[2006] VCAT 73

The complaint made by Matthew Mangan against the Melbourne Cricket Club having been found proven, I make the following orders and directions:

1 I declare that rule 5.2(c) of the rules of the Melbourne Cricket Club is unlawful to the extent that it only permits a female to be nominated for membership pursuant to that sub-clause.

2 I direct that, in the absence of agreement on costs, the complainant must file with the tribunal, and serve on the respondent, any written submission it wishes to make concerning the costs of the proceeding by 20 February 2006; and the respondent must file with the tribunal, and serve on the complainant, any response by 4 March 2006.

3 Otherwise I decline to take any further action in the matter.

Ms Debra Mortimer SC and Ms Jennifer Firkin of counsel instructed by Blake Dawson Waldron

1 Two key objectives of the Equal Opportunity Act 1995 ("the Act") are to promote recognition and acceptance of everyone's right to equality of opportunity and to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.[1] One of the attributes on the basis of which discrimination is prohibited is sex.[2] The Act specifically provides that a club must not discriminate against a person who applies for membership of the club in the arrangements made for deciding who should be offered membership.[3] Standing alone these provisions mean that a club must not maintain rules that give preference to men over women, or women over men, in deciding who should be offered membership. But there is another provision of the Act[4] which overrides these provisions in certain circumstances - loosely described as circumstances where positive discrimination is appropriate. This proceeding requires the tribunal to consider the scope and nature of this overriding provision in the context of a complaint by a man that he has been discriminated against by a club because the club maintains rules which favour women.

2 The Melbourne Cricket Club ("the MCC" or "the club") is probably Victoria's leading and most popular club. Membership of the club is prized, because it entitles a person to attend events held at the Melbourne Cricket Ground ("the MCG"), including international cricket matches and Australian Rules football matches.

3 The MCC was established as a voluntary association in 1838. It is now an incorporated body under section 3 of the Melbourne Cricket Club Act 1974. The primary purposes of the club are to manage the Melbourne Cricket Ground and to provide services and facilities to members. The MCC occupies Crown land under section 8 of the Melbourne Cricket Ground Act 1933 and has been appointed as the ground manager of the MCG pursuant to this Act.

4 Because the Melbourne Cricket Ground has restricted capacity, there is a limit to the number of members who may be admitted to the MCC. For many years the number of persons wishing to become members has exceeded what has been regarded as the appropriate number of members, with the result that there have been large waiting lists. This has meant that a person has usually had to wait between 10 and 20 years before being admitted to membership, or some category of membership.

5 Between 1838 and 1983 only males were eligible to become members of the club. Until 1936 male members were issued with two "Lady's Cards". These cards could be used by a woman or a child to access the club's facilities, including on days when football or cricket matches were being played. The rules of the club were changed in 1936 such that male members, who were first admitted after 1936, were entitled to only one Lady's Card. Male members admitted before 1936 remained entitled to two Lady's Cards.

6 In 1983 pressure was placed upon the club by the State Government to cease the practice of only admitting males. As a result, the MCC Committee drafted amendments to the rules so as to allow females to become members. After initial resistance, on 24 June 1983 a motion to amend the rules was passed by a majority of members by ballot. These rule changes, which took effect in 1984, did not merely delete the requirement that an applicant for membership must be male. At the time the size of the waiting list meant that a person would need to wait about 20 years before being admitted to full membership. Hence, a mere change to the eligibility rule, would not actually result in females becoming full members for a lengthy period following the rule change. Thus a new class of membership was also introduced, namely "Provisional Member". A rule was inserted allowing existing (male) full members to nominate a female person for provisional membership in exchange for the male member relinquishing his right to a Lady's Card. Provisional Members were not given the same entitlement as full members: in particular they had no entitlement to vote at MCC meetings.

