Areas of public life in which discrimination is prohibited

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

As discussed above, the Equal Opportunity Act does not apply to all interactions between people. Rather, it prohibits unlawful discrimination in certain areas of public life. This chapter examines those areas in which discrimination is prohibited, including issues that commonly arise in each of these contexts.

Part 4, Division 1 of the Equal Opportunity Act makes it unlawful to discriminate in employment, while Part 4, Division 2 prohibits discrimination in employment-related areas.

The protection against discrimination in employment extends beyond the traditional employer-employee relationship to include independent contractors and people whose remuneration is commission based.

Subject to the relevant exceptions, these divisions prohibit discrimination against:

  • job applicants (section 16)
  • employees (section 18)
  • contract workers (section 21)
  • partners (including prospective partners) of firms comprising five or more partners (sections 32-33)
  • members of industrial associations (including prospective members) (section 35)
  • members of professional qualifying bodies (including prospective members) (section 36).

The Equal Opportunity Act also broadly describes how discrimination may occur in employment and employment-related contexts. In summary, this includes discrimination:

  • in deciding who should be offered employment, membership of an industrial association or a professional qualifying body
  • in the terms or conditions of work
  • by denying access to benefits such as ongoing education, training or opportunities for promotion
  • by subjecting the complainant to a 'detriment'.

There are some differences in the way in which discrimination is described in relation to applicants, employees, contract workers, partners, members of industrial associations and members of professional qualifying bodies. Claimants and respondents should refer to the applicable sections within Division 1 of the Equal Opportunity Act for clarification.

How discrimination in employment may occur

Offers of employment

Fundamentally, candidates for employment must be judged on their individual merits, rather than stereotypical assumptions based on their attributes. It is unlawful to presume a person who has parental responsibilities will not be available for weekend work, or that a male candidate will not 'fit in' with the team as well as a female candidate because of his sex, for example.

Section 20 of the Equal Opportunity Act specifically requires that in offering employment to a person with a disability, an employer also must consider any 'reasonable adjustments' necessary for accommodating the person's special needs (provided the candidate could 'adequately perform the genuine and reasonable requirements' of the job once those reasonable adjustments were made). The chapter on Reasonable adjustments for people with a disability considers this requirement in more detail.

Similar issues were considered under the 1995 Act in Davies v State of Victoria [2000] VCAT 819 (Victoria Police). In that case, VCAT found Victoria Police directly discriminated against the complainant by rejecting his application to join the police force because he failed a colour vision test. Ultimately, VCAT was not satisfied the results of the colour vision test proved whether the complainant either was, or was not, able to perform the genuine and reasonable requirements of employment as a constable. Those requirements included motor vehicle pursuits and identifying people and things. VCAT ordered Victoria Police to undertake more rigorous testing before it made a decision.

Terms on which employment is offered

Section 16(b) of the Equal Opportunity Act specifically prohibits discrimination against prospective employees 'in the terms on which employment is offered to the person'. This may encompass things such as the basis of the employment, salary package arrangements, working hours and work-related benefits such as vehicle allowances.

For example, offering female candidates part-time or casual work and male candidates full-time permanent work, because of the candidates' sex, would constitute unlawful discrimination in the terms on which the employment is offered.

Contract work

The Equal Opportunity Act protects contract workers against discrimination. Section 21 provides that a principal must not discriminate against a contract worker in the terms on which they are allowed to work; by not allowing a contract worker to work or continue to work; by denying or limiting a contract worker's access to a benefit connected with the work; or by subjecting a contract worker to any other detriment.

The specific protection offered in this section is limited to the 'principal' and 'contractor' relationship. In Perekrestov v Ward (Human Rights) [2019] VCAT 115 [44]-[45], VCAT considered whether a person engaged as a sub-contractor was covered by the Act. The complainant was an independent contractor, acting in the capacity of a sole trader. However, VCAT found her allegations of discrimination were made not against her 'principal' but another related party. On this basis, she did not satisfy the threshold requirement of being a contractor for the purpose of section 21 of the Equal Opportunity Act.

Employment-related medical testing

An employer may investigate issues in relation to job applicants if the employer can establish that the information sought relates to the inherent requirements of the job. The inherent requirements of employment must be determined having regard to the circumstances in which the employment is carried on and the dangers to which an employee may be exposed or may expose others (see X v The Commonwealth [1999] HCA 63; 200 CLR 177).

In Davies v State of Victoria [2000] VCAT 819(Victoria Police), VCAT considered these matters were also relevant in determining the 'genuine and reasonable requirements of employment' for the purposes of section 22 and section 23 of the 1995 Act (relating to specific exceptions to discrimination).(1)

In that case, VCAT found Victoria Police had directly discriminated against the complainant by rejecting his employment application because he failed a colour vision test. VCAT held the inability to perform the inherent requirements of the role must be assessed in a practical way that enables the employer to conclude it is more probable than not that the person will not be able to perform adequately the requirements of the employment. A decision needs to be genuinely made and based on information capable of supporting that decision:

An assumption based on no information or on scant information, will not be enough.

In Kassir v State of Victoria (Anti-Discrimination) [2012] VCAT 1977 Mr Kassir was unsuccessful in his application to join Victoria Police. He had disclosed a history of mental health issues including post-traumatic stress disorder, depression and anxiety. He claimed he had been discriminated against in the recruitment process because of his disabilities. The respondents relied on the opinion of the Assistant Police Medical Officer and the Police Psychologist who both formed the view that Mr Kassir would be unsuitable for the role. In this case the respondents conceded Mr Kassir had been treated unfavourably because of his disability but that the treatment was not unlawful because he was unable to perform the genuine and reasonable requirements of the job. VCAT agreed the exception in section 23 of the Act applied.

In Vickers v The Ambulance Service of NSW [2006] FMCA 1232 the complainant applied for a job as a trainee ambulance officer with the Ambulance Service of NSW. The complainant was required to undergo a pre-employment medical assessment, and disclosed he had Type 1 insulin-dependent diabetes. Despite providing a letter from his treating endocrinologist supporting his application for employment, the medical service conducting the assessment recommended to the ambulance service that the complainant was unsuitable for the position because of his diabetes. Based on this recommendation, the ambulance service rejected the complainant for the position.

Mr Vickers claimed he had been directly discriminated against on the basis of his diabetes. Mr Vickers also argued the ambulance service's selection process for determining who should be offered employment amounted to direct discrimination. The Ambulance Service relied on the defence that it is not unlawful for an employer to discriminate against a person who is unable to carry out the inherent requirements of the job.

The Federal Magistrates' Court emphasised employers must investigate each case on its own circumstances. It held the ambulance service had unlawfully discriminated against the complainant by refusing to consider his employment application on the basis of his diabetes. The Court found the 'inherent requirements' defence could not be relied upon because the complainant had never had a hypoglycaemic event; had previously been able to control his diabetes during hospital shift work; and that he would easily be able to take appropriate remedial measures if his blood glucose levels altered. For this reason, his diabetes would not pose a threat to patients of the ambulance service. VCAT concluded the respondent was in no position to assess the extent of the risk factor identified, reasoning that medical testing before employment needs to be specifically related to the work the person has to do.

In Tarr v Torrens Transit Services (North) Pty Ltd [2008] SAEOT 12 the Equal Opportunity Tribunal found failing a back fitness test should not have disqualified a bus driver from getting a job. The complainant was told he could not do the job because he had failed a back fitness test given as part of pre-employment medical tests. VCAT found a back fitness test did not show whether Mr Tarr could do the job.

VCAT found the respondent did not:

[A]ttempt to undertake an overall assessment of an applicant, having regard to recent work experience and history. [The respondent] did not make a balanced assessment of all of the test results in context. It seems, from the evidence, that [the respondent] did not appreciate the difference between the fulfilment of job requirements and the presence of risk factors [33].

In the decision of Melvin v Northside Community Service Incorporated [1996] HREOCA 20 the complainant was dismissed on the basis of an optometrist's report that she was 'legally blind'. The report, however, did not answer the questions the employer had asked, which were in relation to the complainant's optical capacity, or address the complainant's ability to perform the inherent requirements of the job. The Australian Human Rights and Equal Opportunity Commission found Ms Melvin had been unlawfully discriminated against. It accepted specialist medical and other evidence that she could perform the inherent requirements of the job. In this context the exception contained in section 86 relating to the protection of health, safety and property may also be relevant. This is discussed further in the chapter on Special Measures.

Access to 'benefit' including opportunities for promotion, training, transfer etc

The Equal Opportunity Act also prohibits discrimination in relation to advancement opportunities such as promotions and further training. This is important because opportunities for training and promotion often lead to further benefits within the workplace, such as greater seniority and better remuneration. See, for example, Keenan v The Age Company Limited [2004] VCAT 2535 regarding failure to provide a vehicle.

Any other 'detriment'

The Equal Opportunity Act also prohibits discrimination in work by subjecting an employee to 'any other detriment'. Section 4 of the Equal Opportunity Act specifies that 'detriment' includes 'humiliation and denigration'. See the discussion in relation to humiliation and Walgama v Toyota Motor Corporation Australia Ltd [2007] VCAT 1318above in the chapter on Explaining the types of discrimination.

However, the Equal Opportunity Act does not exhaustively define 'detriment'. Case law suggests that a person suffers detriment where he or she is placed 'under a disadvantage of a matter of substance' (see Bogie v University of Western Sydney (1990) EOC 92-313) or 'suffers a material difference in treatment' (see Bailey v Australian National University [1995] HREOCA 274) that is 'real and not trivial' (see Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44).

Examples of other treatment that may constitute a detriment in employment include:

In XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492, there was a dual finding of sexual harassment in a workplace and sex discrimination. The Applicant was subjected to comments of a sexual and violent nature on several occasions. These incidences were reported to the employer, Marriot, through the staff member, Ms Baronessa, who dealt with the complaint. VCAT was satisfied that the Applicant's sex was a substantial reason for Ms Baronessa's unfavourable treatment of her which included statements along the lines of, 'you are working in man's working environment and you need to expect that kind of unwanted attention,' and 'you look tired maybe you are perceiving it wrong. Maybe you are being oversensitive' [46]. The humiliation and distress suffered by the Applicant constituted a 'detriment' and damages were assessed at $10,000.

In Dickie v State of Victoria [2009] VCAT 713 VCAT was not satisfied an 'emotionally charged exchange of views' between the complainant and another person constituted a 'detriment' to the complainant.

Humiliation

The Equal Opportunity Act is clear that causing a person to experience humiliation - for example, by subjecting a person to public ridicule, racial abuse (see Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd [2001] VCAT 1706; Walgama v Toyota Motor Corporation Australia Ltd [2007] VCAT 1318; Poulter v State of Victoria [2000] VCAT 1088) or sexual harassment (see XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492) in the workplace - constitutes a 'detriment'. This is discussed in more detail in the section on Humiliation as unfavourable treatment.

