Mangan v Melbourne Cricket Club

Mangan v Melbourne Cricket Club - [2006] VCAT 73 - VCAT 2006 case summary — Zoe

[22]

15 Shaun Mangan became a full member of the MCC on 14 December 1982. As such Shaun Mangan has been entitled to a Lady's Card and the other rights set out in Rule 5.2. Since the 2001/2002 season Shaun Mangan has exercised the right to purchase a Guest Card.

16 The complainant, Matthew Mangan, is Shaun Mangan's younger brother. He was nominated for MCC membership on 27 May 2003 and placed on the waiting list. In the normal course of events, he could be expected to wait until about 2013 before being invited to be a restricted member and until about 2020 before being invited to be a full member. Matthew Mangan enjoys attending the MCG to watch football and cricket. He has had the benefit of the use of the Guest Card purchased by his brother, but would prefer to be a member of the club in his own right.

17 On 29 July 2004 Shaun Mangan sent a letter to the Secretary of the MCC in which he expressed his intention to nominate Matthew Mangan for full membership pursuant to Rule 5.2(c). This was followed up with a further letter and with phone calls. Eventually, after a "solicitor's letter" was sent on behalf of the complainant, the solicitors acting for the club responded stating that the club did not accept Shaun Mangan's request to nominate Matthew Mangan as a full member pursuant to Rule 5.2(c). The letter also explained that Rule 5.2(c) had been originally introduced as a means of addressing the historical disadvantage against women who, prior to 1983, were unable to be MCC members.

18 Matthew Mangan subsequently made a complaint to the Equal Opportunity Commission, alleging that the club had discriminated against him contrary to the Act. On 16 February 2005, after investigating the complaint, the Commission declined to take action on the complaint. The Commission took this course on the basis that section 82(1)(a) of the Act permitted the club to maintain a discriminatory rule in favour of women. The complainant has now exercised his right to require the Commission to refer the complaint to the tribunal.

[53]

If the "designer" had been identified in section 82(1) - for example, by using the expression "nothing in Part 3 applies if a person designs special services, benefits or facilities for people with a particular attribute" - then this would suggest that the Parliament intended that a subjective, not an objective, test be applied.

36 A second striking thing about section 82(1) is that the word "designed" is used in the passive tense. I take this to indicate that the focus is to be on the thing designed, rather than the intention of the designer. The use of a passive verb, without an actor, would normally be indicative of an intention that there be an objective test.

37 Third, the word "designed" does not attach to the thing done by the person seeking to be exempted from the provisions of the Act (if it was the language would be "is designed"), but it attaches to the provision of special services, benefits or facilities (using the language "are designed"). The provision of these services, benefits or facilities might be by a person different from the person seeking exemption; indeed, there may not even be an identifiable "actor" in relation to such provision.

38 Fourth, the section does not simply refer to special services, benefits or facilities "designed" to meet special needs, but refers to special services, benefits or facilities "that are designed" to meet special needs. To my mind these words, being in the present tense, reinforce a conclusion that the focus is to be upon the design itself, rather than the intention of the designer.

39 I am conscious that the construction of section 82(1) demands a universal answer.[19] Section 82 may be relied upon, not just by responsible entities, but by genuine persons who hold views that are inconsistent with empirical evidence. If section 82 turns solely upon the subjective intent of the person providing some special measure, it is difficult to reconcile the operation of the section with section 10, which provides that motive is irrelevant in determining whether or not a person discriminates. It is true that the question of whether a person discriminates is logically separate from the question of whether the discrimination is intended to achieve a particular purpose. But a construction which makes motive relevant in one circumstance, but not the other, is uncomfortable when the two issues are so closely connected.

40 It is significant, in my opinion, that where the Act refers to what a person believes, or the beliefs of a person, it often qualifies that reference by use of the word "genuine" or "rational": see for example sections 25(1)(b) and (c) and 77. If section 82 is to turn upon a person's "genuine and not colourable intention" it is surprising that a similar approach has not been used in section 82.

