The Right to Equality and Non-Discrimination and Exemptions under the Equal Opportunity Act 1995 (Vic)

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)

In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act.

This decision concerned an application by the Royal Victorian Bowls Association (‘RVBA’) and the Victorian Ladies Bowling Association (‘VLBA’) for an exemption from the EO Act to allow them to conduct single sex lawn bowls competitions.

The EO Act provides a permanent exception from its operation for sporting activity in which the strength, stamina or physique of competitors is relevant.  However, in 2000 DP Coghlan held that this permanent exception does not apply to lawn bowls, which is a ‘gender neutral’ sport.  Deputy President Coghlan therefore upheld a complaint of discrimination made against the RVBA for denying a female competitor the opportunity to play in a male only competition.

Deputy President Coghlan’s decision caused concern in the Victorian lawn bowls community because of the ramifications that it has for the eligibility of Victorian players to compete at national and international levels.  As eligibility to compete at these levels is dependent on winning a Victorian state title, unification of the two Victorian single-sex competitions would significantly disadvantage Victorian players, whose chances of progressing to the next level would be significantly reduced.

As a result of this detrimental effect of banning single sex State competitions, Justice Harbison granted the exemption to the RVBA and the VLBA, but only in relation to the ‘elite pathway’ competitions that lead to the national and international competitions.  Events at a lower level were not granted an exemption, thereby encouraging mixed team play.

In arriving at this decision, Harbison J applied the exemption principles established in Fernwood Fitness Centre (1996) EOC 92-782, ‘taking into account the objectives and scheme of the [EO Act], the reasonableness of the exemption sought and its public policy objective.’  This decision and the principles it established has been particularly important to exemption applications to date, given that s 83 of the EO Act provides very little guidance as to what factors are relevant when considering an application for an exemption.

However, after considering the applications of the RVBA and the VLBA according to existing principles, Harbison J then proceeded to consider the impact of the Charter on the decision to grant an exemption under the EO Act.

Justice Harbison rejected the applicant’s submission that s 83 of the EO Act does not require reinterpretation in light of the Charter because s 83 is unambiguous.  According to Harbison J, s 32 of the Charter requires that all statutory provisions, whether they are ambiguous or clearly expressed, must be interpreted in a way that is compatible with human rights.  In any event, Harbison J did not consider s 83 of the EO Act to be clear, as it is silent as to the permissible circumstances for granting an exemption.

Justice Harbison held that a human rights compatible interpretation of s 83 obliges VCAT to consider whether an exemption is permissible according to the limitation principles contained in s7 of the Charter.  Her Honour accepted the submission of the Victorian Equal Opportunity and Human Rights Commission that ‘the test to apply when exercising [the discretion to grant an exemption] is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s 7 [of the Charter].  If that analysis identifies that a proposed exemption is not a reasonable limitation on the rights to equality then the Commission view is that is should not be granted.’

As a result, Harbison J subjected the exemption sought by the applicants to the s 7 limitation analysis contained in the Charter.  Namely, Harbison J considered whether the proposed exemption was important, proportionate and the least restrictive option.  Applying these principles, Harbison J arrived at the same decision to grant the exemption, concluding that the restriction imposed by the proposed exemption on the right to equality (protected by s 8 of the Charter) was demonstrably justified.

The decision is available at

Melanie Schleiger is on secondment to the Human Rights Law Resource Centre from Lander & Rogers