7 In 1986, in recognition of the club's obligations under the Equal Opportunity Act 1984 and the Sex Discrimination Act 1984 (Cth), the committee of the club drafted further changes to the rules regarding female membership. On 19 November 1986 these amendments were passed at a special general meeting of the club. In summary, the new rules gave existing (male) full members the option of purchasing a Guest Card (to be used by males or females of any age), or purchasing a Lady's Card, or relinquishing the right to purchase a Guest Card or Lady's Card and in lieu of this nominating a female candidate for full membership. These rule changes also abolished the right of new full members to purchase either a Guest Card or a Lady's Card. The rules abolished the class of Provisional Member; and these members were upgraded to full members (without the right to purchase a Guest Card or Lady's Card). Another rule change made at this time was to increase the maximum number of full members from 15,000 to 25,000. Later in this decision I will explain the impact of these changes.

8 On 21 April 2004 the club approved a complete rewrite of the rules. This rewrite was considered necessary to consolidate various amendments to the rules that had been made since 1984 and to introduce a new "intermediate" class of membership for students. The rules, which were adopted on 21 April 2004, include similar rules to those which had been adopted in 1986. In particular, the rules contain the following rule in relation to membership:

(a) A Member who has been a Full Member prior to 19 November 1986 is entitled to a Lady's Card in a Membership Year.

(b) A Member who is entitled to a Lady's Card in a Membership Year may:

at prices set by the Committee from time to time and notified to the Membership.

(c) As an alternative to purchasing a Lady's Card or Guest Card under either Rule 5.2(b)(i) or Rule 5.2(b)(ii), a Member may permanently relinquish the entitlement to purchase a Lady's Card or Guest Card and nominate a female who is on the Waiting List for Full Membership, Intermediate Membership or Junior Membership.

(d) A Lady's Card entitles one female or a male under 15 years of age entry to those parts of the Members' Area excluding such areas as the Committee may determine from time to time and notify to the Members, subject to payment of all Fees, Subscriptions and Levies as and when they fall due in relation to that Lady's Card.

(e) A Guest Card entitles one person entry to those parts of the Members' Area excluding such areas as the Committee may determine from time to time and notify to the Members.

This case concerns Rule 5.2(c) and focuses upon the word "female" in that rule.

9 Table 1 shows the impact of the rule changes made by the club. The table sets out the total number of nominations, full members and restricted members, by gender, for each year between 1983 and 2004.[5]

10 All women who obtained full membership between 1984 and 2001 did so under Rule 5.2(c), or its predecessor. Since 2001, the number of women who became full members under Rule 5.2(c), or its predecessor, has been about 200 per year. The first round of female candidates (who had joined the waiting list in 1983) to be offered restricted membership in their own right was in 1992. The first round of female candidates (who had joined the waiting list in 1983) to be elected as full members in their own right (as distinct from via Rule 5.2(c)) was in October 2002.

11 Three important observations can be made. First, the use of Rule 5.2(c), has been relatively stable, or even declining, following its initial popularity. Second, most women elected as full members since 2001 have not used the rule. Third, since 1992 a substantial number of women have become restricted members; and none of these have used the rule.

12 As of 3 August 2005, 7,731 members retained the option to purchase a Guest Card or Lady's Card. Approximately 3,000 of these members exercised the option to purchase a Lady's Card; and about 300 members exercised the option to purchase a Guest Card. Both the number, and the proportion, of members who have the right to purchase a Lady's Card or a Guest Card (and hence have the right to utilise Rule 5.2(c)) is dwindling by reason of the ageing process.

13 It is clear enough that Rule 5.2(c) and its predecessor was not designed to be a shortcut for men to obtain membership, whether restricted membership or full membership. Rather it was directed to address the historic exclusion of women from the club. In particular, a woman could not be placed on the waiting list prior to 1983.

14 Table 2 sets out the current membership of the club (as of 3 August 2005).

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.

19 The complainant's primary submission was that the club had directly discriminated against him in the sense dealt with in section 8 of the Act. Direct discrimination occurs if a person treats someone with an attribute (for example, because they are male) less favourably than the person treats, or would treat, someone with a different attribute (for example, being female) in the same or similar circumstances. In short, the complainant says that if he had been a woman the club would have admitted him to full membership pursuant to Rule 5.2(c); but, because he was a man, it did not.