Reasonable requirements and conditions

Despite what is set out above, the Equal Opportunity Act does not prohibit an employer from imposing or maintaining reasonable terms of employment, provided the employer does not breach specific obligations, such as the obligation to accommodate parental/carer responsibilities and to make reasonable adjustments for somebody with a disability. This is discussed in more detail in Genuine and reasonable requirements of employment.

Accommodating a person's responsibilities as a parent or carer in employment

In work-related contexts, employers have specific obligations under the Equal Opportunity Act to accommodate the responsibilities of parents and carers, provided it is reasonable to do so. These obligations are separate to, but broadly consistent with, the right to request flexible working arrangements under the Fair Work Act 2009 (Cth).(2) The Equal Opportunity Act applies to all employers in Victoria, irrespective of whether the Fair Work Act covers the employer.

The Equal Opportunity Act specifically provides that an employer, principal or firm must not 'unreasonably refuse' to accommodate a person's responsibilities as a parent or carer in relation to their 'work arrangements'.(3) These obligations are set out in various different sections of the Equal Opportunity Act and apply in relation to:

  • people who are offered employment (section 17)
  • employees (including casual employees) (section 19)
  • contract workers (section 22)
  • partners (including people who are invited to become partners) of firms - such as legal and accounting firms - comprising more than five partners (section 32).

The Equal Opportunity Act includes several examples of the types of working arrangement that may assist in accommodating a person's responsibilities. These may include, for example, changing a person's hours of work, rescheduling meetings so that people with parent/carer's responsibilities can attend, or permitting work from home.

Responsibilities as a 'parent' or 'carer'

Under section 4 a person has responsibilities as a 'carer' if 'another person is wholly or substantially dependent [on them] for ongoing care and attention'. This may include, for example, a person's responsibilities to care for an elderly person or somebody with an illness or disability. The definition of carer excludes circumstances where the caring arrangements are wholly or substantially commercial (for example, paid nurses or carers).

For the purposes of the Equal Opportunity Act, a 'parent' includes step-parent, adoptive parent, foster parent or guardian.

Requirement for complainant to make a request

A person must make a request for accommodation of their responsibilities as a parent or carer. VCAT found this to be an implicit requirement, although the Equal Opportunity Act does not contain an explicit requirement for such a request (see Richold v State of Victoria, Department of Justice [2010] VCAT 433 [38].) VCAT has also determined a complainant must establish (see Tate v Department of Human Services [2015] VCAT 507 [56]):

  • Was there was a request to accommodate the complainant's responsibilities as a parent or carer?
  • What are the responsibilities?
  • Was the request refused?
  • Was the refusal unreasonable?

Unreasonable refusal

The Equal Opportunity Act sets out a number of factors to be considered in determining whether it was reasonable for the employer, principal or partnership to refuse the employee's request (section 17(2), section 19(2), section 22(2), section 32(2)) Broadly, these factors include:

  • the complainant's personal circumstances including the nature of his or her responsibilities as a parent or carer
  • the nature of the complainant's role or the work performed by them
  • the respondent's circumstances (including its finances, size, and operations)
  • the effect that accommodating the complainant's responsibilities would have on the respondent (including efficiency, productivity, customer service and the impacts on other people in the workplace)
  • the consequences, for the complainant, of the refusal to accommodate his or her parental or carer responsibilities.

In determining whether the respondent's conduct was reasonable, VCAT must balance the competing interests of the complainant and respondent by reference to these 'commonsense considerations'.(4) In _Richold v State of Victoria, Department of Justice [2010] VCAT 433(Richold) VCAT clarified the obligation 'does not require an employer to entirely subjugate its own interests to the interests of the employee as a parent or carer. Rather it requires a reasonable accommodation to be reached between the two' [43].

In Richold, the complainant was employed as a casual prison guard. Her complaint related to a new policy that changed the way shifts were allocated to casual staff. The policy aimed to ensure work that attracted higher penalty rates (such as weekend work) was distributed fairly. The change meant that if Ms Richold refused more than two shifts per week - which she often had to do due to her parental responsibilities - she received fewer shifts in total. This differed from the previous policy, under which casual staff had been rostered for days they were available and the number of hours were distributed as evenly as possible. Ms Richold argued the new policy constituted an unreasonable failure to accommodate her parental responsibilities.

VCAT found although the previous policy was more accommodating of Ms Richold's family responsibilities, the new policy was 'not unreasonable', especially because it was designed to address concerns raised by other employees about the fair allocation of work [44]. VCAT looked at a number of factors in reaching this conclusion. Ms Richold's status as a casual employee was found to be especially relevant because VCAT considered 'the very nature of casual employment [...] grants the fullest possible flexibility' [42].

A different result may have been reached in this case if the changes had impacted the working arrangements of permanent full-time or part-time employees [34].

In Tate v Department of Human Services [2015] VCAT 507 [29], [108], [110] Ms Tate, a child protection practitioner and single parent of two school age children, alleged her employer had unreasonably refused to accommodate her parental responsibilities. Ms Tate had requested to not work one day per week (taking time in lieu) over a summer school holiday period and also sought to reduce her working week to four days. She also alleged she was required to work excessive hours, which meant she was unable to fulfil her parental responsibilities. Ms Tate's employer refused her requests.

To assess the reasonableness of the refusal, VCAT considered the factors outlined in section 19(2). In particular, VCAT considered evidence regarding Ms Tate's performance and her employer's concerns about her ability to manage her workload. VCAT considered 'the size and nature of the workplace, the effect on the workplace and the consequences' under sections 19(2)(e), 19(2)(f) and 19(2)(g), as well as the unpredictable nature of the role, relevant to section 19(2)(b). In all the circumstances, the refusal to reduce Ms Tate's working hours was not found to be unreasonable. Her claim regarding the taking of leave also failed.

There are several permanent exceptions that make discrimination lawful in employment and related areas. These exceptions, discussed in Exceptions relating to employment in the chapter on Permanent exceptions to discrimination, relate to:

  • adjustments for a person with disabilities that are not reasonable, or the person could not adequately perform the genuine and reasonable requirements of the role even after the adjustments were made (section 23 and section 34)
  • offering employment for domestic or personal services (section 24)
  • employment for the care of children, where discrimination is necessary for their wellbeing (section 25)
  • offering employment to people of one sex where it is a genuine occupational requirement of employment that employees be people of a particular sex (section 26)
  • offering employment on the basis of political belief or activity for political employment (section 27)
  • offering employment to people with a particular attribute to deliver services for people with the same attribute (section 28)
  • measures that are reasonably necessary to protect health, safety and property - for example, measures to promote occupational health and safety (section 86)
  • the payment of youth wages (section 28A)
  • early retirement schemes (section 29)
  • reasonable terms of an occupational qualification (section 37).

Discrimination in education

Part 4, Division 3 of the Equal Opportunity Act prohibits discrimination in education.

Under this division, an 'educational authority' (that is, a person or body that administers a school, college, university or other educational institution) must not discriminate against students or prospective students. Discrimination must not occur in relation to admissions, the delivery modes, access to benefits, expulsion or 'any other detriment' experienced by the student. (Section 38 and section 40.)

These provisions apply to entities that manage schools, TAFE institutes, and universities in the private and public sectors. They also apply to any other entity or person that runs an educational institution. An educational institution is defined broadly to include any institution at which education or training is provided.

Where educational providers also employ staff or provide any other services, such as services to parents of students, they will also be subject to other aspects of the Equal Opportunity Act discussed elsewhere in this resource.

A school may provide parents with 'services' in the course of providing education to their offspring, for example. In Murphy v New South Wales Department of Education [2000] HREOCA 14 Commissioner Carter held the parents of a disabled student were treated less favourably by the school than the parents of able-bodied children. The school created a hostile environment, which caused the parents to leave the suburb where they had lived for some years and transfer their daughter to another school. This change was found to be a substantial detriment that occurred because of their daughter's disability. Note, however, that 'services' under section 4 of the Equal Opportunity Act do not include training and education in an educational institution, but may include things ancillary to the provision of training and education, such as enrolment, case management, the provision of facilities and furniture, and communication with parents about the wellbeing of their children.

An educational authority must not directly or indirectly discriminate against a student or prospective student in its dealings with that person in their capacity as a student or prospective student. This prohibition extends to both direct and indirect discrimination. Under section 38 of the Equal Opportunity Act discrimination may include:

  • refusing an application for admission as a student
  • imposing discriminatory terms on which a student is admitted
  • denying or limiting a student's access to a benefit provided by an educational authority
  • expelling a student
  • subjecting them to any other detriment.

Discrimination at the time of enrolment was considered in Arora v Melton Christian College (Human Rights) [2017] VCAT 1507. In that case, parents of a five-year-old Sikh boy, who had uncut hair and wore a head covering as part of his religious belief and practice, sought to enrol him at a Christian school. The boy's enrolment did not proceed after the school's principal told the boy's parents he would have to comply with the school's uniform policy. The policy required boys to have short hair and not wear any head coverings related to a non-Christian faith. VCAT held the complainant was excluded from the school because his religious belief prevented him from complying with the uniform policy.

Obligation to make reasonable adjustments for students with disabilities

Section 40 of the Equal Opportunity Act also includes an express and positive obligation on educational providers to make reasonable adjustments for students or prospective students with a disability who need adjustments to enable them to 'participate in or continue to participate in or derive or continue to derive any substantial benefit from an educational program'. Under section 41 this obligation applies unless the educational authority can demonstrate the person would not be able to participate or derive a substantial benefit from the educational programme even if adjustments were made.

Section 40(2) provides examples of the adjustments an educational authority could make for a person with a disability, such as the provision of a teachers' aide or particular computer software program or moving a course or event from an inaccessible venue to an accessible one.

Types of adjustment will depend on the student's disability, but could include:

  • modifying educational premises - for example, providing ramps, modifying toilets and ensuring that classes are in rooms accessible to the student
  • modifying or providing equipment - for example, lowering lab benches, enlarging computer screens, providing specific computer software or an audio loop system
  • changing assessment procedures - for example, allowing for alternative examination methods, such as oral exams, or allowing additional time for someone else to write an exam for the student
  • changing course delivery - for example, providing study notes or research materials in different formats.

A range of factors relevant to whether an adjustment is reasonable are set out in detail in section 40(3). Reference is made in this provision to acts that comply with the various requirements of the Disability Discrimination Act 1992 (Cth). In the education context, the Disability Discrimination Act provides that the Minister may, by legislative instrument, formulate disability standards in relation to any area in which it is unlawful for a person to discriminate against another.