41 It does not seem to me that the history of section 82 points in a different direction. In order to explain this, it is necessary to briefly refer to the relevant legislative history.

42 In 1983 a bill was introduced into the Legislative Assembly in relation to equal opportunity. Clause 39 of the bill contained a series of exemptions: the Notes on the bill explained that clause 39(f) was designed to make the following not unlawful:

[69]

Importantly the current expression of section 82, which is based upon the committee's recommendation, is not a reworked version of the previous section 39(f) but is a new provision based upon the New South Wales legislation. This being so it is difficult to draw any inference based upon the approach taken in the 1984 provision.[20]

44 Apart from the decisions cited, I am unaware of any other decisions directly on the point that are of significant assistance. In Colyer, Kenny JA referred to a Queensland case of Secrana, but I have found this of no assistance.[21]

45 It is now accepted that State legislation should be interpreted in a manner consistent with international obligations entered into by the Commonwealth of Australia[22], at least when the legislation is passed after the Commonwealth has entered the relevant international obligation.[23] Hence the provisions of the Convention on the Elimination of All Forms of Discrimination against Women ("the Convention") are clearly relevant. In this respect the law may have moved on somewhat since the decision of the Court of Appeal in Colyer. Article 4 of the Convention specifies that the adoption of "temporary special measures" aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the Convention. The Convention goes on to state that such measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. The meaning to be attributed to the word "temporary" in Article 4 of the Convention has been explained in a document supporting the Convention: where it is said that the duration of a temporary special measure should be determined by its functional result in response to a concrete problem and not by a predetermined passage of time. Hence, it is said, temporary special measures must be discontinued when their desired results have been achieved and sustained for a period of time.[24] Clearly enough both the language of Article 4 of the Convention and, if relevant, the supporting document focus on the outcomes of the measures; that is, they require an objective approach.

46 I now turn to what I would regard as the purpose of section 82 of the Act. Clearly enough the section is designed[25] to allow discrimination, which would otherwise be unlawful, in order to redress inequality. If the test imposed by section 82 is an objective test (or an objective and subjective test), then this would always be consistent with such a purpose. However the same cannot be said if the test is merely a subjective test. Section 82 does not apply merely to the State, but to every citizen. It is not difficult to imagine circumstances where a person may seek to discriminate against a disadvantaged gender or group in circumstances where the person genuinely believes that this is desirable to meet the special needs of another (advantaged) gender or group. I doubt that the section should be interpreted in a manner that makes such discrimination lawful simply because the discriminator's belief is not colourable.

47 Hence, in my opinion, section 82 of the Act ought be applied using an objective test.

48 I regret that my conclusion is inconsistent with the opinion expressed by the Court of Appeal in Colyer. Notwithstanding that I would regard the section as plainly requiring the application of an objective test, in deference to the opinion of the Court of Appeal I propose to analyse the issues on two alternate bases: first, on the basis that the relevant test is an objective test; and, second, on the basis that the relevant test is a subjective test. If the same answer emerges, then it will be unnecessary to conclusively determine this legal issue.

[70]

49 I find that prior to 2002 the rules of the club that were the equivalent of Rule 5.2(c) did provide a benefit to women that was designed to meet the special needs of women. The special needs arose as a result of two factors: first, the fact that prior to 1983 women could not be admitted to (or apply for) membership of the club; and, second, the fact that the long waiting lists existing at all relevant times meant that women, who may have wished to seek membership many years before 1983, could not obtain such membership. Because the rules which were the equivalent to the current Rule 5.2(c) were objectively designed to meet this special need, decisions to offer membership pursuant to these equivalent rules were lawful.

