younger people. Also, re-sale to people under the minimum age had to be prevented to maintain the character of the village communities. This was added late as a consideration and not developed.
At my invitation, Mr Perlov gave some further background information at the hearing. He described the development of the Lifestyle accommodation model. He said the target group was ten years younger than traditional retirement villages. He said people in this group were active and mobile, and travelled a lot. The average age of the group's present residents was 62 years. They all got the pension and few were self-funded retirees. Most had very few assets. Residents typically bought a mobile home from Lifestyle for about $250,000.00. Residents would get that money by selling the family home. Many were left with $50,000.00, which was a lot of money to them.
Mr Perlov said "it is not about us discriminating against anybody else, it's about us providing something which these people want and need and they otherwise couldn't access."
He said that, if the villages were open to all age groups, the older residents would not get the same sense of security and of being with like-minded people. Younger people with mortgages and children would not normally be attracted to this accommodation option. But children are not banned from residing in the village, although that issue had not yet arisen.
Lifestyle relied on letters of strong commendation from various residents of Brookfield Village, which I have taken into account.
The application was advertised in Melbourne, state-wide and in the various localities. There was no significant response. This is not uncommon, which affects the weight I give to this consideration.
At my request, Lifestyle gave notice of the application to the Minister for Planning. The Minister advised he had no objection on planning grounds.
The Victorian Human Rights and Equal Opportunity Commission has not opposed the application.
I conducted an extensive view of the Brookfield Village community in Melton, inspecting the community centre, the inside of a mobile home and the sports facility. It was an impressive development which seemed to provide safe, secure and quiet accommodation for its residents.
In summary, Lifestyle Communities Pty Ltd has an exemption with respect to Brookfield Village in Melton based on an exclusion age of 55 years. There is a question about whether that exemption was intended to cover other companies in the group (which are not the companies now before me) and other villages. The present application is by Lifestyle Communities Ltd and its three subsidiaries. It is in respect of Brookfield Village in Melton (although Lifestyle Communities Pty Ltd already has an exemption in relation to it) and five other villages in outer-suburban Melbourne and country Victoria, and all other villages to be established by the group in the future. Except in respect of Brookfield Village, the exclusion age sought is 50 years.
I turn to the consideration of that application, beginning with whether exemption is being sought for a special measure.

(iii) Is the exemption being sought for a special measure?