20 The MCC formally argued that there had been no direct discrimination. It said that Rule 5.2(c) did not contravene any provision of Part 3 of the Act, and in particular section 59. In this context it said that the proper comparator to a female, in the context of Rule 5.2(c) was not a male, but applicants on the MCC waiting list. I cannot accept this. The proper comparator to a provision requiring a person to be female, to take advantage of a certain rule, is a person who is not female. Leaving to one side the complications that may result if one had to consider the position of transsexuals, that comparator is a person who is male.

21 The MCC also contended that the complainant could have applied for MCC membership at any time since his birth in 1964. I would question this: persons must be nominated for membership, they do not apply for membership. In any event I cannot see how this would make any difference to the question of whether the rule involves direct discrimination.

22 The complainant also said that the rule may constitute indirect discrimination under the Act. There is no need for me to address this matter, as I find that Rule 5.2(c) directly discriminates against males.

23 The scheme of the Act is to prohibit direct and indirect discrimination in a wide range of fields on the basis of nominated attributes. One of the areas of activity covered by the Act concerns discrimination against applicants for membership of clubs, including in relation to the arrangements made for deciding who should be offered membership. In some areas of activity there are nominated exceptions.[6] However none of these specific exemptions applies in the present case. In addition, Part 4 of the Act contains a suite of provisions which provide general exceptions to, or exemptions from, the prohibition of discrimination.[7] It is within the suite of general exceptions to, and exemptions from, the prohibition on discrimination that one finds section 82.

24 Section 82 provides:

(1) Nothing in Part 3 applies to anything done in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed -

(b) to prevent or reduce a disadvantage suffered by those people in relation to their education, accommodation, training or welfare.

(2) Without limiting the generality of sub-section (1) -

(a) a person may grant a woman any right, privilege or benefit in relation to pregnancy or childbirth;

(b) a person may provide, or restrict the offering of, holiday tours to people of a particular age or age group.

This case is essentially concerned with sub-section (1).

25 In order to deal with the arguments of the parties, it is necessary to ascertain the meaning of section 82 of the Act. In particular, the parties were in dispute as to whether the section should be applied both objectively and subjectively or just by reference to the subjective thoughts or opinions of the club.

26 In 1996 the Anti-Discrimination Tribunal considered a request by Walter Colyer that the tribunal exercise its powers under section 158(1) of the Act. That section enabled the tribunal to refer a matter to the Commission for investigation if it became aware of circumstances where a contravention of certain parts of the Act had occurred. The case concerned possible discrimination by the State of Victoria against intellectually disabled persons, whom the State proposed to house at a certain complex. In the course of dealing with the matter the tribunal analysed section 82 of the Act and expressed the view that the test of whether special services are "designed" for the objectives mentioned in section 82(1)(a) and (b) is "both objective and subjective". It added:

In determining the objectives for which the special service was designed, it is permissible to take into account the purpose of the service provider, any statutory provisions governing the design of the service, and whether the service is in fact adapted to or capable of achieving the specified objective.[8]

27 The decision of the Anti-Discrimination Tribunal was overturned by a single judge of the Supreme Court of Victoria. A further appeal was then brought before the Court of Appeal.[9] The judgment of the Court was given by Kenny JA, who identified four issues raised on the appeal. The first issue was whether the State of Victoria could appeal to the Supreme Court against a decision of the tribunal made under section 156 of the Act. Kenny J held that the State was not so entitled because a decision under section 156 was not a decision made in any "proceedings"; with the result that the appeal to the single judge was incompetent. That is the ratio decidendi of the case. However, Kenny JA dealt with three other questions which had been argued, as both parties had pressed the Court to answer the questions even if it was not necessary to do so. Although the Court's views on these other issues are obiter dicta[10], they are obviously highly persuasive and I should be most reluctant to depart from them.