In 2005 the Commonwealth Government promulgated the Disability Standards for Education under the Disability Discrimination Act 1992 (Cth). The Equal Opportunity Act 2010 (Vic) operates concurrently with Commonwealth discrimination law including the Disability Discrimination Act 1992 (Cth). Not only does it do so by operation of law, but this interaction is expressly referred to and relied upon in the way in which section 40 of the Equal Opportunity Act is drafted. Section 40(4), for example, expressly provides:

An educational authority is not required to make an adjustment under subsection (2) to the extent that the educational authority has complied with or has been exempted from compliance with, a relevant disability standard made under the Disability Discrimination Act 1992 of the Commonwealth in relation to the subject matter of that adjustment.

This provision aims to ensure consistency across state and Commonwealth jurisdictions in dealing with the concepts of disability discrimination and the need to make reasonable adjustments. It also avoids situations where an educational authority is held to be compliant with Commonwealth discrimination laws but in breach of state laws.

Discrimination in education case law

Disability discrimination

Many of the cases brought under the 1995 Act in the education context related to claims of disability discrimination. They generally involved significant consideration of the technical requirements needed to establish either direct or indirect discrimination.

In Turner v Department of Education and Training [2007] VCAT 873 [586] VCAT found the Department of Education and Training discriminated against a student with a severe learning disorder by imposing a requirement that she access her education without a full-time teacher's aide. This requirement limited her participation in and access to curricula in those classes and diminished her opportunity to attain successful educational outcomes. VCAT found the opportunity for class participation, to access the educational curriculum and to achieve her educational potential, are benefits provided by the Department of Education and Training. These benefits were not provided when the schools did not provide adequate or reasonable educational assistance to the student.

This case predated the requirement to make reasonable adjustments, now included in the Equal Opportunity Act.

The case of RW v State of Victoria [2015] VCAT 266 was a claim of indirect discrimination on the basis of disability, under both the 1995 Act and the Equal Opportunity Act 2010. In relation to an educational authority's obligation to make reasonable adjustments for a student with a disability, Member Megay stated:

The requirement to make reasonable adjustments and the factors included in section 40(3), make it clear that section 40 is not a requirement to create a perfect environment for every student with a disability regardless of the nature and extent of the disability, and regardless of the funding or teacher time required.
 
Financial impact on the school, and the impact on staff and other students are relevant factors to take into account in determining whether an adjustment is reasonable. This signals, in my view, that it is not assumed that a school will have unlimited funds and staff resources.
 
By including these factors, section 40 makes it clear, in my view, that a school is not required to use all available funds and all available teacher time in order to make adjustments for one student. Nor is it required to do so to the detriment of the needs of other students, and the ability of teachers to use their time, expertise and energy towards the education of all the students in their class.
 
Including the effect on the person of making the adjustment as a factor also makes it clear, in my view, that need and effectiveness are relevant considerations [99].

These cases make clear, however, that claims turn on their specific facts. Issues that are likely to arise include:

Religion in education

In the case of Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547 VCAT considered a claim of direct discrimination against the Department of Education and Early Childhood Development made by parents of children at Victorian state primary schools. The complainants argued the method of providing religious instruction in these schools, which is based on distinctive religious tenets and beliefs, was discriminatory because:

  • children not participating in religious instruction (non-participating students) were identified as different, and separated from, their classmates when religious instruction classes were held
  • there was no curriculum instruction during religious instruction classes for non- participating students, denying them the opportunity to be taught secular subjects
  • religious instruction was timetabled during school hours.

The complainants sought that:
  • the department require parents to opt-in to religious education. The department amended its policy to an opt-in system in 2011 following the lodgement of the complaint
  • religious instruction occur after school or at lunchtime
  • non-participating students be provided with proper educational alternatives. The amendments to department policy also included a commitment that non-participating students would be engaged in meaningful activities.

Judge Ginnane held the complainants had failed to establish that the department had discriminated against the non-participating students within the meaning of the 1995 Act or the Equal Opportunity Act 2010. His Honour found 'the evidence did not establish that the children, who did not attend [Special Religious Instruction] at the three schools, were treated in any discriminatory manner' [6]. His Honour accepted evidence of teachers that there was no teasing, bullying or pressure on students to attend religious instruction. His Honour reasoned 'instruction is not compulsory and parents have a choice whether their children attend. If they do not, they engage in useful, non-curriculum activities under teachers' supervision' [6].

In dismissing the complaint, His Honour noted 'attendance by a child at special religious instruction does not, necessarily, indicate that the child, or the parents, hold any particular religious beliefs'[6].

The complainants appealed VCAT's decision to the Supreme Court of Victoria in Aitken & Ors v State of Victoria [2013] VSCA 28, however leave to appeal was refused.

Exceptions relating to education

There are several permanent exceptions that make discrimination lawful in education. These exceptions, discussed in Exceptions relating to education, relate to:

Discrimination in the provision of goods, services and land

Part 4, Division 4 of the Equal Opportunity Act makes it unlawful to discriminate in the provision of goods and services and in the disposal of land. The Equal Opportunity Act prohibits discrimination:
  • by refusing to provide goods or services to a person (section 44(1)(a))
  • in the terms on which goods or services are provided (section 44(1)(b))
  • by subjecting the person to 'any other detriment' in connection with the provision of goods or services (section 44(1)(c))
  • by refusing to dispose of any land to the other person (section 50(1)(a))
  • in the terms on which land is offered to the other person (section 50(1)(b)).
Under section 45 there are also specific obligations on service providers to make reasonable adjustments for a person with a disability, as discussed in Reasonable adjustments for people with a disability.

What 'services' means

Section 4 of the Equal Opportunity Act defines 'services' as follows:

services includes, without limiting the generality of the word--
a) access to and use of any place that members of the public are permitted to enter;
 
b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;
 
c) provision of entertainment, recreation or refreshment;
 
d) services connected with transportation or travel;
 
e) services of any profession, trade or business, including those of an employment agent;
 
f) services provided by a government department, public authority, State owned enterprise or municipal council--
 
but does not include education or training in an educational institution.

'Services' is defined inclusively and is not limited to the categories listed in section 4 of the Equal Opportunity Act. Education or training in an education institution, however, is not a service, but would be covered under the provisions of the Act relating to education.

This means a generous interpretation of 'services' is appropriate (see [[http://www.austlii.edu.au/au/cases/cth/HCA/1997/30.html][IW v City of Perth [1997] HCA 30; [1997] HCA 30; (1997) 191 CLR 1)]], particularly given the Equal Opportunity Act is beneficial legislation. An interpretation that furthers the objectives of the Equal Opportunity Act and provides access to redress for those alleging discrimination is also likely to be consistent with the Charter of Human Rights and Responsibilities.

In the decision of Bayside Health v Hilton [2007] VCAT 1483 VCAT made general comments about the scope of 'services' that are consistent with this interpretation. Specifically, Deputy President McKenzie stated:

The definition of 'services' in section 4 is inclusive and not exhaustive. Even from the inclusions, one can see that the definition is extremely broad. It covers a diverse range of things provided by a diverse range of individuals and bodies. Putting the inclusions to one side, 'services' has its ordinary dictionary meaning and covers any act of helpful activity [17].

Deputy President McKenzie considered services can be tangible or intangible, voluntary or provided for payment, and can be provided to more than one person. Furthermore, the fact that services may be regulated by statute does not deprive them of the character of services [18].

However, VCAT noted not every benefit that one person derives from the act of another constitutes a 'service', such as benefits derived from the exercise of a judicial or quasi-judicial discretion, or from something done by a body acting as a legislator.

The decision of Bayside Health v Hilton was cited with approval in Slattery v Manningham City Council [2013] VCAT 1869 [29]. See Services provided by government for a discussion of that case.

Services established in case law

The following have been held to constitute 'services' for the purposes of predecessors to the Equal Opportunity Act:

These categories of services are discussed in more detail below.

Particularity in identifying the 'service'

In Waters v Public Transport Corporation [1991] HCA 49; [1991] HCA 49; (1992) 173 CLR 349(Waters) the High Court of Australia considered a complaint about the discriminatory effect of changes to the Victorian public transport system on people with disabilities. The changes included the removal of conductors from trams and the introduction of a new ticketing system described as 'scratch tickets' [2]-[3].(5) In considering the case before it, a majority of the High Court held the view that it is important to define what the 'service' is with particularity. In this instance, the service was defined broadly as the 'public transport system'. The majority held the introduction of 'scratch tickets' and the removal of conductors were incidental to the provision of the service and not, as the respondent sought to argue, separate services in themselves.

The same reasoning was adopted by VCAT in Towie v State of Victoria [2007] VCAT 1489 (Towie). Mr Towie complained the Magistrate's Court failed to accommodate his hearing impairment by not providing him with a graphic equaliser and headphones during a hearing, despite his requests for this equipment. Mr Towie argued the State of Victoria provides a service that can be described as 'access to justice', or 'access to court processes'. He argued he was discriminated against by the State of Victoria's failure to provide equipment that would allow him to participate in this service in the same way as others.

VCAT rejected Mr Towie's argument and concluded the 'service' he had identified was so vague, undefined and non-specific that it was not a service at all. VCAT considered adopting Mr Towie's reasoning would mean the 'service' would vary according to the needs of individuals seeking access to the courts. For a person with an impairment who needs special equipment to effectively participate in the hearing process, the service would relate to the provision of equipment. For a non-English speaker who needs an interpreter to effectively participate in the hearing process, the service would vary to relate to the provision of interpreters. VCAT considered such variation removes the distinction between the 'service' and the terms on which the service is provided. VCAT considered Mr Towie was seeking the provision of a new service and a policy change, rather than making a claim regarding an existing service and seeking a remedy under the 1995 Act.

The Towie matter was successfully appealed to the Victorian Supreme Court as Towie v State of Victoria [2008] VSC 177. The Court accepted there had been a breach of natural justice in VCAT finding there was no 'service' without giving him any prior notice of its intention to do so, and in the State of Victoria not making any submissions on this point.

Further, the Court found VCAT should have made a finding regarding whether the service for which Mr Towie alleged discrimination was a service under the definition in section 4(1) of the Equal Opportunity Act, by reference to that definition and the applicable case law. The Supreme Court ordered the matter back to VCAT for hearing on its merits.

In contrast to VCAT's decision in Towie, in Falun Dafa Association of Victoria Inc. v Melbourne CC [2003] VCAT 1955, VCAT noted 'the performance of an activity can represent the provision of services to more than one person or group of persons, and that the nature or character of the service so provided can differ from recipient to recipient' [36].