The Lifestyle group claims their application is for an exemption in respect of activities that constitute measures within s 8(4) of the Charter. If that is correct, the application should be granted on that basis without considering justification under s 7(2). It is therefore convenient to consider that question first.
Section 8(4) applies to measures taken for the purpose of assisting or advancing persons or groups disadvantaged because of discrimination. By the principles I have already identified, the purpose of the measure must be established by positive proof, the persons or groups must be properly identified and the cause of the disadvantage must be discrimination within the meaning of the Equal Opportunity Act. The provision is applied with its beneficial purpose (substantive equality) in mind, but with due circumspection.
The special measure purpose is not established in this case for a number of reasons.
The purpose of a measure within s 8(4) is to give effect to the fundamental value of the equality rights in s 8 of the Charter, being substantive equality and the equal dignity, worth and potential of every individual. The Lifestyle group seeks to extend to everybody over 50 years of age the same access to its village accommodation, whatever be their age over that age, level of socio-economic disadvantage, accommodation need and present options. It excludes everybody aged less than 50 years from that access, whatever their individual position in these respects. That is a legitimate commercial purpose of the group, but it does not translate to the purpose of achieving substantive equality.
The evidentiary foundation of the application is inadequate. The application is based almost entirely on information supplied in the previous application regarding Brookfield Village. Yet the present application concerns that village, villages in five other locations and any and all villages that may be established in the future. In the absence of current evidence about Brookfield Village, and evidence about the conditions prevailing in the other areas, I am not prepared to conclude that the present and future accommodation to be supplied by the group constitutes a measure within s 8(4). I would not be prepared to reach that conclusion with respect to future villages of which there was virtually no evidence.
The requirement for positive proof of the need for a special measure, and the proportionate connection between that need and the means proposed for meeting it, are important parts of the analysis. The degree of substantiation provided by the Lifestyle group in the present application does not enable that analysis to be properly undertaken.
The conceptual basis of the claim by the Lifestyle group to special measure status is deficient. To attain that status, the group would have to establish that at least a majority of persons aged over 50 years are disadvantaged because of age discrimination in obtaining quiet, safe and secure accommodation that meets their needs. To make good such a bold proposition would require a substantial case which the group has not mounted.
I might accept on reasonable proof that there is some age discrimination in the Victorian housing and accommodation market, particularly in respect of older people or groups from low socio-economic, culturally and linguistically diverse and aboriginal backgrounds, and in respect of some women and young people. The villages of the Lifestyle group are not so targeted.
A special measure must be for the purpose of ameliorating disadvantage caused by discrimination. The persons or groups to be assisted or advanced must be suffering disadvantage from that cause. The village accommodation provided by the group, as articulated in this case, does not fit into that framework.
The group's application confuses market demand for accommodation of a particular type with the needs of people or groups disadvantaged by discrimination. That is not a necessary relation. The group's case in this regard might have been more convincing if it had identified the disadvantage arising from that cause, as experienced by identified persons or groups, designed a program to ameliorate that disadvantage, and market tested that program.
The case made by the Lifestyle group in favour of reducing the exclusion age from 55 to 50 years is particularly unsatisfactory. The application in this respect was based on the demand felt by the group from people aged 50-55 years. No serious attempt was made to establish how people in this age group were disadvantaged by discrimination in the necessary sense, and how their position was different to, say, people aged 45-50 years. Demand for a product is an expression of a consumer's purchasing preference. It is not necessarily evidence that the consumer is disadvantaged by discrimination in respect of their access to the product.
The purpose of a special measure can legitimately be achieved by commercial means. The activities of many privately operated companies supplying goods and services to persons or groups disadvantaged by discrimination come within this category. Some are publicly funded and others are not; some trade for profit and others do not. A private operator can thus obtain special measure status for business activities which are properly for the specified purpose. But that status flows from the character of the activities, assessed against the statutory test on positive proof, not from generalised assertions made about the nature of the operator's business.
Section 8(4) of the Charter does not apply to the activities for which the Lifestyle group has sought exemption. It is therefore necessary to consider the application of s 7(2).

(iv) Would the limitation be justified under s 7(2)?

For an activity that is not a special measure within s 8(4) of the Charter, the discrimination entailed could only be justified by applying the general limitations provision in s 7(2). The issue now to be determined is whether the activities of the Lifestyle group are so justified. I have already identified the relevant principles, which I apply as follows.

Excluding people not aged over 50 years from the group's village accommodation facilities engages their rights to equal protection of the law without and against discrimination in s 8(3).
We have seen that the fundamental value of the equality rights is the equal dignity of each person. Those rights are a natural incident of that dignity. The right to equality is a right to substantive equality. It is a right of the first importance. Equality and non-discrimination are the foundations of the rule of law and democratic society.
It is a usual feature of exemption applications that there is no particular "victim" of the intended discrimination. Usually, such applications are undefended and no-one complains. Applications are not often opposed by the Victorian Human Rights and Equal Opportunity Commission. Many are routine. It is rare for the advertising and notification procedures adopted by the tribunal to result in someone appearing to oppose the application. This is easy to understand. Opposition normally comes from people who feel directly affected by proposals. Exemption applications do not usually produce such directly felt effects.
Yet exemptions can have far-reaching consequences. The exemption can be for an activity in one place and be extended over time to include many others. Few people may initially be disadvantaged or discriminated against, but the numbers may grow much larger over time. All of this can occur by decisions made to grant or renew exemptions in hearings with no contradictor, or even on the papers. The risk is that discrimination of considerable scope may build up little by little - discrimination by stealth.
Given this feature of exemption applications, I think it is very important for the tribunal to take the nature of the right being limited into proper account, as it was under the tribunal's pre-Charter jurisprudence. The tribunal is the guardian of the human rights of the community in these applications. In the present case, every Victorian not over 50 years has an equal right to be protected from discrimination. It is a right of the first importance. It would be limited if I were to grant the exemption sought.

