Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption)  VCAT 1111 (28 June 2010)
In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter.
This exemption application related to units built in Upper Ferntree Gully, which were designed specifically for use by the elderly. The units are designed for easy mobility, and located opposite an aged care facility. The owners’ corporation (body corporate) of the property currently has an exemption from the EO Act allowing it to sell its units only to people aged over 55 years. This exemption expires in February 2011.
The members of the owners’ corporation applied to have the existing exemption replaced with a new exemption enabling the owner of each unit to restrict occupation only to people aged over 55, when selling, leasing or offering to sell or lease the unit. This would allow them to sell their units to persons aged under 55, as long as the unit is occupied by an older person, and thereby more easily dispose of their units. Without an exemption, this conduct would constitute age discrimination under the EO Act.
Deputy President McKenzie followed the reasoning of Justice Bell in Re Lifestyle Communities Ltd (No3), which was an (unsuccessful) application for an exemption to provide accommodation to people only over the age of 50. Accordingly, McKenzie DP held that VCAT’s discretion to grant an exemption from the EO Act ‘must be exercised in a way compatible with human rights’.
Deputy President McKenzie identified the rights to equality and freedom of movement as being engaged by the proposed exemption, and considered whether granting the proposed exemption would be demonstrably justified under s 7(2) of the Charter. Deputy President McKenzie held as follows.
- The purpose of the proposed exemption is to ensure that homes designed for use by the elderly are used for that purpose, which in turn is likely to enable persons who are elderly and frail to live independently in the community for longer. This is an important purpose.
- The proposed exemption may disproportionately interfere with the right to equality, even though it is restricted to occupants of the units. For example, it was accepted that a person under 55 could live in the unit as long as they were living with a person over 55. However, the younger person would not be able to continue to live at the unit if the older person were admitted to a nursing home.
- There is a less restrictive means of achieving the purpose of the limitation. That is, the units could be offered for lease or sale with a statement that it was designed for and most suitable for those aged over 55. McKenzie DP granted the applicant liberty to apply for an exemption to this effect.
For the above reasons, the proposed exemption was held to be an unreasonable limitation on human rights and the application was denied.
The decision is at www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2010/1111.html.
Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre