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[2000] VCAT 1858
Victorian Civil and Administrative Tribunal
2000-09-30
Original judgment source is linked above.
The application is limited to the year 2000 on the basis that another and different application might be made next year depending on the situation with the new members' grandstand which is to be opened on 7 October and also depending on the demands and requirements of members at that time.
The law briefly is this. Under s.83 of the Equal Opportunity Act 1995 the Tribunal has a broad discretion in relation to the granting of exemptions. It has considered this discretion in relation to a similar but now repealed section of the Equal Opportunity Act 1984 in a case called In Re Fernwood reported in 1996 Equal Opportunity Cases at 92-782.
In that case it said that it would not consider exemption applications unnecessarily. In other words where clearly the conduct sought to be exempted was not discriminatory or where clearly it was covered by some express exception provision in the Act, then there would be no need to go on to consider the application further. If neither of these apply, the Tribunal will consider the application and look at all the circumstances put before it in the material, and in particular it will consider whether the exemption promotes one of the objectives of the Equal Opportunity Act, any aspect of the public interest that might justify the granting of the exemption, and whether the granting of the exemption would be within the spirit, although not necessarily the letter, of one of the already existing exception provisions.
I now summarise the material before me. I said what the exemption application entails. The basis of the application is that all the days of the Melbourne Cup Carnival are very crowded. They draw very large crowds of members. There is a very large number of members of the Victoria Racing Club, far more than the number of seats available can accommodate. Currently the members' grandstand seats 4300 people and the new members' grandstand which, as I have said, comes on stream in October at the time of the Melbourne Cup Carnival for the year 2000 will seat another about 6300 people.
The difficulty for members who are aged 60 and over, particularly for those who are frail, is that they may well be unable to stand for the period of time required. They also will be subject to being pushed by crowds. For them, if they are to go to the Melbourne Cup Carnival at all, it is important that they be able to reserve seating. The number of seats which they can reserve was 700 in relation to the previous exemption which the Tribunal granted on 8 September 1999. It has now been increased to 744.
The increase is relatively small and is a relatively small percentage of the total number of seats available in that stand. When the additional number of seats available in the new members' grandstand is added, the percentage, of course, becomes even smaller. There has been no opposition expressed to the current application by the members of the club, whether aged 60 and over or less. Their views have been canvassed on the matter. Their views were also canvassed after the 1999 Melbourne Cup Carnival. The views then were generally in favour of what was being done. It was felt by the members, irrespective of their age, that the club was doing the right thing in accommodating its older members and providing for them an environment which was consistent with their health and safety and would encourage them to come to the Melbourne Cup Carnival rather than perhaps stay away, particularly in view of the fact that the Melbourne Cup Carnival is one of the substantial benefits of being a member of the VRC.
As I have said, there is no opposition at this time to this application and in fact members are generally in favour of having the option to be able to reserve seats. On this basis, 900 additional reserved seats will be allowed for in the new grandstand to be built, but those will not be made available on a preferential basis to any members of particular age. They are available to members of any age to pre-reserve. It is only in the seats at the current grandstand that the 744 that will be made available on a preferential basis to those members aged 60 and over. If those seats are not taken up then the seats will be available to the general membership.
The application and the material before me states that in fact on the occasion last year all the seats were taken up by members aged 60 and over, so there is a demand and a clear demand for seats of this kind.
Turning now to the application of the Act to this material. Clearly, as I said on the last occasion, there is a possibility of discrimination here. There is a possibility of age based discrimination in access to one of the benefits provided by the club. There is a preference being provided to members aged 60 and over in respect of access to the reserved seating benefit. There are several of exceptions in the Act which deal with the giving of aged based benefits where this is reasonable and where there is a special need.
I draw particular attention to three provisions. Section 62 permits benefits in relation to membership of the club to be restricted to those of a particular age group where this is reasonable in the circumstances. Section 81 relates to the provision of age based benefits including concessions and s.82 permits special benefits to be given to those with a particular attribute to meet a special need or to reduce or address a disadvantage in various areas.
It is not clear that any of these exceptions apply with such certainty that it would not be necessary to go on to consider the exemption application. The exception in s.62 relies on reasonableness, a matter of which there would have to be a large amount of evidence before I could be satisfied that the matter was reasonable and this, after all, is not a complaint hearing where such evidence would be available. This is a hearing of an exemption application. It is not appropriate in my view to make the VRC in effect wait until a complaint is made before evidence of reasonableness can be given.
Section 81 may be limited to financial benefits only given its form, and s.82 again may be limited only to benefits of a special nature whereas it could be argued that seating is a matter of general benefit to all members irrespective of age. On this basis I go on to consider the application.
As I have said, on the facts it seems to me it should be granted. There is a strong public interest in providing an environment which will enable older VRC members to access this substantial benefit of membership and to allow them to do so in safe circumstances. It puts them on an equal footing to younger people in relation to access of a benefit and so is consistent with the objective of the Act to promote equality of opportunity.
For these reasons it seems to me the exemption should be granted. I will reduce the exemption to writing. It will not operate until it is published in the Government Gazette and we will give you a copy of the notice once it is published. I should ask you, do you want a transcript of these reasons, Ms Lloyd-Williams?
MS LLOYD-WILLIAMS: The Victoria Racing Club would like a transcript of the reasons thank you, Madam.
DEPUTY PRESIDENT: All right, we will get from you just a note of that request for the file and I will get a transcript to be made of this decision. If you can wait five minutes we will give you a signed copy of the notice that will go into the Government Gazette and it will go in next week. Thank you very much.