While Towie and Waters highlight the importance of specifically identifying the service, the decisions appear to turn on the particular facts and identification of the 'service' in each case.

It is unclear whether VCAT would make the same finding if Towie were heard today, in light of Charter of Human Rights and Responsibilities' considerations and explicit reasonable adjustment requirements that require a service provider to consider individual circumstances.

Service not directed to the complainant

While there needs to be some service offered, provided or denied to the complainant for the conduct to come within 'services', the service does not need to be directed solely to the complainant. It is also unnecessary that the complainant be the 'main' recipient of a service, as long as services are offered, provided or denied to the complainant.

In Phillips v Andrews (Human Rights) [2018] VCAT 1714, Mr Phillips alleged unlawful discrimination for being refused entry into a court building by Mr Andrews, a Protective Services Officer, on account of his assistance dogs. When applying for summary dismissal, Mr Andrews argued that his decision to refuse entry was not providing services to the complainant [2]. VCAT noted that although Mr Andrews actions at the court were part of his general function of 'providing services for the protection of… the general public in certain places' under the Victoria Police Act 2013 (Vic) s37, Mr Phillips was individually in receipt of a service, at least at the point of entry [40]-[42].

In Bayside Health v Hilton [2007] VCAT 1483 Mr Hilton made a complaint about the way he was treated by a hospital where his partner was a patient. The hospital lodged an application to strike out Mr Hilton's complaint on the basis that the following should not be considered services:

  • support provided to Mr Hilton by the hospital's social workers and psychologists
  • ad hoc accommodation provided to Mr Hilton by the hospital
  • other services that were broadly described as the provision of information by the hospital to Mr Hilton
  • communication by the hospital with Mr Hilton, and involvement of Mr Hilton in decision making concerning the Mr Hilton's partner's treatment and care.

Although the hospital's application was rejected, VCAT noted not every hospital provides services to every member of a patient's family. However, in Mr Hilton's case, services were directly provided to Mr Hilton on account of him being the patient's partner and his direct involvement in decision making regarding the patient's care.

In contrast, VCAT in Judd v State of Victoria & Anor [2000] VCAT 2495 found no service was provided to the complainant. The complainant claimed the Department of Transport had discriminated in the provision of services by permitting a design of buses that did not accommodate a tall person comfortably. VCAT found there was no service to the complainant because the design rules in question are determinations made by the Commonwealth Minister for Transport in administering the Motor Vehicle Standards Act 1989 (Cth). Considering the provisions of that legislation, VCAT concluded the design rules represent vehicle standards that are instruments of a legislative character and not services directed to the complainant.

In the case of Zangari and St John Ambulance Service [2010] WASAT 6 the Western Australia State Administrative Tribunal held two paramedics who attended Dr Zangari's surgery to provide a service to one of her patients did not provide a service to her as the attending doctor.

VCAT noted even though Dr Zangari had called the ambulance, she was not the 'pivotal link' or 'conduit' between St John Ambulance and the patient. VCAT found the paramedics were required to take control of the situation and provide medical care to the patient, and that a medical practitioner should step back when an ambulance arrives.

VCAT commented 'the mere fact that Dr Zangari might have benefited from St John Ambulance providing services to her patient is not sufficient to establish that she was a person receiving a service within the meaning of [the legislation]' [198].

VCAT noted it might be possible for St John Ambulance to provide a service to another medical practitioner who called an ambulance in different circumstances, but that each case would be assessed on its facts.

Differing nature and character of services across recipients

In Falun Dafa Association of Victoria v Melbourne CC [2003] VCAT 1955 VCAT considered whether the council had refused to provide a service to Falun Dafa (an organisation promoting meditation and exercise, among other things) in excluding it from participation in the 2003 Moomba Parade.

Falun Dafa argued the council, in staging the Moomba Parade and determining who would be permitted to participate, provided a service to participants and potential participants (including Falun Dafa) by allowing them to present their culture and beliefs to a large audience. Falun Dafa contended the proper characterisation of the service was one of exercising decision-making power, and that the conduct of the parade (while a service to the public as entertainment) was also a service to the participants.

Judge Bowman agreed services can be reciprocal and represent the provision of services to more than one person or group, so the nature and/or character of the service provided differs between recipients. His Honour expressly agreed with the proposition that different facets of an activity may represent services that can be characterised differently.

His Honour concluded the council, in organising and staging the Moomba Parade, provided a service to participants and prospective participants (whereby they could promote themselves). Furthermore, the council was found provide a service in deciding who could participate in the Moomba Parade.

Categories of service

Statutory services

There is some uncertainty around whether services provided by a statutory authority in accordance with legislation constitute 'services' for the purposes of anti- discrimination laws, including the Equal Opportunity Act.

In the matter of Kavanagh v Victorian Workcover Authority [2012] VCAT 2009 VCAT considered a range of factors that would not amount to services. These included:

  • exercising or refusing to exercise a statutory discretion including a quasi-judicial discretion, for instance a duty to decide whether to prosecute
  • a refusal to consider to exercise discretion however may be a refusal of a service
  • the performance of statutory duties.

In the matter of Khalid v Secretary Department of Transport Planning and Local Infrastructure [2013] VCAT 1839 [38] VCAT found setting the conditions for who is entitled to use public transport under the Transport (Compliance and Miscellaneous) Act 1983(Vic), including determining who could receive concessional public transport, is the provision of a service under the Equal Opportunity Act.

The question of what governmental activity will constitute a service was considered by the High Court in IW v City of Perth [1997] HCA 30; [1997] HCA 30; (1997) 191 CLR 1 in the context of Perth City Council's decision to reject an application for town planning approval for a centre for people with HIV. In that case, the members of the High Court took different approaches to deciding whether the council was providing a service and, if it was, how that service should be identified. The majority determined the council had not provided a service by refusing to exercise a statutory discretion to approve the application for rezoning. The judges did not share the same reasoning for their conclusion, making the application of the case to other situations difficult. However, the majority did agree that in some cases the performance of statutory duties may also amount to a 'service' to a particular individual.

In later cases, the courts have held:

Services provided by government

A broad range of activities undertaken by local councils can be 'services' for the purpose of the Equal Opportunity Act:

In Slattery v Manningham City Council [2013] VCAT 1869 (Slattery)VCAT held provision by the council of access to the local library, swimming pool, toilets in council parks and other council buildings and facilities were services. VCAT also determined provision of access to customer service counters at council offices are services, as well as the assistance offered by council staff to those who attend the council offices (paragraph 29). In Slattery,VCAT found direct discrimination based on disability had occurred in the provision of goods and services under section 44 of the Equal Opportunity Act. The complainant in this case was a member of the community with psychosocial disabilities that caused him to engage in challenging behaviours. He was banned from accessing any council building and contacting the council. (This case is discussed under What unfavourable treatment means and Disability as a manifestation of a disability.)

Attendance at council meetings

Byham v Preston City Council (1991) EOC 92-377 considered a complaint by a person with disabilities who was keenly interested in local affairs and made a point of attending council meetings, which were located on the second floor of a building. The complainant was usually able to attend council meetings by having his son assist him up the stairs.

The complainant had raised the issue of a lift numerous times before the council. A preliminary feasibility study estimated a lift would cost around $150,000 to install - an expense that the council considered unjustified. The council has received no other complaints about the lack of access to the first floor, although the complainant pointed to a large number of elderly and disabled ratepayers who could benefit from the installation of a lift.

The complainant alleged this was a case of indirect discrimination. The relevant requirement was that the complainant access the first floor using a staircase to attend council meetings. The complainant argued a lower percentage of people with a disability could comply with this requirement compared with people without a disability.

The former Equal Opportunity Board held, while the complainant usually attended council meetings with the assistance of his son, he could not comply with the requirement to access the first floor using the staircase. Accessing the first floor with the assistance of another person was not sufficient.

The Board held it was not reasonable to refuse to install a lift, and ordered the council to do so by a prescribed date.

In Richardson v Casey City Council [2014] VCAT 1294 VCAT also found the 'meaning of service under the Equal Opportunity Act encompasses a range of activities including attendance at public meetings' as well as public question time [99].

Council recreation services

Recreational services provided by a local council such as swimming, aerobics and leisure facilities, will also be considered a 'service' under Part 4, Division 4 of the Equal Opportunity Act. In Slattery v Manningham City Council [2013] VCAT 1869 VCAT found provision by the council of access to the local library, swimming pool, toilets in council parks and other council buildings and facilities were services [29].

In Pulis & Banfield v Moe City Council (1986) EOC 92-170; (1988) EOC 92-243 the former Equal Opportunity Board considered a complaint in relation to discrimination in services by two men, who were refused entry to a recreation centre's 'women's night' for aerobics, sauna and swimming on Monday evenings. In that case the Board found the women's night did constitute discrimination.

This decision was made prior to the introduction of section 12 of the Equal Opportunity Act in relation to 'special measures'. Council recreational services including after-hours aerobics, swimming and other events specifically designed to cater for the needs of culturally and linguistically diverse groups (such as Muslim women) may be covered by the special measures provision in section 12. See the chapter on Special measures for a more detailed discussion.

In Casey Aquatic & Recreation Centre [2012] VCAT 893 the applicant applied for an exemption under section 89 of the Equal Opportunity Act. It wished to open the Casey Aquatic & Recreation Centre on any Friday evening (when it would otherwise be closed) between 8pm and 10pm for women, girls and boys aged up to seven years only. It also applied for an exemption to staff the centre with women only during those hours and to advertise that service. The particular focus was on providing a service to Muslim women and their children, and evidence was provided to support the need for the segregated services. VCAT found the Casey Aquatic & Recreational Centre did not require an exemption as the proposed services fell within the special measure provision of the Equal Opportunity Act, meaning the conduct would not be discriminatory.

Similarly, in Darebin City Council Youth Services v Victorian Equal Opportunity and Human Rights Commission [2011] VCAT 1693 the council applied for an exemption under section 89 of the Equal Opportunity Act to host two women's only events - to mark the end of Ramadan and to provide a music based social event. VCAT found the proposed conduct was a special measure under section 12 of the Equal Opportunity Act and no exemption was necessary.

Ignoring customers as refusal of service

Whitehead v Criterion Hotel (1985) EOC 92-129 considered circumstances where the complainant entered a hotel dining room with her three children and a friend. After changing dining rooms at the manager's request, the group waited for some time for service. The complainant began to breastfeed her youngest child. The manager again approached the group and displayed annoyance at the act of breastfeeding in a dining room. The group left the hotel after being ignored for another 10 minutes.

The Equal Opportunity Board found the refusal of service amounted to discrimination on the ground of parenthood, and the refusal of service included the ignoring of customers. However, no damages were awarded.

