Anti-discrimination laws that discriminate

Anti-discrimination laws that discriminate

What’s the difference between a travel company for women and a private club for men?  It’s not a joke, but the answer may make you laugh.

In Victoria, a travel company that excludes men constitutes unacceptable discrimination.  A club that excludes women is fine.

The reason for this perplexing inconsistency is that private clubs are permanently exempt from our Equal Opportunity Act.  This means that while other groups (such as women’s only travel agencies) are obliged to justify their discriminatory practices, private clubs are under no such obligation.

Last week, VCAT (the Victorian Civil and Administrative Tribunal) denied Travel Sisters, a company that wanted to arrange tours for women only, permission to discriminate.  The decision was based on the failure of Travel Sisters to provide an adequate justification for why they needed to exclude men.

Under Victorian law, organisations that do not enjoy a permanent exemption from the Act are allowed to discriminate, but only if they can justify doing so.  VCAT will consider the reasons provided and attempt to strike an appropriate balance between competing rights and interests.

In fact, Travel Sisters could have mounted a case for providing a women’s only service, but didn’t.  Instead their explanation for why they needed to discriminate didn’t go much further than ‘because we want to’, so their application was rejected.

This requirement to explain and justify discrimination is not imposed on men’s clubs.

On 24 November, a Victorian parliamentary committee recommended that this regime be left in place.  If Victorian parliament adopts the Committee’s recommendations, clubs such as the Australian Club, the Melbourne Club and the Athenaeum Club will retain their licence to discriminate, no questions asked.

The committee was unwilling to interfere with club members' right to freely associate and right to privacy.  But it is difficult to argue that the need for men-only clubs to exclude female members outweighs the need to eradicate discrimination against women.

Even the Savage Club acknowledges this.  In his evidence to the committee, Noel Bushnell of the Savage Club said that requiring justification of discriminatory membership policies would pose 'an almost insurmountable barrier to men-only clubs'.

Men-only clubs may appear innocuous, but they are a significant obstacle to substantive equality for women.  The exclusionary nature of these clubs systematically deprives women from developing their career potential and breaking into powerful business, political and community networks.

Denying women equal access to these elite and powerful institutions also reinforces the stereotypical view that women are inferior as leaders and business professionals.

It is believed that Chief Justice Marilyn Warren is the first Victorian Supreme Court Chief Justice in over a century who has not been offered honorary membership of the Australian Club.

The symbolic significance of these exclusionary practices – and their endorsement in our laws – should not be underestimated.  Nor should we be placated by claims that discrimination against women is a ‘non-issue’.  In 2008, women in ASX 200 companies held 2 per cent of CEO positions, chaired 2 per cent of boards and held 8.3 per cent of board director positions.

Earlier this year, state Attorney-General Rob Hulls said that private men’s clubs were 'fast becoming an amusing relic’.  If we allow these clubs to retain their special protection, the joke is on us.

Rachel Ball is a lawyer at the Human Rights Law Resource Centre.  Melanie Schleiger is an anti-discrimination lawyer at Lander & Rogers.

This article was first published by The Drum.