Victorian Civil and Administrative Tribunal|2009-05-04

The Applicant (YMCA) applies for exemption from the Equal Opportunity Act 1995 (the EO Act) to allow it to conduct women-only swimming sessions and related programs at the Ascot Vale Leisure Centre outside normal operating hours, and to have that Centre staffed by women only during those times. YMCA operates that Centre on behalf of the Moonee Valley City Council.
At the Tribunal's direction, the application was advertised at the Centre and on YMCA's website. The advertisement allowed a time for the public to make submissions on the application. No submissions have been received either by YMCA or the Tribunal.
I first say something about the law. I then consider the material before me and state my conclusions.

Section 83 of the EO Act gives a broad discretion to VCAT to grant exemptions from the provisions of the Act to people or classes of people, in respect of activities or classes of activities, or in respect of specified circumstances. The effect of s12 of the Act is to take conduct to which an exemption applies out of the prohibitions in the Act.
In cases such as Victorian Netball Association Inc[1] and , I explained that exemption applications are to be approached in this way. The EO Act does not specifically limit the discretion given to VCAT to grant or refuse to grant exemptions. The proper approach is first to ask: is there possible prohibited discrimination in the proposal? If there is, we must then weigh the interests served by the exemption against the important interests served by the prohibitions of the EO Act. Those important interests are protection from discrimination and redress for its victims. The objectives, general purpose and prohibitions of the EO Act must also be borne in mind. Those objectives include promoting acceptance and recognition of everyone's right to equality of opportunity, and also limiting discrimination as far as possible by prohibiting it on the basis of various attributes. The Act's prohibitions, though very important and broad, are not at large. They relate only to listed attributes and listed areas of activity, and the Act contains a number of express exceptions from those prohibitions. The ultimate question is: are the interests served by the exemption powerful enough to justify taking the conduct out of the prohibitions of the Act? One instance when this might happen is where the proposal aims to redress a disadvantage or discrimination suffered by people with a particular attribute. But the prohibitions in the EO Act should not be lightly overridden. A relevant matter is whether there is some less restrictive way in which the purpose of the exemption might be achieved.

I have before me the original application, and an affidavit in support by Ms Liberto, which attaches a number of reports, expressions of interest and letters of support. I heard brief oral submissions from her at the hearing.
The Ascot Vale Leisure Centre includes public swimming pool facilities, and also provides learn-to-swim programs and other programs such as water aerobics. It serves the community of Ascot Vale and the wider Moonee Valley municipal district, and also surrounding districts. It gives the population of those areas the chance for recreational swimming. It charges a very modest fee for the use of its facilities, and a concessional fee for various disadvantaged groups, and young children can use the facilities free of charge.
The municipality of Moonee Valley includes some very large public housing estates. These estates have a culturally and linguistically diverse population. One of them has approximately 1500 residents.
Of the population of Ascot Vale, about half are women. Of the population of Ascot Vale, more than 25 per cent were born overseas. A significant percentage of the total population is Muslim. Many of those born overseas come from countries in the Horn of Africa, and have arrived here as migrants or refugees.
A survey in the material before me completed in 2008 indicates that both service providers and Ascot Vale residents who participated in the survey identify a need for women-only swimming sessions. It is clear from all the material before me that Muslim women are unable, because of their cultural and religious values and beliefs, to participate in swimming sessions in mixed male/female company. For them, it is not an option to attend the Ascot Vale Leisure Centre during its public opening hours, when it is open to women and men alike. The only way to provide accessible opportunities to swim and learn to swim for these women is at times when the Centre would be open to and staffed by women only.
It is clear from the material before me that sessions of this kind would have many benefits for the women who attend them - not just for Muslim women, but for all women who attend. The sessions would provide physical exercise for these women, with consequent improvements in health and well-being. They would give the women a chance to socialise, with other women from many different backgrounds, and would provide opportunities for social connectedness, making friendships, and increasing understanding of and tolerance for others from different cultural or religious backgrounds. It would provide an opportunity for engagement (by women who are often socially isolated or do not know how to access services) with broader services, providing broader community programs. It would provide opportunities for women who, because they have been subjected to sexual abuse or violence at the hands of men, or because of self image issues or feelings of discomfort, feel unable to swim in mixed company.
The proposal may also provide employment opportunities. Currently, some women from culturally and linguistically diverse backgrounds are being trained in first aid, with a view to having the opportunity to staff women-only programs at the Ascot Vale Leisure Centre if this exemption if granted. From this employment opportunity may come other and broader employment opportunities.
The exemption does not affect the current operation of the Centre. It will continue to open to all during normal public opening hours. Those who use the Centre facilities during women-only sessions will pay the same fees as are paid by the public who attend during normal hours.
There has been a strong interest in participating in, and supporting, the exemption proposal. The YMCA has received some 100 expressions of interest from women interested in being part of the women's only program at the Centre. I also have letters of support from the Centre for Multicultural Youth, the Ascot Vale Network (a network of service providers) and the Active Young African Program. Some of these groups are also willing to contribute in time or in money to the operation of the program. As I have said, neither the Tribunal nor the YMCA has received any submissions in opposition to the proposal.