28 One of the questions dealt with by Kenny JA was the meaning that should be ascribed to the word "designed" in section 82(1) of the Act. She thought that the natural reading of section 82(1), which was supported by statutory history and statutory context, was "the provision of services to people with a particular attribute that are intended or planned by the provider of the services to meet the special needs of those people" [my emphasis]. In other words, she thought the test was a subjective, not an objective (or an objective and subjective) test. Kenny JA said:

Parliament would seem to have taken the view, in section 82(1) that if the service provider genuinely intends the relevant services to meet the ends referred to in paragraphs (a) and (b) of section 82(1), it is for the service provider to determine whether the services are suitable or appropriate to satisfy those ends and not for an administrative body having a different focus or for a court lacking relevant expertise.[11]

If, as I conclude, the word "designed" refers in section 82(1) to the plan or intention of the service provider, section 82(1) requires the relevant decision maker to be satisfied that the genuine and not colourable intention of the service provider in providing the relevant special services was to satisfy the ends described in paras (a) or (b) of section 82(1). The intention of the service provider will be a matter to be established by reference to all the relevant circumstances, including direct evidence of the service provider's intention as well as such inferences as may be drawn from the nature of the services to be provided, the identity of the recipients of the service and, possibly, any relevant obligations cast by law on the service provider in relation to the provision of the services. If upon consideration of all relevant matters, the decision maker is satisfied that the genuine and not colourable intention of the service provider is to provide the special services for the ends identified in paras (a) or (b) of section 82(1), then it follows that the services are "designed" to meet those ends.[12]

29 The decision of the Court of Appeal in Colyer was considered by the Full Court of the Federal Court of Australia in Richardson v ACT Health & Community Care Service[13], where the court considered a similar provision in ACT legislation. However the words then under consideration revolved around the purpose of the act in question, which is a different issue to that involved in the Victorian legislation. Hence I cannot derive any real assistance from this case.

30 The decision of Crennan J in Jacomb v Australian Municipal Administrative Clerical and Services Union[14] adopted a different approach in respect of a similar provision under the Commonwealth Sex Discrimination Act 1984 ("the SDA"). The case concerned a provision in the rules of a trade union. Like the present case, the applicant was a man who challenged a rule that favoured women. The union relied upon section 7D of the Sex Discrimination Act, which was in the following terms:

(1) A person may take special measures for the purpose of achieving substantive equality between:

(c) women who are pregnant and people who are not pregnant; or

(d) women who are potentially pregnant and people who are not potentially pregnant.

(2) A person does not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by subsection (1).

(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

31 Crennan J held[15] that, in the absence of any expression to the contrary, section 7D of the SDA should be construed in conformity with the Convention on the Elimination of All Forms of Discrimination against Women.[16] Her Honour also held that in the context of section 7D a "special measure" is one which has as at least one of its purposes achieving genuine equality between men and women. She said:

The phrase "special measure" is wide enough to include, what is known as, affirmative action. A special measure may on the face of it be discriminatory but to the extent that it has, as one of its purposes, overcoming discrimination, it is to be characterised as non-discriminatory.[17]

32 In relation to the application of section 7D Crennan J said:

As amicus curiae the Commissioner's counsel submitted that any application of s 7D requires an assessment of whether the measure in question was taken for the purpose of achieving substantive equality noting that such purpose was not required to be the only or even primary purpose (s 7D(3)). This test was said to be a subjective test and neither party demurred from this analysis.

Next it was submitted on behalf of the Commissioner, that the Court needs to objectively test first whether the entity propounding a special measure acted reasonably in assessing the need for the special measure, and secondly the capacity of the special measure to achieve the purpose of substantive equality. It was also submitted that appropriate factors to be considered included the field of activity in which the special measure was taken, the correct comparator in relation to substantive inequality, the causes of inequality, the proportionality of the special measure and whether the special measure was still required. Again, neither party demurred from these propositions.[18]

I take Crennan J to have adopted the propositions advanced by counsel for the Commissioner.

33 I was provided with a copy of the Commissioner's submission to the Federal Court in the Jacomb case. The MCC submitted that the basis for the Commissioner's submission, to the effect that there was an objective test as well as a subjective test, was the incorporation of the convention into the SDA and the need to be consistent with previous decisions in relation to sections 8(1) and 33 of the SDA. But, having read the relevant part of the Commissioner's submission to the Federal Court, I am not persuaded that these factors provide the basis for the submission that an objective test was required. Rather these matters were addressed in the context of the content of the objective test. It seems to me that the reason why the Commissioner submitted that there was an objective test, and the reason why it was accepted by the Court, was the expression, and purpose, of section 7D.