The purpose of the exemption being sought was taken into account under the tribunal's pre-Charter jurisprudence. That consideration continues to be relevant here. This would include any analogy with exemptions or exceptions in the Equal Opportunity Act. It would also include whether the exemption is being sought for a wholly commercial purpose.[398]
The purpose of the limitation, as articulated by the Lifestyle group, would be to provide safe, secure and quiet accommodation in gated communities to people aged over 50 years. That is an important purpose. People within the target age group have a legitimate interest in accessing accommodation of the kind supplied by the group, which I take fully into account. It is not determinative. Whether that purpose can and should be achieved by the ordinary operation of the market without the protective shield of an exemption is an important contrary consideration (see below).
Section 55 of the Equal Opportunity Act allows age and other forms of discrimination in the provision of hostel or similar accommodation. This purpose has a weak analogy with the present case because s 55 is directed at welfare measures.
The purpose of the Lifestyle group is to provide accommodation to all persons aged over 50 years, whatever their level of need for such accommodation and their other options. The purpose is not to provide accommodation to older persons with special needs.
While the provision of such accommodation is an important purpose in general terms, it is difficult to make an adequate assessment about the degree of the importance. The substantiation provided by the group has been deficient in this regard. To repeat, the application was based on four year old information concerning Brookfield Village. There is virtually no evidence of need, demographics and existing services in the other areas. As to the application to reduce the admission age from 55 to 50 years, there is virtually nothing but the evidence of demand.
The fact that the group now seeks to reduce the admission age in that way raises doubts in my mind about the integrity of the purpose of the admission rule. The application to reduce the age seems to be a commercial response to demand pressure, not a response based on recognising that the rule is too strict for its purpose.

The admission rule would be that all persons not aged over 50 years, without qualification, would be ineligible for admission.
The rule is based on age, not on likely behaviour or other unsuitability for residence in the group's accommodation villages.
The selection of 50 years of age as the cut-off point is a concern. This is less than the normal retirement age of 65 years by 15 years, and less than an early retirement age of say 55 years by five years. It is less than the minimum age applying at Brookfield Village of 55 years by five years. Fifty-five years is also the minimum age for residents under the Retirement Villages Act 1986.[399]
The rule is objective and clear, as would be the conditions. It would not be deficient in form.

(D) Relationship between the limitation and its purpose

The purpose of the limitation is to provide safe, secure and quiet accommodation in gated communities to persons aged over 50 years.
The premise of the proposed admission rule is that all persons not aged over 50 years would detract from that purpose, whatever their actual suitability for residence in the village community. This is a rule based on stereotyping the behaviour and suitability of people of a certain age. As I have said, it is not a rule based on the need to exclude people exhibiting or likely to exhibit certain behaviour or who do not satisfy specific standards of suitability.
There is not an appropriate relationship between the limitation and the purpose. It would be legitimate to take measures to ensure suitable people were selected for residence in this type of accommodation. The likely behaviour of someone seeking residence would be a relevant consideration. But the exclusion for which exemption is being sought is not based on likely behaviour and suitability (which are not discriminatory attributes). It is based on age. Younger people, who may be suitable against every criterion, including behaviour, are to be excluded. Older people who would be unsuitable against those criteria are not excluded.