Ejection from a hotel due to drunkenness

In Cruikshank v Walker (1987) EOC 92-212 the complainant alleged discrimination on the ground of impairment after being told to leave the respondent's hotel and being barred from drinking at the hotel.

The complaint was based on an incident two years earlier, when the complainant had suffered a nervous breakdown that involved hospitalisation and psychiatric attention. During the breakdown, he had burst out crying at the bar and had been allowed to lie down for several hours at the hotel.

The hotel argued the complainant had been ejected from the hotel because he and his friends were drunk and noisy, and it was his behaviour while leaving that had led to him being barred.

The Equal Opportunity Board was satisfied the complainant's impairment was not a factor in the refusal of service by the hotel under the 1995 Act.

Provision of government accommodation and associated benefits

In Power v State of Victoria (1988) EOC 92-221 a man with a profound intellectual disability lodged a complaint that he was discriminated against in the provision of accommodation and services provided by the Victorian Government. The complainant's allegations concerned living conditions and access to training, recreational and other activities.

The Equal Opportunity Board held the respondent had discriminated against the complainant. It found particular activities had a bias towards persons with certain skills and against others who, as a result of their impairments, did not possess such skills. All other allegations of discrimination were dismissed. Although less favourable treatment had been established, it was not established this treatment was on the ground of the complainant's impairments.

The respondent was directed to review its activities and to provide additional unit- based activities to the complainant.

Services provided by police members

For the actions of police officers to be covered by the Equal Opportunity Act, members of the public alleging discrimination by police need to prove the discrimination occurred in the provision of 'goods and services'. The decision of Djime v Kearnes [2015] VCAT 941 clarifies the definition of 'services' in the Equal Opportunity Act in relation to policing [70][138].

Mr Djime made allegations against four police officers and Victoria Police, alleging discrimination based on race in the provision of goods and services, victimisation and sexual harassment. Mr Djime, originally from Mali, believed his treatment by police was racially motivated. The allegations arose out of many incidents arising between 2008 and 2013.

VCAT dismissed 21 of the 27 allegations for being misconceived or lacking in substance, or not falling within the definition of 'services'. Six allegations did proceed to hearing. These included allegations of being taken in a police van 'to the middle of nowhere' and allegations regarding the police response to an incident when Mr Djime was assaulted by his housemate and called police, but was asked by them to leave his home (rather than the housemate).

Member Dea set out the general principles determining when police activity will constitute a 'service' for the purposes of the Act. These principles include:

  • conduct that is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual
  • the fact that conduct might arise in the exercise of a statutory power or in the performance of a statutory duty might assist in identifying whether conduct falls within the meaning of a service, but is not determinative
  • a distinction can be drawn between services provided to the community at large, and an arresting officer's dealings with an alleged offender
  • police functions associated with the prevention and detection of crime when they intervene in situations where there is a disturbance of peace, or where an offence has been, or may be, committed are all services provided to the public at large and individuals who may suffer injury or harm are likely to be services under the Act. In those circumstances, the service might include other functions such as protecting persons from injury or death and restoring and maintaining peace and good order
  • police provide a service where they respond to a specific request for assistance, such as when an emergency call is made. Following this, a service may be provided to a person being asked to leave or move on when that is intended to diffuse a situation rather than because an offence is suspected of having been committed
  • police may have a public duty to provide services to an alleged offender who has been arrested by way of protecting the person from injury or death and protecting property from damage
  • investigating an alleged offence, questioning and arresting alleged offenders, dealing with bail applications, decisions to lay or prosecute charges and decisions on how matters will proceed in court, serving summonses, executing warrants are not services
  • in dealing with a situation or event, police may at some point in time cease to provide a service - for example, taking action to investigate a possible offense or deal with an alleged offender.

This decision provides clarity around when police activity will constitute a 'service' for the purposes of discrimination claims under the Equal Opportunity Act. Prior to this decision, Victorian case law only addressed situations where police conduct was not providing a service. It is now clear that police may be providing a service to the public at large, or to a specific individual in a range of circumstances. Importantly, the fact the police are exercising a statutory power does not necessarily prevent the conduct from being discriminatory.

The requirement under the Equal Opportunity Act to demonstrate policing constitutes a 'service' to receive the benefit of discrimination protections contrasts with the Charter of Human Rights and Responsibilities. The charter imposes obligations on public authorities such as Victoria Police to act compatibly with, and give proper consideration to, human rights in all acts and decisions.

In Kyriakidis v State of Victoria (Kyriakidis) [2014] VCAT 1039 the complainant was arrested by the police. He alleged when he repeatedly asked for a doctor, telling them 'he was sick, unwell and having a panic attack', the arresting officer ignored him. He later saw, in the notes by the arresting officer, a note observing he had 'possible psych issues'. He considered 'this should have put them on notice as to his disability' [19]-[22].

In Kyriakidis, VCAT found it was not possible to construe the activities that the complainant complained of as 'services' being provided to him. VCAT agreed with the conclusions on this point in Rainsford v State of Victoria [2000] VCAT 2496 and Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770:

The relevant question was whether the acts constituting the service were helpful or beneficial to a group to which the person alleging discrimination belongs. In this case, the acts of an arresting police officer would not be characterised as being helpful or beneficial to the individual being arrested [and]...
 
[I]n deciding whether to characterise an activity as a 'service' to focus on whether the services are being provided or refused to that person in particular - that is the person claiming discrimination (Kyriakidis [19]-[20]).

As set out in Djime, there are circumstances in which it could conceivably be argued the police do provide services in the sense envisaged by the Equal Opportunity Act, such as to victims of crime. This distinction was approved in Field Meret v State of Victoria [1999] VCAT 615. In that case VCAT held in fulfilling their duty to investigate crime, the police do not provide a service to any individual.

Services provided to prisoners

This issue has arisen in a number of cases and the answer will depend on the particular factual circumstances.

In the case of Garden v Victorian Institute of Forensic Mental Health [2008] VCAT 582 VCAT held the following were not services provided to the complainant, a prisoner at the hospital:

  • reports made to the Adult Parole Board. VCAT considered the provision of the reports was a service, however, the service was provided to the Board, not to the complainant. The reports were not for treatment purposes and no copy of them was provided to the complainant
  • the continued presence of a particular staff member in the ward in which the complainant was located despite the complainant's requests that he be removed. VCAT considered the true nature of the service provided was the provision of nursing services to each patient, and not the provision of a particular individual as primary nurse, or the provision of a primary nurse chosen by the complainant.

VCAT found, however, that the sending and receiving of mail was a service provided to prisoners.

In Egan v State of Victoria [2011] VCAT 1364 VCAT found Corrections Victoria did not provide a service in classifying a prisoner and in separating him from other prisoners, dismissing the proceeding under section 75 of the VCAT Act [24]-[26]). The actions of prison staff in classifying Mr Egan and separating him from other prisoners were found to be functions of maintaining the management, security and good order of the prison and of administering Mr Egan's sentence of imprisonment, rather than conducting an activity of help or benefit to him. These activities were inherent parts of his incarceration and were not services provided to him.

The findings in Egan can be contrasted with the NSW cases of Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 and Whiteoak v State of New South Wales [2014] NSWCATAD 45. In both these cases, brought under Anti-Discrimination Act 1977 (NSW), the NSW Civil and Administrative Decisions Tribunal found the classification of prisoners is a service, because it can be characterised as helpful and beneficial to inmates.

In Charles v State of Victoria [2015] VCAT 375 VCAT approved Egan. VCAT listed a number of activities considered not to be services and left the question open regarding whether a range of other items could be services. The critical factor for determining a service was whether the prisoner was provided a benefit, or whether, as in Egan, the act was part of the security and order or the prison, or an inherent part of incarceration. The matters that VCAT found to not be a service included complaints about:

  • decisions made in relation to disciplinary and security issues
  • a urine screen drug test and ill treatment after a positive test
  • a change to a personal security rating
  • rules with regard to hair clippers
  • decisions made regarding where Mr Charles was located within prisons
  • conduct of prison officers towards Mr Charles
  • the conduct of other prisoners towards Mr Charles
  • provision of standard food to prisoners (although there is an arguable exception where special food is provided to an individual prisoner based on medical advice) [55]-[60].

See also Mahommed v State of Queensland [2006] QADT 21.

In Charles v State of Victoria [2015] VCAT 375 VCAT found conduct that may amount to a service included:

  • the prison's refusal to allow an application to perform volunteer work in the Prison Visit Centre Canteen
  • complaints about medical treatment
  • complaints related to access to telephone, problems with lost property [60].

The Federal Court decisions of Rainsford v State of Victoria (at first instance - Rainsford v Victoria[2007] FCA 1059, and on appeal to the Full Court - Rainsford v State of Victoria [2008] FCAFC 31), considered a complaint by a prisoner made against Corrections Victoria under the Disability Discrimination Act 1992 (Cth).

The complainant claimed the bed he was required to sleep in was inappropriate for his impairment, a prolapsed disc in his back, and that transport without breaks to enable him to stretch aggravated his impairment. One of the questions posed in this case was whether Corrections Victoria provided the prisoner with transport services or accommodation.

At first instance (Rainsford v Victoria [2007] FCA 1059), Justice Sundberg held the activities of transport between prisons and cell accommodations were not 'services' to the complainant, but rather were basic and inherent aspects of prison incarceration. In making these findings, Justice Sundberg observed although some government functions are undoubtedly services, not all of them are. Whether a government function is a service will be determined by the particular circumstances of the case.

On appeal (Rainsford v State of Victoria [2008] FCAFC 31), the Full Court considered it was unnecessary to decide whether Justice Sundberg erred in his interpretation of what constitutes a 'service'. However, the Full Court did note, while the issue was not argued in depth, there was 'some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility' [9].

Section 32(1) of the Charter of Human Rights and Responsibilities imposes a duty to interpret legislation consistently with human rights. This means an interpretation of 'services' in the Equal Opportunity Act that limits prisoners' access to equality and anti-discrimination rights would be less likely to be adopted by VCAT or the Victorian Supreme Court in future cases.

In Mahommed v State of Queensland [2006] QADT 21 the Queensland Anti-Discrimination Tribunal held the Corrective Services Department indirectly discriminated against a Muslim prisoner, Mr Mohammed in the provision of goods and services on the basis of religious belief or activity. Mr Mahommed was required to eat general prison fare (without fresh halal meat) during the first three months of his prison term. The Tribunal held the fact that Mr Mohammed was serving a long prison sentence was a very relevant consideration as to the reasonableness of the requirement to eat standard prison fare [58].

Services provided by an owners' corporation

In Anne Black v Owners Corporation OC1-POS539033E [2018] VCAT 185 Ms Black lived in an apartment she had owned since December 2013. She later developed disabilities that required her to use a wheelchair, scooter or sometimes crutches move around. Ms Black had difficulty accessing her home on the fourth floor of the apartment building because she was unable to operate the doors in the building, including entry doors from the street and car park and a car park ramp. The complainant sought an order that the owners' corporation was responsible for making alternations to the common property, including modification of the doors and the ramp to the car park. The owners' corporation argued they were not responsible for making the alterations but said it was were willing to allow Ms Black to make the alterations if she paid for them herself, in accordance with section 56 of the Equal Opportunity Act. VCAT found the owners' corporation provided services to the complainant for the purposes of section 44 and section 45 of the Equal Opportunity Act.

The owners' corporation sought leave to appeal against the VCAT decision. On appeal to the Supreme Court ( Owners Corporation OC1-POS539033E v Black [2018] VSC 337), Justice Richards found the definition of 'services' under section 4 of the Equal Opportunity Act included the activities of an owners' corporation in managing, administering, repairing and maintaining common property. This means that owners' corporations are required to perform the obligations of a service provider, including the need to make reasonable adjustments. Importantly, the Supreme Court found owners' corporations could play a dual role as both a provider of services under section 44, and accommodation under section 56 of the Equal Opportunity Act. The Court found these sections do not negate each other, and there is no inconsistency in both these sections applying in a particular circumstance.

The matter was returned to VCAT for decision (Black v Owners Corporation OC1-POS539033E and Owners Corporation OC3-POS539033E (Human Rights) (Corrected) [2018] VCAT 2014). VCAT found that the owners' corporation had not made reasonable adjustments for Ms Black. VCAT ordered that the owners' corporation carry out certain specified adjustments to the building to accommodate the Ms Black's needs. In addition, VCAT ordered the owners' corporation pay $10,000 in compensation to Ms Black for her suffering.

Volunteers who receive and provide services

Section 4 of the Equal Opportunity Act specifically excludes volunteers and unpaid workers from its definition of employees (except for the purposes of sexual harassment. See Nason v RVIB [2002] VCAT 403). However, in keeping with the notion of reciprocal services endorsed in Falun Dafa v Melbourne CC [2003] VCAT 1955, and with the broad application of the term 'services', volunteers can be considered to both receive and provide services within the meaning of the Equal Opportunity Act. A volunteer who has contact with others in their volunteer role may provide a service to another person, and their conduct while providing these services will be subject to the Equal Opportunity Act. For example, see Buljan v Ethnic Broadcasting Association of Victoria Ltd [2000] VCAT 2020. (See Protection of volunteers in 'employment' for related discussions). A volunteer in an organisation can also receive services from that organisation, such as training.

Exceptions relating to the provision of goods and services and disposal of land

The exceptions that make discrimination in the provision of goods and services lawful under the Equal Opportunity Act, discussed in the section on Exceptions relating to the provision of goods and services, and the disposal of land, relate to:

  • adjustments for a person with disabilities that are not reasonable (section 46)
  • offering insurance, or the terms on which an insurance policy is provided (section 47)
  • offering or refusing an application for credit (section 48)
  • requiring adult supervision as a term of providing goods and services to a child (section 49)
  • the disposal of land by will or gift (section 51).

Discrimination in accommodation

Part 4, Division 5 of the Equal Opportunity Act makes it unlawful to discriminate in relation to accommodation. The Equal Opportunity Act prohibits a person from discriminating against another person in:

The Equal Opportunity Act also prohibits discrimination by refusing to:

  • provide accommodation to a person with a disability because they have an assistance dog, or by requiring the person to pay an extra charge or to keep the assistance dog elsewhere (section 54)
  • allow reasonable alterations to be made to accommodation to meet the special needs of a person with a disability (section 55). A number of conditions apply to these obligations, including that the adjustments to the accommodation must be made at the expense of the person with the disability and not unduly impact other occupiers
  • in relation to lots affected by an owners' corporation, allow reasonable alterations to be made to common property to meet the special needs of a person with a disability (section 56).

What 'accommodation' means

Section 4 of the Equal Opportunity Act defines 'accommodation' as including:

a) business premises;
b) a house or flat;
c) a hotel or motel;
d) a boarding house or hostel;
e) a caravan or caravan site;
f) a mobile home or mobile home site;
g) a camping site.

Accommodation should be looked at broadly and given a wide interpretation, as found in Burton v Houston [2004] TASSC 57 [18]-[23]. It expressly covers the most obvious categories such as renting houses, apartments and hotel rooms, but also extends to areas such as camping, caravan and mobile home sites and property intended to be used for business purposes.

Discrimination in offering to provide accommodation

Under section 52, a person must not discriminate against another person:

a) by refusing, or failing to accept the other person's application for accommodation
b) in the way in which the other person's application for accommodation is processed
c) in the terms on which accommodation is offered to the other person.

Discrimination in providing accommodation

Section 53 of the Equal Opportunity Act provides that a person must not discriminate against another person:

a) by varying the terms on which the accommodation is provided to the other person
b) by denying or limiting access by the other person to any benefit associated with the accommodation
c) by evicting the other person from the accommodation
d) by refusing to extend or renew the provision of accommodation to the other person
e) in the terms on which the provision of accommodation to the other person is extended or renewed
f) by subjecting the other person to any other detriment in connection with the provision of accommodation to that person.
 

Examples of discrimination in the provision of accommodation

The following circumstances have been found to give rise to unlawful discrimination in the provision of accommodation:

  • refusing to allow a family with teenage sons to book holiday park accommodation
    See Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049
  • refusing to rent premises to be occupied by women without husbands and their children
    See Calman v Haloulos (1986) EOC 92-163
  • refusing to hire a caravan to people of a certain ethnic background
    See Bull v Kuch [1993] HREOCA 15
  • using tenancy application forms that included discriminatory questions, such as, 'Are you single, married, divorced, widowed, separated?'; 'What are your child care arrangements?'
    See Calman v Haloulos (1986) EOC 92-163
  • refusing to rent a flat to two adults because they are both men
    See Wagen v Nicholas Moss (Vic) Pty Ltd (1985) EOC 92-121.

In Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049 the respondent, a caravan park operator, was alleged to have discriminated against the complainant by refusing the complainant's holiday booking because he and his wife had two sons (one adult and one older teenager), who were also to come on the holiday.

The complainant had telephoned the respondent to make an enquiry about booking a caravan site over the summer holidays. The complainant was advised a site was available, and several days later, drove to Blairgowrie to confirm the booking and pay the required deposit. The complainant alleged on arriving at the caravan park and informing the respondent the ages of his two sons, 18 and 21 years old, the respondent stated because the children were young adults, the complainant's family did not fit in with the park's clientele. The respondent allegedly stated he preferred middle aged couples with young children, and that he could not help the complainant with a booking.

At hearing, the respondent gave evidence he believed the caravan park would not be suitable for the complainant's family because he thought the complainant's sons would not enjoy spending all of the holiday with their parents. He stated the only issue he had with the ages of the complainant's sons was in relation to the tariffs to be charged.

VCAT was satisfied a substantial reason for the respondent's refusal to provide accommodation to the complainant was because he intended to bring his two sons on the holiday. This amounted to direct discrimination and breached both the prohibition against discrimination in offering to provide accommodation and the prohibition against discrimination in the provision of goods and services (the offering of accommodation being a service). While VCAT did not consider the circumstances sufficient to warrant an award of aggravated or exemplary damages, VCAT did award the complainant damages of $1,000 for distress, hurt and humiliation.

In Bull v Kuch [1993] HREOCA 15 the respondent operated a business providing emergency caravan hire accommodation.(6) When a council officer sought to obtain emergency accommodation for the complainants, an Aboriginal couple, the first respondent replied 'she would not rent to 'Aboriginals' under any circumstances whatsoever' (page 3). When the first respondent was told by the council officer that her refusal might amount to discrimination, she replied she did not care. The Australian Human Rights and Equal Opportunity Commission described the case as a 'serious and significant case of blatant racial discrimination' (page 8), particularly as the refusal arose in emergency circumstances, and ordered the owners to pay the complainants compensation of $20,700.

In Calman v Haloulos (1986) EOC 92-163 two women seeking new premises for a women's refuge answered an advertisement for a rental property. The respondent, whose daughter owned the property, intimated to one of the complainants that they would not be able to afford the rent, and suggested she come back with her husband. When she replied she had no husband, the respondent asked her to leave. When advised of the complainants' intention that four women and two children would live in the property, the respondent told all the women present to leave. VCAT held the respondent had treated the women less favourably than applicants who were married couples, and had not made any enquiries about the complainants' ability to pay the rent.

In the case of Wagen v Nicholas Moss (1985) EOC 92-121 the complainant, a single male who sought to rent a house with a male friend, was advised by the real estate agent that his application was unsuccessful because the owner had requested the property be leased to a 'happy family'. The complainant was told the house would be re-advertised and his application might be reconsidered if no suitable applicant responded to the advertisement. Eventually, the complainant was told his application had been unsuccessful, forcing him to rent another house on less favourable terms (higher rent and a shorter lease).

VCAT held the real estate agent had discriminated against the complainant on the ground of marital status by rejecting his application and giving it a lower order of precedence than other applications. The damages awarded took into account the extra rent and shorter lease of the house the complainant ended up leasing. No order was made against the owner of the house.

In Owners Corporation OC1-POS539033E v Black [2018] VSC 337 (21 June 2018) the Supreme Court held owners' corporations could perform a dual role in providing a service under section 44 as well accommodation under section 56 of the Equal Opportunity Act. See Services provided by an owners' corporation above for a more detailed discussion.

Protection for people with assistance dogs in accommodation

Assistance dogs

An 'assistance dog' is defined under section 4 of the Equal Opportunity Act as a dog that is trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his or her disability. This is a shift away from the more limited term 'guide dog' used in the 1995 Act.

According to the Explanatory Memorandum, the definition of 'assistance dog' may include, for example, a dog trained to assist people who suffer from seizures or psychiatric disorders. However, the Explanatory Memorandum also confirms that the definition is not intended to be so broad to encompass companion or comfort dogs, but may extend to animals trained to assist with 'navigating social interactions where the nature of the impairment is such that this helps to alleviate the impairment'.

In State of Queensland (Queensland Health) v Che Forest [2008] FCAFC 96 [106]; [2008] FCAFC 96; (2008) 168 FCR 532 Justices Spender and Emmett considered the meaning of 'assistance animal' under the Disability Discrimination Act 1992 (Cth). They said the question is not whether a dog assists a complainant to alleviate the effects of a disability, but whether the animal was trained with that purpose or object in mind. In that case, Queensland Health reported the complainant's dogs were ill behaved and ill controlled, so requested evidence of the dogs' training. In their reasons, Justices Spender and Emmett suggested a complainant may need to provide evidence of proper assistance dog training, where the existence or quality of training is in question [118].

In Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCCA 157 the Federal Circuit Court of Australia considered civil aviation regulations that required an assistance animal to be trained by an approved organisation. A passenger with cerebral palsy who relied on a dog to assist him with his balance, hearing and sight difficulties advised an airline that he wished to be accompanied by his assistance dog on a flight. The airline refused to allow the dog into the aircraft cabin, citing the dog's lack of approved training and accreditation. The Court found the dog was excluded in accordance with a prescribed law and that allowing the dog to travel would have imposed an unjustifiable hardship on the airline because doing so would be contrary to the regulatory requirements and a potential offence [18].

Refusing accommodation to a person because they have an assistance dog

Discrimination against someone because of their assistance dog can be discrimination on the basis of the disability if it occurs in any area of public life. See, for example, See eg. Phillips v Andrews (Human Rights) [2018] VCAT 1714.

Section 54 of the Equal Opportunity Act specifically provides that a person must not refuse to provide accommodation to a person with a disability because he or she has an assistance dog. In particular, it is unlawful to require a person with a disability to keep the dog elsewhere (other than in the accommodation) or to require the person to pay an extra charge because of the dog. Section 54 is a stand-alone provision and does not require proof of direct or indirect discrimination as defined under section 7(1)(b).

Other discrimination in connection with accommodation

A number of cases have considered broader connections between the provision of accommodation and unlawful discrimination.

For example, the federal case of Ross v Loock [2000] HREOCA 6 considered circumstances where a landlord, his female tenant and others were socialising together in the landlord's unit. At the end of the evening when the other guests left, the landlord asked the tenant to stay behind to discuss something. He then made unwelcome sexual advances on the tenant. Soon after, the landlord terminated the tenancy. The Commission found the landlord's conduct was unlawful sexual harassment because the landlord was her accommodation provider. It was held in this case that the landlord had sexually harassed the tenant in the course of providing accommodation.

The case of Houston v Burton [2003] TASADT 3 considered complaints about noise in connection with accommodation. In that case, the complainant and respondent were neighbours and shared a balcony in an apartment complex. The complainant had complained to the respondent about noise levels in the apartment complex. The respondent later started shouting vilifying statements at the complainant while on their shared balcony, on the basis that she was transgender. The Tasmanian Anti-Discrimination Tribunal considered section 22(1) of the Anti-Discrimination Act 1998 (Tas), which prohibits discrimination in any activity in connection with protected areas of public life, including accommodation. The Tribunal found at the time of the conduct complained of, the complainant was undertaking an activity in connection with accommodation within the meaning of the legislation (section 22 of the Anti-Discrimination Act 1998 (Tas)). This was because the complainant was engaged in the activity of speaking to the respondent about his conduct as her neighbour, which was impacting on the quality of her accommodation. On appeal ( Burton v Houston [2004] TASSC 57), the Supreme Court of Tasmania upheld the Tribunal's findings. Justice Blow considered section 22(1) applies to anyone who has any contact with someone who is engaged in or undertaking an activity that has some degree of connection with one of the matters listed in section 22 - in this case, accommodation.

In the case of H v G [2010] TASADT 5 the Tasmanian Anti-Discrimination Tribunal considered applying the prohibition against discrimination in accommodation to people in a personal relationship living under the same roof, would stretch the connection too far. The Tribunal considered the conduct complained of, namely Mr G's treatment of Ms H, related to their relationship. Although the fact they lived together facilitated Mr G's conduct, the Tribunal did not believe the alleged discrimination was sufficiently connected with accommodation to properly bring the claim within unlawful discrimination in accommodation. Distinguishing Burton v Houston [2004] TASSC 57, the Tribunal considered the only connection was that the parties shared accommodation, and Mr G considered Ms H should do all of the housework. The connection to accommodation must be clear and cogent for the prohibition to apply.

Accommodation services provided to prisoners by Corrections Victoria

In NC, AG, JC, SM, Matthews & Matthews as personal representatives of the Estate of Matthews v Queensland Corrective Services Commission (1998) EOC 92-940, the Queensland Anti-Discrimination Tribunal considered complaints on behalf of five prisoners that the respondent had discriminated against them in accommodation on the basis of their HIV positive status. The allegations of discrimination included being housed in a medical segregation unit, not being given the option to work in the kitchen at the prison, and for a time not being permitted to attend the oval at the same time as the mainstream protection prisoners. Applying Hoddy v Executive Director, Department of Corrective Services (1992) EOC 92-397, the Tribunal noted it is open to a prisoner to complain of discrimination in the provision of services or facilities, accommodation and work (that is, work at the prison). The Tribunal found the treatment of the complainants in the correctional centres was less favourable than that of other prisoners who were not HIV positive, so the respondent was in breach of the Anti-Discrimination Act 1991 (Qld).

Discrimination in access to public premises

Section 57 of the Equal Opportunity Act prohibits discrimination on the basis of disability in relation to access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether or not for payment). This prohibition includes discrimination:

  • by refusing to allow access to, or use of, the premises or any facilities in the premises (section 57(1)(a)-(d))
  • in the terms or conditions on which a person is allowed access to, or use of, the premises or facilities in the premises (section 57(1)(b)(e))
  • in providing the means of access to the premises (section 57(1)(c))
  • by requiring a person to leave or cease use of any facilities in the premises (section 57(1)(f)).

For the purpose of these provisions, 'premises' includes a structure, building, aircraft, vehicle, vessel, a place and a part of premises (section 57(2)).

Exceptions relating to the provision of accommodation and access to public premises

Several exceptions make it lawful to discriminate in the provision of accommodation and access to public premises (discussed in Exceptions relating to the provision of accommodation and access to public premises). The exceptions relate to:

  • accommodation that is unsuitable or inappropriate for occupation by a child because of its design or location (section 58A)
  • shared rental accommodation (section 59)
  • accommodation provided by a hostel or similar institutions for the welfare of persons of a particular sex, age, race or religious belief (section 60)
  • accommodation for students (section 61)
  • accommodation for commercial sexual services (section 62)
  • access to, or use of, public premises that is not reasonable (section 58).

Access to cinema

In the case of Hall-Bentick v Greater Union Organisation Pty Ltd [2000] VCAT 1850 VCAT found the respondent had indirectly discriminated against the wheelchair-bound complainant by not providing wheelchair access to him in its cinemas and cinema facilities such as bathrooms. VCAT required the respondent to modify its premises and screening practices to ensure all discriminatory circumstances were eliminated, and to screen latest release films in the smaller theatre that had wheelchair access.

Discrimination in clubs

What a 'club' means

Section 4 of the Equal Opportunity Act defines a club by reference to:

  • the number of members (i.e. more than 30)
  • whether the members are associated together for social, literary, cultural, political, sporting, athletic or other lawful purpose
  • whether it has a licence to supply liquor
  • whether it operates its facilities wholly or partly from its own funds.

The definition does not extend to temporary limited licences and major event licences issued for events over a limited period or for one-off events, as outlined in the Explanatory Memorandum (page 6).

The definition differs from the definition of club in the 1995 Act. The change aimed to bring the concept of what is a club, and thus what falls within the jurisdiction of the Equal Opportunity Act, into line with similar definitions under federal anti-discrimination laws (the Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth) .

As a consequence, in Pines Community Men's Shed declaration [2013] VCAT 1878, VCAT was satisfied no exemption was required to exclude women from becoming members of a men's shed or its committee of management as the men's shed did not have a liquor licence, and did not fall within the meaning of a club

Similarly, in Bakopoulos v Greek Orthodox Parish of Mildura [2014] VCAT 323 VCAT dismissed a claim of discrimination for the refusal of a parish to grant financial membership to a female congregant because there was no area in the Equal Opportunity Act that applied to her claim. VCAT noted the complainant's claim that she was denied the 'opportunity to become a participant in the governance arrangements of the Parish', rather than to receive or participate in a religious or spiritual service, was more closely associated with a club than a service. However, as a liquor licence is a prerequisite to the definition of a club and the Parish did not hold a liquor licence, her claim did not fall within this area [20].

Associations that fall within this definition cannot discriminate against existing or prospective members of the club, unless an exception applies.

There is no separate definition for voluntary bodies in Victoria, nor any requirements regarding incorporation or non-incorporation of clubs.

Discrimination against applicants for membership

Subject to the relevant exceptions, Part 4 Division 6 of the Equal Opportunity Act prohibits discrimination against applicants for club membership (section 64) and club members (section 65).

Section 64 of the Equal Opportunity Act provides that:

A club, or a member of the committee of management or other governing body of a club, must not discriminate against a person who applies for membership of the club--
a) in determining the terms of a particular category or type of membership; or
 
b) in the arrangements made for deciding who should be offered membership; or
 
c) by refusing or failing to accept the person's application for membership; or
 
d) in the way the person's application for membership is processed; or
 
e) in the terms on which the person is admitted as a member.

Discrimination against club members

Further, under section 65 a club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club by:

a) refusing or failing to accept the member's application for a different category or type of membership
 
b) denying or limiting access to any benefit provided by the club
 
c) by varying the terms of membership
 
d) by depriving the member of membership
 
e) by subjecting the member to any other detriment.

Examples of discrimination in clubs

Exclusion from club due to race

In Toledo v Eastern Suburbs Leagues Club Ltd [1992] HREOCA 22 the complainant and his party of Japanese visitors sought entry to the club. A heated altercation took place between the complainant and the club doorman when the visitors were unable to produce adequate identification. The complainant alleged he and his visitors were refused entrance to the club on the basis of their race.

The Australian Human Rights Commission considered it unlikely that management of the club was influenced by racist attitudes. The Commission noted the club had a multicultural membership and that the doorman had been employed at the club for 22 years. Rather, the incident was due to an inflexible application of identification rules. No mention was made of race or national origin as a cause of the refusal. There was also no suggestion of racist remarks other than that made by the complainant.

The Federal Commission recommended the club apologise to the complainant.

Refusal of club membership due to marital status

In Ciemcioch v Echuca-Moama RSL & Citizens Club Ltd [1994] HREOCA 2 the Australian Human Rights Commission found in rejecting the complainant's application for club membership, the club had discriminated against her on the ground of her marital status.

The complainant argued her application was rejected because of hostility toward her husband, who had been involved in a dispute with the club ending in legal action. The club argued their decision to reject her application was based on negative comments and views the complainant had made about the club and not on her marital status.