34 Having regard to the claimant's submissions, I think I should set down my own views as to the construction of section 82(1) of the Act. I leave to one side, for the moment, the question of whether I should act on such views, in the event that they differ from that of the Court of Appeal in Colyer.

35 In my opinion, the most striking thing about section 82(1) is that no actor is identified. In ordinary grammar, where there is a desire to focus upon the subjective intent of a person, the provision is usually framed by referring to the actor. A good example is section 25(1)(b) of the Act which specifies, as an element in an exception concerned with the care of children that:

The employer genuinely believes that the discrimination is necessary to protect the physical, psychological or emotional well being of the children. [My emphasis.]

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:

(f) The exclusion of any person from a genuine programme which has its aim the prevention or reduction of disadvantage suffered by a particular category of persons.

In presenting the bill to the Parliament the Attorney-General, Mr John Cain, said:

Excluded from the ambit of the Act are genuine positive discrimination or affirmative action programmes. If a plan, programme or arrangement is for the benefit of previously disadvantaged classes of persons, designed to achieve more equality of opportunity, the discrimination provisions are of no application. This exception is aimed at bona fide programmes, which have as their objective the prevention or reduction of disadvantage.

The provision which became part of the Equal Opportunity Act 1984, as section 39(f) was to the following effect:

(f) the exclusion of any person from a bona fide programme, plan or arrangement designed to prevent or reduce disadvantage suffered by a particular class of disadvantaged persons.

43 The Equal Opportunity Act 1984 was reviewed by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament. The committee handed down its final report in November 1993. It specifically addressed section 39(f) of the 1984 Act under the heading "Special Measures Exemption". The committee commented:

The aim of such special measures is to alleviate deeply embedded discrimination by providing services which focus exclusively on the special needs of disadvantaged groups.

For example, a health service exclusively for physically disabled people recognises not only that disabled people are prone to health problems different to those suffered by the able bodied, but also that mainstream health centres usually concentrate on able bodied health problems to the detriment of physically disabled people.

Several submissions raised the problem that the current wording of section 39(f) led to anomalous results. For example, the Villamanta Legal Service stated that a narrow reading of the phrase "plan, programme or arrangement" had resulted in access to services or facilities being denied to people who possess two characteristics which are grounds of discrimination, because the service or facility was designed to ameliorate discrimination on only one ground.

After considering an example the committee observed that such a result serves to devalue the aims of the legislation. The committee continued:

The New South Wales anti-discrimination legislation has a provision which states that the Act does not apply to

anything done in affording persons of a particular race access to facilities or services to meet special needs ... in relation to their education, training or welfare or any ancillary benefits.

The committee believes that a modified version of this section, when applied to all the prohibited grounds of discrimination, will avoid the anomalous results raised by these submissions.

The committee recommends that section 39(f) be repealed and be replaced by a section to the effect that

This Act does not apply to anything done in affording persons of a particular status or private life access to facilities or services designed to meet special needs and/or to prevent or reduce disadvantage in relation to their education, accommodation, training or welfare or any ancillary benefits.

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.

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.

53 I now turn to consider whether the refusal of the complainant's nomination was the result of applying a rule which was subjectively designed by the club to provide a special benefit to women to meet the special needs of women. If the tribunal was concerned with the rules made in 1983 or 1986, it is clearly apparent that the subjective intention of the club was to meet the special needs of women. But this case is not directly concerned with those rules but with Rule 5.2(c), which was a rule made in 2004. Hence, if a subjective approach is required to be adopted, it is the subjective intention of the club at that point which is relevant.

54 I find that when the club remade its rules in 2004 its focus was on other changes introduced (such as the new class of intermediate members) and that its subjective intention in relation to clause 5.2(c) was simply to continue with previous practice. In other words, in 2004 the club did not specifically consider whether or not females continued to have a special need to be provided with a special benefit. If circumstances had not changed from those that existed in 1983 or 1986 it may have been possible to infer that the same subjective intention would have continued to apply. But, as I have explained, circumstances had changed: women who had been on the waiting list were now being admitted as full members of the club in their own right. Hence I cannot make such an inference.