In the respect that an exemption is only needed if the activity is arguably prohibited discrimination, the question whether an exemption is needed has been taken into account under the previous principles of the tribunal[400] and I should do so here.
The exemption is needed in that sense in the present case. The application of the admission rule sought by the Lifestyle group would constitute age discrimination. The rule would directly discriminate against people having that attribute in respect of access to accommodation in the group's villages.
Accepting that, under the Charter the minimum impairment principle requires need to be examined from another perspective, namely whether the purposes of the discrimination could be achieved by lesser or other means. The Lifestyle group must show an age-discriminatory admission rule, based on a minimum age of 50 years, is a legitimate and proportionate means for regulating access to the village accommodation. The availability of less restrictive means is an important aspect of that consideration.
In the every-day market place, many goods and services are provided to consumers in particular categories, including the young and the old. Legitimate commercial means are available whereby products can be lawfully marketed to such categories of consumer. The inherent suitability of a product for consumers with particular preferences, including age-based preferences, can be the strongest marketing tool available. In the great majority of cases, these legitimate commercial means are sufficient. Applications for exemption from commercial operators are, therefore, not very common. This is a positive thing in a market economy based on the principles of competition. Of course, if an exemption is for a measure within s 8(4) or is demonstrably justified, it should be granted. But exemptions have the potential to detract from the operation of a competitive market by introducing an element of protection.
In exemption applications by businesses, the operator carries the onus of demonstrating that ordinary commercial means are not reasonably available for achieving the legitimate purposes of the business. The tribunal will not critically analyse a proposal in minute detail to see whether some alternative means might possibly limit human rights less. But it must be satisfied the proposal is needed and, if so, fits into a range of reasonable and proportionate responses to achieve the legitimate business purpose. In this context, the availability of the usual means of commerce to achieve that purpose is an important consideration.
The Lifestyle group have failed to discharge that onus in the present case. This is not just a result of the general lack of substantiation to which I have already referred. It seems to be a result of the group's preference for implementing its business model through the exemption process. On the evidence, the Lifestyle group carefully markets and manages its villages. The values of the business include respect and concern for its residents. These are important, necessary and perhaps sufficient bases for protecting the integrity of the accommodation provided. I am far from persuaded that, in addition, the provision of safe, secure and quiet accommodation in the group's villages for people in the older age group must be supported with an exemption which excludes people who are younger than the target age.
In a case like the present, the issue is not just whether an exemption is commercially necessary, but whether it is reasonably proportionate in scope and extent. Here the exemption sought is to exclude all persons not aged more than 50 years. The premise is that all such younger people would exhibit the wrong kind of behaviour and not otherwise be suitable for living in the village communities. There has been no attempt to aim the rule more narrowly at the relevant behavioural or suitability attributes, rather than at all people not aged 50 years as a class.
If these communities were established without an exemption, they would very likely be attractive to older people, especially early retirees. The accommodation is inherently unsuited to younger people, especially families with children. The community would take its character from the great majority of its members, and have that likely composition. It has not been made clear to me why having some younger people would so change or diminish the character of the community that it is necessary to exclude them totally by exemption.
The minimum impairment principle in s 7(2)(e) of the Charter is intended to encourage, if not to require, limitations on human rights to be as little as reasonably possible. That is because of the importance of human rights and of people being able to enjoy human rights to their full extent. Exemption applications must be examined against this human rights criterion.
Reducing the admission age to 50 years would reduce the discriminatory scope of the admission exclusion, which is consistent with the minimum impairment principle. But doing so only highlights the question why the group aged 45-50 years (or less) should be excluded when the group aged 50-55 years would be included in the admission criteria. It is hard to escape the conclusion that the premise of the admission principle is commercial. The rule coming from the principle seems to be unstable and liable to change as commercial circumstances change. That is not a proper foundation for limiting human rights, especially the equality rights.
In my view, on the evidence presented in this case, the Lifestyle group can pursue its legitimate commercial purpose of providing safe, secure and quiet accommodation for older residents without the exemption it seeks. Having an exemption in favour of excluding all people not aged over 50 years is a disproportionate means of achieving its legitimate business purposes.
Stepping back and looking at the matter as a whole, I accept the importance of providing accommodation options for older people. But I am not persuaded by the case presented that this has to be done at the expense of the equality rights of people of a lesser age, particularly as this is not a remedial measure targeted at people disadvantaged by discrimination.
In conclusion, the exemption sought by the Lifestyle group would, if granted, permit it to engage in age discrimination against people not aged over 50 years. The limitations on the human rights to equality and non-discrimination which the tribunal would be sanctioning are not demonstrably justified in a free and democratic society. It would, therefore, not be compatible with human rights for the tribunal to grant the exemption. On that ground, the application must be refused. Under s 38(1) of the Charter, it would be unlawful to grant it.