The Commission favoured a liberal construction of the definition of marital status in section 6 of the Sex Discrimination Act 1984 (Cth) and held the presence of the characteristics of loyalty and support in interpersonal relationships other than marriage did not prevent their classification as characteristics pertaining generally to a person's marital status.

The Commission considered there was enough evidence to raise a suspicion in the mind of the complainant that she had been discriminated against, and that suspicion was more than just a fanciful one. The club was ordered to reconsider the complainant's application to join the club, and to pay her $3,000 damages by way of compensation.

Refusal of club membership due to political belief

Section 4 of the Equal Opportunity Act defines political belief or activity as:

a) holding or not holding a lawful political belief or view;
 
b) engaging in, not engaging in or refusing to engage in a lawful political activity.

This is the same definition that was in the 1995 Act.

The Supreme Court in Tasmania considered the implications of discrimination on the grounds of political belief or activity in relation to the refusal of club membership. In Lindisfarne R & SLA Sub-Branch and Citizen's Club Inc and Another v Buchanan [2004] TASSC 73; (2004) 80 ALD 122 Mr Buchanan claimed the Sub-Branch and the Citizen's Club had discriminated against him on the grounds of his political beliefs when he tried to join the clubs. Mr Buchanan was required to sign a declaration that he was prepared to swear or affirm loyalty to the sovereign of the Commonwealth, and that he would uphold the Constitution of the Commonwealth, which was a precondition for membership of the clubs.

Mr Buchanan was a republican. He considered it hypocritical for him to swear loyalty to the monarch and amended his application to swear loyalty to the Commonwealth. His application was rejected on this basis, because it did not comply with the prescribed requirements for eligibility for membership. Mr Buchanan brought a claim that he had been discriminated against on the basis of his political beliefs. The Anti-Discrimination Tribunal of Tasmania upheld his claim. The clubs appealed this decision to the Supreme Court of Tasmania.

The Supreme Court found the monarchist aspect of the clubs' objectives did not negate the attraction of membership for some republicans. For this reason, it found the membership requirement disadvantaged those republicans barred from membership because they could not meet the requirement. The Court was satisfied that otherwise qualified applicants for membership being unable to reconcile their republican beliefs with the membership requirement was an identifiable ground. It found the requirement disadvantaged those holding that political belief more than those who were not a member of that political group. On that basis, the appeal was dismissed, and the finding of unlawful discrimination was upheld.

Club playing times

Corry v Keperra Country Golf Club (1986) EOC 92-150 considered the case of a Queensland golf club that had limited the number of highly sought-after Saturday tee-off times available for women members. No limit was applied to male members. The restriction meant only eight women could play on Saturday, and only at designated times, whereas men were able to tee-off at all other times.

The female members complained the restriction constituted unlawful sex discrimination under section 25(2)(c) of the Sex Discrimination Act 1984 (Cth) because it limited the female members' 'access to any benefit provided by the club'.

The club relied on an exception under section 25(4) of the Sex Discrimination Act 1984 (Cth) (identical to section 69 of the Equal Opportunity Act) that provided the discrimination complained of would not be unlawful if:

  • it is not practicable for the benefit to be used or enjoyed to the same extent by both men and women (First Limb)
  • either the same or an equivalent benefit is provided for the use of men and women separately from each other, or men and women are each entitled to a fair and reasonable proportion of the use and enjoyment of the benefit (Second Limb).

The Equal Opportunity Commission found the opportunity to tee-off on a Saturday was a benefit and that female members' access to this benefit had been restricted. The commission was not persuaded by the club's argument that it would be impracticable to have more than two women's' tee-off times on a Saturday because the men participate in a separate competition on that day.

The commission found it was practicable for the benefit to be used by men and women to the same extent, noting that the question of practicability is different from 'whether it is desirable, or whether the committee may think it desirable, that the men members should have a greater use of the course on the Saturday'. (See Corry v Keperra Country Golf Club (1986) EOC 92-150.) The restricted playing times were held to constitute sex discrimination because women had their access to a benefit of the club limited, and did not receive a fair and reasonable proportion of use of the benefit (even allowing that fewer women played golf than men).

Because the First Limb of the exception was not made out, the discrimination was unlawful and the commission was not required to rule on the Second Limb, regarding whether men and women members were each entitled to 'a fair and reasonable proportion of the use and enjoyment of the benefit'.

The club had argued the availability of two tee-off times was a fair and reasonable proportion given the respective numbers of men and women that were likely to wish to play the course on a Saturday. However, the chairman of the commission expressed doubt that the club's arrangements met the 'fair and reasonable proportion' test in the Second Limb of the exception.

The commission declared the club must permit all members, regardless of sex, to sign up in single sex groups, choosing tee-off times on a 'first-come, first-served' basis.

Exceptions relating to discrimination by clubs and club members

Discrimination by clubs and club members may be lawful under several exceptions (discussed in Exceptions relating to clubs), including:

Discrimination in sport

The Equal Opportunity Act prohibits discrimination in sport. Specifically, under section 71 of the Equal Opportunity Act, it is unlawful to discriminate against a person on the basis of a protected attribute (for example, disability, sex or race) by:

a) refusing or failing to select them in a sporting team
b) excluding them from participating in a sporting activity.

What 'participating in a sporting activity' means

'Participating in a sporting activity' is broadly defined to include the activities of people who are themselves not 'playing' the particular sport - for example, coaching, umpiring or refereeing, and participating in the administration of a sporting activity (section 70).

What 'sport' and 'sporting activity' mean

'Sport' and 'sporting activity' have their ordinary meaning, and section 70 of the Equal Opportunity Act expressly states that they include a game or a pastime.

In the past, VCAT has confirmed the ordinary meaning of sporting activity includes activities that may normally be regarded as recreational rather than purely sporting, and includes non-competitive games where physical athleticism is not a factor.

In Robertson v Australian Ice Hockey Federation [1998] VADT 112 Deputy President McKenzie summarised the scope of 'sport' in considering a complaint by Ms Robertson that, on the basis of her sex or age, she was banned by the federation from playing ice hockey, unless she played in a women's competition. Deputy President McKenzie noted:

[T]he ordinary meaning of 'sporting activity' is expanded to include certain activities that would normally be regarded as recreational rather than sporting, and to include non-competitive games and games where physical athleticism is not a factor. The breadth of the term is made clear in the explanatory memorandum speech for the bill which eventually became the Equal Opportunity Act 1995. The memorandum pointed out that 'sporting activity' could include activities such as chess or debating.

The Explanatory Memorandum to the Equal Opportunity Bill 2010 also makes clear that 'sporting activity' includes games and pastimes like chess and debating (page 70).

Interaction with other provisions

Where a complaint may be lodged in the 'sport' area, there may also be the potential for a complaint to be lodged in the 'services' or 'clubs' areas.

It is unlawful for a club, or a member of a club, committee or management body, to discriminate against a person on the basis of a protected attribute by denying them membership to a club or in the terms on which the person is admitted as a member (section 64). This could include opportunities to be involved in sporting activities, as was the case in Robertson v Australian Ice Hockey Federation [1998] VADT 112.

It is also unlawful to discriminate against a person on the basis of a protected attribute by refusing to provide goods or services to them, or in the terms on which goods or services are provided. Arguably this would include, for example, a sporting body refusing to provide the same range of sporting equipment to a women's cricket team as for the men's team, or offering competition or training opportunities to one sex only.

The provision of sporting facilities, as well as access to sporting teams and competitions, can be considered to be provision of services.

Exceptions relating to competitive sporting activity

Section 72 of the Equal Opportunity Act 2010 provides an exception to discrimination on the basis of sex and gender identity for competitive sporting activities where strength, stamina or physique of competitors is relevant. It also permits a person to exclude or restrict participation of people of one sex in competitive sporting activity where participation is necessary for progression to an elite level competition or to facilitate participation by people of a particular sex in certain circumstances. An exception also exists to restrict participation to people who can effectively compete, to people of a specified age or age group and to people with disability.

This exception is discussed in Exceptions for competitive sporting activities.

Discrimination in local government

Part 4, Division 8 of the Equal Opportunity Act makes it unlawful to discriminate in local government. Specifically, section 73 of the Equal Opportunity Act prohibits a councillor of a municipal council in the performance of his or her public duties from discriminating against:

a) another councillor of that council
 
b) a member of a committee of that council who is not a councillor of that council.

To the extent that local governments provide services or employ staff, their activities are also covered by other parts of the Equal Opportunity Act.

In the case of Evans v Brimbank CC [2003] VCAT 1904 a local councillor complained individual fellow councillors had discriminated against him on the basis of his impairment when they refused to grant him leave of absence from a number of council meetings. The refusal occurred in circumstances where leaves of absence had been routinely granted to other councillors when requested. The complainant indicated the reason for his absences was his stress-related illness. The council had put the complainant on notice that if he wished to be granted leaves of absence, some evidence of his medical condition would be needed, together with an indication as to when he would be able to resume duties. This information was not provided. Ultimately, after the complainant missed four meetings without leave being granted, an extraordinary vacancy was declared and a by-election was triggered for the councillor's area.

Senior Member Lyons noted the complainant had not provided medical certificates indicating that he was unfit to attend meetings, and had not indicated when he would be able to resume attendance. VCAT considered providing such information would not have imposed an unreasonable burden on the councillor.

In circumstances where the councillor appeared capable of attending other council-related events and making media comments in his capacity as a councillor, VCAT considered the complainant's actions led to the stated reasons for his absences legitimately being called into question.

For these reasons VCAT determined, in all the circumstances, the councillors had not unlawfully discriminated against the complainant councillor.

Exceptions relating to local government

Section 74 of the Equal Opportunity Act provides an exception to discrimination by councillors on the basis of political belief or activity. This exception is discussed in Exceptions relating to local government.

Notes

1 : Note these exceptions have been removed from the Equal Opportunity Act; claims could now be made under section 20 of the Equal Opportunity Act.

2 : Section 65 of the Fair Work Act 2009 (Cth) contains similar obligations, although a person may make a request only if they are: a parent or carer of children who are school age or under; a carer; an employee with a disability; or an employee who is experiencing family violence or caring for those who experience family violence.

3 : Section 4 of the Equal Opportunity Act defines 'work arrangements'. Broadly, it encompasses arrangements that apply or would apply to the individual as well as the workplace.

4 : Victoria, Parliamentary Debates, Legislative Assembly, 11 October 2007, 3468 (Bob Cameron).

5 : The new tickets were to be bought from retail shops and validated by the traveller making a scratch mark in designated places to show the journey being undertaken. Each of the nine complainants suffered from a disability making it 'exceedingly difficult, if not impossible, to use scratch tickets' (Mason and Gaudron JJ).

6 : See also Smith v Jamsek [2012] NSWADT 3.


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