50 However I also find that, since 2002, Rule 5.2(c) and its immediate predecessor have sought to enable special preference to be given to selected women when, objectively, there is no longer a special need to be met. This is because, since 1983, women have been entitled to be nominated for membership in their own right and any person (male or female) whose name has been placed on the waiting list since that date has had an equal right to become a member in due course. Importantly, since 2002 no woman has been denied the opportunity to become a member because she had been (effectively) denied the opportunity to have her name placed upon the waiting list.

51 It is not to the point that women make up only 14% of full members of the club and only 30% of restricted members. In the first place, it is clear that more males are interested in becoming members than females - this is indicated by the percentage of males and females on the waiting list, which reflects a two to one disparity. Second, in time the membership of the club is likely to reflect the waiting list. This is indicated by the fact that now 30% of restricted members are female (compared with 33% of the waiting list). It is also important to remember that, given the capacity constraints of the club, a discriminatory practice in favour of a woman who has not had her name on the waiting list (in circumstances where she had the opportunity to have her name included) is likely to unfairly disadvantage those who have had their names on the waiting list for many years and would otherwise be next in turn. This potentially disadvantaged group will include females who lack contacts with older members of the club.

52 In short, the rule introduced in 1983, and confirmed in 1986, allowing a male member to nominate a woman for membership in lieu of taking up a Lady's Card, was a sound and lawful rule designed to redress historic circumstances. However the rule has now served its purpose. Women have had the right to apply for membership in their own right since 1983 and, since 2002, have been so admitted on this basis. Hence this discriminatory practice is no longer justified nor lawful.

[72]

56 Section 136 of the Act provides various options in the event that the tribunal finds a complaint proven. One option is to simply decline to take any further action in the matter. Other options are: to order that the respondent refrain from committing any further contravention of the Act in relation to the complainant; to order that the respondent pay compensation to the complainant; and to order that the respondent do some other specified thing to redress loss suffered by the complainant. It is also be open for the tribunal to grant an injunction or make a declaration in relation to the matter.[27]

57 In view of my holdings and findings, it is appropriate that I declare that Rule 5.2(c) is unlawful to the extent that it only permits a female who is on the waiting list for membership to be nominated by a member who wishes to permanently relinquish an entitlement to purchase a lady's card or guest card. The making of such a declaration is desirable as it authoritatively resolves a key issue which was litigated in this proceeding and which I have determined. However, having regard to the status and reputation of the club, I would not regard it as necessary to grant an injunction to restrain the club from admitting females to membership pursuant to Rule 5.2(c) whilst that rule is in a discriminatory form.

58 It will be a matter for the club to decide whether to amend Rule 5.2(c), so as to permit any person (male or female) to be nominated for membership in lieu of an entitlement to a Lady's Card or Guest Card, or to simply repeal the rule. If the club chooses the first option the complainant may well be a beneficiary of such a rule change. However if the club decides to simply repeal Rule 5.2(c), on the basis that is has served its purpose, then the complainant will need to wait his turn, along with all other male and female applicants for membership. Because the choice is a matter for the club, not the tribunal, I do not regard it as appropriate to grant an injunction requiring the club to admit the complainant to membership pursuant to Rule 5.2(c). To do so would be to allow an outmoded rule to be used for a purpose which was never contemplated.

59 For the same reasons, I also regard it as inappropriate to make an order that the respondent pay compensation to the complainant for loss suffered in consequence of the contravention of the Act.

60 However the complainant has performed a positive role in publicly raising the current legitimacy of a rule which effectively allows a few fortunate females to jump the waiting queue. In doing so he has incurred legal costs. Hence there is a legitimate argument that he should receive compensation for such costs. But if such compensation is appropriate it is better dealt with by an order pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 than by an order pursuant to section 136 of the Equal Opportunity Act 1995. To facilitate consideration of the issue of costs I will make appropriate directions.

At a glance

Court

Decision date

Before

Source

Judgment (95 paragraphs)

Mangan v Melbourne Cricket Club (Anti Discrimination) [2006] VCAT 73 (8 February 2006)

Parties

Cases Cited (7)