Lifestyle Communities Ltd is in the business of providing safe, secure and quiet accommodation in gated residential communities to people in the older age group. It has applied to the tribunal for an exemption under s 83(1) of Equal Opportunity Act allowing it, and its subsidiaries, to exclude people who are not aged over 50 years. The Lifestyle group already has an exemption in respect of one village that excludes people not aged over 55 years. It wishes to extend that exemption to five other locations, and more which are planned, but with the reduced admission age.
When a person obtains an exemption, they can engage in activity which would otherwise constitute prohibited discrimination. Following the enactment of the Charter of Human Rights and Responsibilities Act 2006, the discretion of the tribunal to grant an exemption must be exercised compatibly with human rights. This requires the exemption to be either a measure for assisting people disadvantaged by discrimination (s 8(4)) or for activities which limit human rights reasonably and no more than is demonstrably justified in a free and democratic society (s 7(2)).
If the group obtains an exemption, the human rights which would be limited are the equality rights in s 8(3) of all Victorians not aged over 50 years. Under s 8(3), "every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination."
Without an exemption, excluding younger people would constitute age discrimination contrary to the Equal Opportunity Act.
I have decided the exemption sought by the group is not for the purpose of a measure within s 8(4). Under the Charter, the applicant for exemption must establish the purpose by positive proof. The case advanced by the group in this respect (and others) is deficient and lacks substantiation. Moreover, for a measure to come within s 8(4), it must be remedial in the specified respect - assisting people disadvantaged by discrimination. The business of the group is not directed to such people but (as proposed) to everybody aged over 50 years.
On the evidence presented in this case, the Lifestyle group has not established that its discriminatory activities would be justified. The admission rule would limit the equality rights of all persons not aged over 50 years. Excluding everybody younger is based on the stereotypical assumption that they would not behave properly or would be otherwise unsuitable for residence in the villages. The group is entitled to confine the village to those who are well behaved and suitable, but excluding everybody aged not over 50 years is a disproportionately harsh rule. It has not been shown why a less restrictive admission rule is not reasonably feasible.
In cases where exemptions are sought for commercial activities and s 8(4) doesn't apply, the operator must establish that the legitimate purposes of the business cannot be reasonably achieved by the usual lawful methods. In a market economy based on the principles of competition, that is the starting point. Here the Lifestyle group has failed to establish why it cannot use the ordinary ways and means of commerce to achieve its business objectives without an exemption.
The application for the exemption is therefore refused.

[1] Victoria, Parliamentary Debates, Legislative Assembly, 11 November 1976, 4077 (Dick Hamer).

[3] See the definition of "status" in s 4(1).

[4] Victoria, Parliamentary Debates, Legislative Assembly, 31 May 1983, 4720 (John Cain).

[6] See the list of attributes in s 6 of the Equal Opportunity Act 1995.

[7] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1249 (Jan Wade).

[8] Victoria, Parliamentary Debates, Legislative Assembly, 11 November 1976, 4080 (Dick Hamer).

[9] Victoria, Parliamentary Debates, Legislative Assembly, 31 May 1983, 4721 (John Cain).

[10] Explanatory Memorandum, Equal Opportunity Bill 1995 (Vic), 9.

[12] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1249 (Jan Wade).

[13] Division 1 of Part 3.

[14] Division 3 of Part 3.

[15] Division 4 of Part 3.

[16] Division 5 of Part 3.

[17] Division 6 of Part 3.

[18] Division 7 of Part 3.

[19] Division 8 of part 3.

[34] See generally Kracke v Mental Health Review Board [2009] VCAT 646, [258].

[36] [2008] VSC 346, [119]-[127].

[39] See the authorities referred to in Kracke v Mental Health Review Board [2009] VCAT 646, [287].

[41] Clause 24(1) of Part 7 of schedule 1 of the Victorian Civil and Administrative Act 1998.

[43] BAE Systems Australia Ltd [2008] VCAT 1799, [14] and [19].

[44] See the authorities in Kracke v Mental Health Review Board [2009] VCAT 646, [285].