Subject to one matter which I shortly mention, I am satisfied that it should. The proposal involves possible prohibited discrimination against men. No express exception in the EO Act clearly applies. I have already mentioned the various benefits that are likely to come from the proposed program. In summary, the program aims to give opportunity for sport and recreation in the way of swimming and learn-to-swim programs to women who, for cultural or religious reasons, cannot take advantage of those opportunities in mixed gender company. In other words, it seeks to give these women the same opportunities for programs of this kind as are currently available to men and women who do not have these beliefs and who therefore are able to access programs during the Centre's public opening hours. In this sense, the exemption promotes equality of opportunity for the women to whom it is directed and, as I have found, for other women too. The aim of the proposed exemption cannot be achieved in a less restrictive way, and the proposed program was designed so as not to interfere with the public operation of the Centre.
The granting of the exemption is consistent with that objective of the EO Act which is directed to the promotion and recognition of everyone's right to equality of opportunity. It is also consistent with the purpose underlying the express exception provisions in ss80 and 82 of the EO Act. Those purposes are respectively the protection of public health, and providing services or facilities to meet the special needs of those with a particular attribute or to redress or reduce disadvantage suffered by them in specified areas of activity.
I now come to the application of the Charter of Human Rights and Responsibilities Act 2006 (the Charter). Here, I take a similar approach as that taken in the BAE case, and in Royal Victorian Bowls Association Inc[3].
Section 32 of the Charter requires that, as far as possible consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 38 of the Chartert makes it unlawful for a public authority, in making a decision, to fail to give proper consideration to a relevant human right or to act in a way incompatible with a human right. The discretion given by s83 of the EO Act must be interpreted and exercised in a human rights-compatible way. This is so whether we simply follow s32 of the Charter, or whether we assume that (at least in granting or refusing exemptions) VCAT acts as a public authority. I then ask: what human rights might be engaged? In my view, the rights which are possibly engaged are the right to enjoy human rights without discrimination, the right to equality before the law, the right to the protection of the law without discrimination, and the right to equal and effective protection against discrimination.[4]
I must then ask: would the granting of the exemption represent a reasonable limit on those rights which can be demonstrably justified in a free, democratic society based on human dignity, equality and freedom and having regard to the factors listed in s7(2) of the Charter? In my view, the proposed exemption does represent such a reasonable limit. Its aim is to redress a disadvantage currently suffered by certain women because of their religious or cultural beliefs in relation to access to recreation - a disadvantage not suffered by those without those religious or cultural beliefs. It is the lease restrictive way of redressing this disadvantage, because it does not impact of on the use of the Centre's facilities by both men and women during ordinary public opening hours, and it does not impact on the Centre financially because women who will access the facility out of hours under the exemption must also pay the same fees.
In my view, the exemption should be granted.

Human Rights and Responsibilities Act 2006

Opportunity Act 1995

YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)

YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Legislation Cited (2)

Cases Cited (1)

YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)