55 In the absence of evidence that would entitle me to find that the club had a subjective intention in 2004 to approve Rule 5.2(c) in order to meet the special needs of females, I must conclude that the exception in section 82 of the Act does not apply in the circumstances of this case, as the onus is on the club to show that the exception applies.[26]

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.

[5] There was evidence about the 2005 year. However, because that year was not complete at the time of the hearing, these numbers have been excluded from the table to avoid creating a misleading impression.

[6] For example, section 63 provides an exception which enables a club to limit a member's access to a benefit on the basis of the member's sex if it is not practicable for men and women to enjoy the benefit at the same time and, in general terms, both men and women have a reasonably equivalent opportunity to enjoy the benefit.

[7] One such general exception relates to private clubs, but the MCC is not a private club within the meaning of that definition.

[8] [1996] VADT 11.

[9] Colyer v State of Victoria [1998] 3 VR 759.

[10] This was acknowledged by the MCC. For a discussion of some of the issues involved in the doctrine of stare decisis, see Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1, at 11-15, per Mason J. Also compare the radical views of Finkelstein J in Bristol-Myers Squibb Co v FH Faulding & Co Ltd [2000] FCA 316; (2000) 97 FCR 524, at 570.

[11] [1998] 3 VR 759 at 772.

[12] [1998] 3 VR 759 at 744.

[13] [2000] FCA 654.

[14] [2004] FCA 1250; (2004) 140 FCR 149.

[15] [2004] FCA 1250; (2004) 140 FCR 149 at [41].

[16] 1979, done at New York, 18 December 1979 (entered into force 3 September 1981).

[17] [2004] FCA 1250; (2004) 140 FCR 149 at [44].

[18] [2004] FCA 1250; (2004) 140 FCR 149 at [61] and [62].

[19] See Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at 611-2 (per Brennan J).

[20] Compare the analysis of Kenny JA in Colyer v State of Victoria [1998] 3 VR 759, at 770-771.

[21] The correct title of this decision of the Queensland Anti-Discrimination Tribunal is Secranna Pty Ltd v Beaudesert Shire Council [1995] QADT 8. The case deals with the word "designed" in section 104 of the Queensland Anti-Discrimination Act 1991. However the context in which the word is used is quite different than the context in which the word is used in section 82 of the Victorian Act. Consequently I do not regard the case of any assistance. In any event, the reasoning is not persuasive; I prefer the reasoning of the Administrative Appeals Tribunal (chaired by Deputy President Nicholson, now Nicholson J of the Federal Court of Australia) in Fibre Hulls Pty Ltd v Collector of Customs (1987) 12 ALD 75, albeit that this case is in a different context.

[22] Polites and Kandiliotes v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68 (Latham CJ), 77 (Dixon J) and 80 (Williams J); Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Dean J); Walsh v Department of Social Security [1996] SASC 5795; (1996) 67 SASR 143 at 147; R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at 27, 37 and 42; Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184; and Russell v Commissioner of Police, New South Wales Police Service & Ors [2001] NSWADT 32. See also the speech of the Honourable Justice Chris Maxwell, President, Court of Appeal, Supreme Court of Victoria, "Human Rights: a View from the Bench", 26 October 2005 (available on the Supreme Court website).

[23] Coleman v Power [2004] HCA 39, 209 ALR 182 at 189 (Gleeson CJ) and 241(Kirby J);

[24] See General Recommendation No 25 on Article 4, paragraph 1 of the Convention on the Elimination of all Forms of Discrimination Against Women, on Temporary Special Measures, paragraph 20.

[25] I apologise for any confusion by using this word.

[26] See Ellis v Mt Scopus Memorial College [1996] VADT 16; Re Hall and Victorian Amateur Football Association (1999) 15 VAR 183, at 185; and Taylor v Moorabbin Saints Junior Football League [2994] VCAT 158, at [13].

[27] See sections 123 and 124 of the Victorian Civil and Administrative Tribunal Act 1998.