[47] Cf Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

[48] [1996] EOC 92-782 (McKenzie P, Morfuni and Sadler Members).

[52] See eg Mount Isa Mines Ltd [2001] QADT 16.

[80] ADI Ltd v Commissioner for Equal Opportunity [2005] WASAT 259, [103], applying Re Jupiter Holdings Pty Ltd v Commissioner for Equal Opportunity [2005] WASAT 259.

[88] Boeing Australia Holdings Pty Ltd [2007] VCAT 532, [35].

[89] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287.

[92] See Olympic Roads and Transport Authority [2000] VCAT 1635; ADI Limited [2004] VCAT 1963.

[110] BAE Systems Australia Ltd [2008] SA EOT 1, [48].

[111] Notably, White J cited with approval the decision of Preuss SM in Firbank Anglican School v Hunt [1999] VCAT 1354 which applied the principle: [2007] SASC 308, [32].

[122] Ibid [39]-[45]. McKenzie DP did not advert to the legality requirement in s 7(2), but the exemption she granted in form and terms plainly satisfied that requirement.

[134] [1989] 1 SCR 1038; applied Societe des Acadiens et Acadiennes du Nouveau-Brunswick Inc v Canada [2008] SCC 15, [20].

[136] See Hein v Director (CFCF) & Carrol [2006] BCSC 818, [32] where Chamberlent J held it was not the constitutionality of the provision conferring a "broad discretion" that had to be examined. Applying Slaight, the provision had to be interpreted as only authorising a decision consistent with the Charter. Therefore the court was "dealing with the decision ... and not the statute itself": ibid [33].

[137] Kracke v Mental Health Review Board [2009] VCAT 646, [214]-[216]; on s 30 of the Human Rights Act 2004 (ACT), cf Raytheon Australia Pty Ltd v ACT Human Rights Commission [2008] ACTAAT 19, [78]; Andrew Carey v Alcock [2009] ACTCA 1, [108]; R v Fearnside [2009] ACTCA 3, [89].

[140] Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, 572 per Lord Nicholls.

[143] Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, 303 per Lord Bingham.

[145] [2003] UKHL 40; [2004] 1 AC 816, 842. See generally Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557.

[146] HKSAR v Wai and Man [2006] HKCFA 84, [65] per Sir Anthony Mason NPJ.

[155] [2008] ACTAAT 19, [79]-[80]. Leave to appeal was refused by Master Harper: ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55.

[157] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1289 (Rob Hulls).

[161] Manfred Nowak, United Nations Covenant on Civil and Political Rights: CCPR Commentary

[162] South West Africa Cases (Second Phase) [1966] ICJR 6, 304.

[163] An International Bill of the Rights of Man (1945) 115; cited A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, [46] per Lord Bingham; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 128 per Brennan J; South West Africa Cases (Second Phase) [1966] ICJR 6, 304 per Judge Tanaka.

[164] Jeffrey Jowell, "Equality as a Constitutional Principle" (1994) 7 CLP 1, 17.

[168] South West Africa Cases (Second Phase) [1966] ICJR 6, 305.

[169] Warwick McKean, Equality and Discrimination under International Law (1983) 288.

[170] Explanatory Memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic) 2830-1.

[171] Explanatory Memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic) 2831.

[172] On the appreciable scope of s 32(2), see Kracke v Mental Health Review Board [2009] VCAT 646, [201]-[202].

[173] Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) [10.10].

[174] "Equality in Human Rights Law with Particular Reference to Article 26 of the International Covenant on Civil and Political Rights", in Manfred Nowak, Dorothea Steurer and Hannes Tretter (eds), Progress in the Spirit of Human Rights (1988) 51.

[178] The notes of the definition of "discrimination" in s 3(1) of the Charter lists some of those attributes. As the explanatory memorandum to the Charter states, that list is not exhaustive and it is necessary to look at the entire list in s 6 of the Equal Opportunity Act: Explanatory Memorandum, Charter of Human and Responsibilities Act 2006 (Vic) 2831.

[179] United Nations Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, 2005).

[184] Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) [23.105].

