Travel Sisters (Anti-Discrimination Exemption)  VCAT A189/2009 (17 November 2009) Facts
In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate women only travel tours.
The applicant submitted that her proposed business would provide access to a safe and secure environment for women wishing to travel. In support of her claim for an exemption, the applicant submitted that her proposed business would:
- offer security to women who were frightened or uncomfortable traveling alone;
- be tailored to women’s common interests;
- offer reassurance to the male partners of women traveling alone;
- provide an opportunity to travel for women who, for cultural, religious or other reasons, are unable to, or feel uncomfortable, traveling in mixed groups; and
- provide security to domestic and sexual violence survivors wishing to travel.
In making these submissions, the applicant drew on the arguments put forward in Morris  VCAT 380, a similar case in which an exemption was granted.
The Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) intervened in the proceedings against the application. Citing Bell J’s decision in Lifestyle Communities (No 3)  VCAT 1869, the VEOHRC argued that the ‘purpose of the Equal Opportunity Act did not permit the grant of exemptions in order to achieve convenient, economic and practical outcomes, but that the true purpose was to promote equal opportunity and prevent discrimination’.
In the VEOHRC’s view, the applicant had provided insufficient evidence to justify the proposed limitation of the right to recognition and equality before the law – a core element of the EO Act. It submitted that ‘accommodating a mere preference by a section of the female community for women only tours was unlikely to be able to be characterised as promoting equal opportunity and assisting the prevention of discrimination’. It further submitted that the proposed limitation of the right to equality was extreme in so far as it sought to exclude men on the basis of gender stereotypes related to men’s behaviour and women’s reaction to men’s presence. The VEOHRC noted that there are less extreme alternatives, such as enforcing standards of conduct on tours, which would enable the applicant to achieve her business objectives without unreasonably impinging on the right to equality.
Judge Harbison denied the application for an exemption. In so doing, her Honour noted that the Victorian Charter requires a very stringent test to be applied in deciding whether or not to grant an exemption under section 83 of the EO Act. A limitation of the right to equal protection, she said, is permissible only if it can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Judge Harbinson concluded that the applicant had failed to discharge the burden of establishing why the proposed limitation of the right to equal protection was justified. Her Honour based this decision, in large part, on the failure of the applicant to provide evidence to support the matters on which she relied. She reasoned that ‘[u]ntil this evidence is provided the most that can be said is that the applicant believes that her target group would prefer to participate in tours that were exclusive female. The grant of an exemption may well be convenient and practical to assist Erin in the establishment of her business, but it cannot presently be justified on human rights principles’. In her Honour’s view, it was irrelevant that the applicant was unable to produce supporting evidence since she had not yet commenced her business. In line with the submission made by the VEOHRC, Harbinson J also concluded that there were less restrictive means available to the applicant to reasonably achieve her business objectives. Judge Harbison distinguished the application from VCAT’s earlier decision in Morris on the basis that it was decided prior to the entry into force of the Victorian Charter, and that the supporting evidence supplied by the applicant in the Morris case differed from the evidence brought in the present case.
Travel Sisters serves as a reminder that applications for exemption under s 83 of the EO Act will be considered in the context of the obligations enumerated in the Victorian Charter. Judge Harbison’s decision makes explicit the fact that it is the applicant who bears the burden of establishing that an application for exemption is compatible with the Victorian Charter. The failure to provide sufficient evidence regarding the compatibility of an application for exemption will result in its dismissal.
Judge Harbison’s finding in Travel Sisters might have been strengthened, however, if her Honour had considered the obligation in the context of substantive equality pursuant to s 8 of the Victorian Charter. In this regard, Her Honour might have explained that the obligation not only requires equal treatment of the similar interests of men and women, but also the accommodation and acknowledgement of biological as well as socially and culturally constructed differences between them. In so doing, her Honour might have recognised that there may well be circumstances where the establishment of women’s only travel tours is permissible under s 7(2) of the Victorian Charter. In this connection, she might have drawn parallels with VCAT’s decision in YMCA – Ascot Vale Leisure Centre (Anti Discrimination Exemption)  VCAT 765, in which the YMCA – Ascot Vale Leisure Centre was granted an exemption to offer women’s only swimming sessions to enable Muslim women to participate in them. Judge Harbison might have also provided insight into how the applicant might have sought to discharge the evidentiary burden, given that she had not yet commenced her business and was acting lawfully by applying for an exemption first.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2427.html.
Simone Cusack is a Public Interest Lawyer with the Public Interest Law Clearing House (Vic). Her most recent book, co-authored with Rebecca Cooke, is entitled Gender Stereotyping: Transnational Legal Perspectives (2009).