[185] Manfred Nowak, United Nations Covenant on Civil and Political Rights: CCPR Commentary

[186] Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) [23.12].

[187] Warwick McKean, Equality and Discrimination under International Law (1983) 139.

[188] See further, Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) [23.68].

[189] The authors distinguish between "affirmative" and "positive" action. The former discriminates in favour of one group and against another; the latter discriminates in favour of one group without doing so against another: Ibid.

[190] Wojciech Sadurski, "Equality Before the Law: A Conceptual Analysis" (1986) 60 ALJ 131.

[191] Manfred Nowak, United Nations Covenant on Civil and Political Rights: CCPR Commentary

[195] [2009] VCAT 646, [250] and [253].

[196] General Comment 18, 10 November 1989.

[204] Communication no 172/1984, CCPR, 29th sess, UN Doc, CCPR/C/29/D/172/1984 (1987).

[208] Communication no 694/1966, CCPR, 67th sess, UN Doc, CCPR/C/67/D/694/1996 (1999).

[211] Communication no 819/1998, CCPR, 71st sess, UN Doc, CCPR/C/71/D/819/1998 (2001).

[213] Communication no 855/1999, CCPR, 72nd sess, UN Doc, CCPR/C/72/D/855/1999 (2001).

[215] Communication no 983/2001, CCPR, 77th sess, UN Doc, CCPR/C/77/D/983/2001 (2003).

[218] Communication no 854/1999, CCPR, 75th sess, UN Doc, CCPR/C/75/D/854/1999 (2002).

[220] Communication no 941/2000, CCPR, 78th sess, UN Doc, CCPR/C/78/D/941/2000 (2003).

[222] Poirrez v France (2005) 40 EHRR 2, [36].

[223] Belgian Linguistics case [1968] ECHR 3; (1979) 1 EHRR 252, 283.

[227] Ibid; applied many times, including Chassagnou v France [1999] ECHR 22; (2000) 29 EHRR 615, [91]; Poirrez v France (2005) 40 EHRR 2, [46].

[237] R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, [64] per Lord Walker.

[238] See Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26, [11] per Lord Nichols.

[239] Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, [134] per Baroness Hale.

[240] Ibid [133]-[134]; R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196, [42] per Lord Steyn.

[251] Ibid [54] and [72] per Lord Bingham; [138] per Lord Hope; [158] per Lord Scott; and [236] per Baroness Hale.

[254] Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143, 152; approved Law v Canada [1999] 1 RCS 497, [30].

[255] Lovelace v Ontario [2000] 1 SCR 950, [93].

[256] Eaton v Brant County Board of Education [1997] 1 SCR 241, [66].

[292] Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300, [42] per Goldstone J speaking for the Constitutional Court of South Africa.

[293] See, eg, Hassam v Jacobs NO [2009] ZACC 19, [23].

[294] Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300, [45].

[299] President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1, [41].

[300] Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300, [50].

[302] Ibid [47], and as provided in s 9(5) of the final Constitution.

[304] National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, [18]; Hoffmann v South African Airways [2000] ZACC 17; 2001 (1) SA 1, [20] and Hassam v Jacobs NO [2009] ZACC 19, [23], footnote 23.

[307] S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391, [88].

[312] See s 9(2). See also National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6, [62]: "Substantive equality is envisaged when section 9(2) unequivocally asserts that equality includes 'the full and equal enjoyment of all rights and freedoms.' "

[313] Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121, [32].

[325] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195, art 1(4) (entered into force 4 January 1969).

[328] An approach criticised in Wojciech Sadurski, "Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn't" [1986] SydLawRw 2; (1986) 11 Sydney L Rev 5.

[329] Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

[340] Ibid 78,984, citing Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 161-162.

[346] Ibid 774; cf Mangan v Melbourne Cricket Club [2006] VCAT 73, [48] per Morris J.

[348] [2000] FCA 654; (2000) 100 FCR 1; followed Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121, 149 per Sackville and Stone JJ, Tamberlin J agreeing.

[352] Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).

At a glance

Court

Decision date

Before

Source

Judgment (229 paragraphs)

Legislation Cited (18)

Cases Cited (8)

Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 (22 September 2009)