Both of VCAT’s recent EOA exemption decisions were decided on the same day and both took the same inordinate time to appear on Austlii. Fortunately, the second decision, by VCAT Vice President Marilyn Harbison, has a much better Charter analysis, indicating, if nothing else, that there’s not a lot of equal protection against discrimination going on within VCAT.
The issue again is gender discrimination, this time in the world of elite lawn bowls. The origin of the exemption application was two earlier decisions of VCAT. The first ruled that lawn bowls, unlike Aussie Rules, didn’t fall within the EOA’s built-in exemption for gender discrimination in sport:
66(1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
This decision split the world of Victorian Lawn Bowls between those who thought that the decision had saved lawn bowls and those who thought it had killed it. Various small flurries were decided, with VCAT ruling that the Victorian Ladies Bowling Association had to admit men as members but that it was also allowed to run a one-off women’s event to honour a famous lady bowler. But then VCAT decided to grant a wholesale exemption to re-segregate the elite lawn bowls competitions, on the ground that Victoria’s mixed events didn’t mesh well with the largely segregated national and international lawn bowls world. In Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption)  VCAT 2415, the issue was whether the exemption would be granted again and, of course, Harbison decided that it would.
In contrast to McKenzie’s ruling on the same day, Harbison considered both operative provisions. Her main discussion was of Charter s. 32, which is unsurprising because she was applying a wholly statutory power:
83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…
In response to the applicants’ argument that the Charter wasn’t relevant because this section is ‘clear on its face’, Harbison ruled:
In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights. If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.
Yes indeedy! That’s exactly right.
Now, onto the next issue: how does the Charter assist? On this point, Harbison herself had the assistance of VEOHRC, who (as always) couldn’t afford to show up, but at least was able to send a letter:
It has been the Commission’s view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission’s position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.
That’s not bad either, although some might see it controversial because it clearly follows the Hansen approach, reading s83 down only to the extent demanded by Charter s. 7(2). While I’ve expressed some doubts about Hansen in some contexts, this context shows why Hansen is necessary, at least some of the time. Given that s83 basically authorises a departure from one of the Charter’s equality rights, it simply can’t be read as wholly compatible with those same rights. So, the only sensible re-interpretation that can occur is to read it as requiring no more than Charter s7(2) requires. (Query whether this reading is ‘consistent with the purpose’ of s83. But who knows what the hell its purpose is?) Harbison backed VEOHRC, but paraphrased its approach as follows:
Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.
That’s a bit vague (and seems to go further than Hansen would), but Harbison’s later analysis basically makes it clear that she will apply her discretion according to Charter s. 7(2). Moreover, she clearly takes the view that the Charter changes the approach to s83, at least in some cases:
This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption. It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.
Oooh. That reads to me as if she knows full well that McKenzie completely buggered up BAE. Harbison later notes that ‘Deputy President McKenzie did not consider herself bound by the Charter in deciding BAE’. ‘[C]onsider’, hey?
Issue #3: what rights exactly are limited by s83 in general and the proposed exemption in particular?:
Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption. The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination. The word “discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited. In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex. This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.
Snicker. I’m sure the RVBA and the VLBA will be thrilled to hear that the Charter actually contains a right to play bowls. After all, Harbison can’t just make rights up , can she? Alas, Harbison’s close attention to the operative provisions isn’t matched by her attention to the relevant rights provision:
8(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Neither Charter s. 8(2) (which is about enjoying real human rights, not fictitious ones – or is bowls an exercise of freedom of expression? Or movement?) nor the first part of Charter s. 8(3) (which is about the ‘protection of the law without discrimination’, which in my view doesn’t extend to decisions by private sports entities) are apt. Rather, the relevant right is the second half of Charter s. 8(3). The EOA offers protection against discrimination in certain fields, including sport. An exemption under s83 will deny equal protection to all players within that sport, I reckon. Anyway, it never much matters which Charter s. 8 right you use.
And, now, the Charter s. 7(2) analysis. At the core of Harbison’s analysis is the claimed purpose of the exemption:
The applicants say that the importance of the purpose of limitation is that the exemption seeks to promote equal opportunity around Australia for elite bowlers of both genders. That is, as I have previously expressed it, the Act currently prevents the applicants from running competitions exclusively for male or female bowlers. Without an exemption, this extends to State Championship level competitions, which pave the way for national and international competitions, which are almost entirely single gender competitions. Victorian players of both sexes are at a disadvantage because without single gender competitions at State Championship level, it is likely that they will not be promoting their best male and female players.
Arguably, this purpose would actually bring the limitation within the Charter’s own exemption for some discrimination:
8(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
Here, the ‘discrimination’ is by the national lawn bowls movement, which discriminates against all lawn bowlers I guess. However, unlike most anti-discrimination measures, which fight discrimination with ‘reverse’ discrimination, the exemption in this case would actually redress the national discrimination by mimicking it on a state level.
Actually, I’m also not convinced that the problem posed by the national organisation is gender-discrimination. Rather, when you look at the details, the problem appears to be that the national organisation’s rules are just stupid:
The reason for this is that competitors in national competitions become eligible by winning the relevant state title. If one assumes, for instance, that a male was to win the relevant Victorian State title and a female was the runner-up, then the male would be disqualified by reason of his sex from participating in the next level of competition in the national arena and the runner-up would be disqualified because she was not the winner of the State competition. Therefore, until national and international competition embraces the principles of equal opportunity under which the Victorian lawn bowlers must play, the best Victorian players may well be excluded from national and international competition.
This isn’t gender-segregation. It’s just an inane and arbitrary national selection policy. Why on earth wouldn’t the national mob just pick the top male and female from each mixed-sex competition in Victoria? This smacks of the national organisation deliberately undermined Victoria’s EOA laws, either because of some gripe against those laws (or Victoria), or even with the connivance of Victorians who oppose those same laws. Granted, there may be some deeper reasons why Victorians in mixed competitions face disadvantages nationally, but I’m unhappy with the lack of analysis here. VCAT judges haven’t hesitated to criticise the US’s nationality-discrimination polices as stupid, so why are they giving the national lawn bowls association’s policies an easy run?
All of this matters, because there’s a real danger, it seems to me, that granting an exemption will actually entrench the national discrimination, by facilitating its continuation. Or, to put it the other way, if VCAT refused a s83 exemption, isn’t there a good chance that, after a couple of years of controversy, the national organisation will come up with a better selection method. There’s a clear contrast here to the defence cases, where it seems clear that the US couldn’t give a shit about the constraints imposed by Australian laws and would just go elsewhere if no exemptions were granted. Harbison herself observed:
The exemption may not be reasonable forever. Its reasonableness depends upon the factual circumstances I have outlined, and particularly on the continuing problem that national and international competitions are single sex competitions. Should this circumstance change, the future need for this exemption may well fall away. On the facts as I have found them, it is unlikely that this will occur in the near future. I have therefore decided that the length of the exemption should be the maximum of three years.
Hmmm. And what if it’s the exemption itself that makes change unlikely in the ‘near future’?
Anyway, Harbison then goes through the remaining Charter s. 7(2) factors:
The nature and extent of the limitation was submitted to be as narrow as possible, being limited only to competitions which are part of the elite pathway to national and international competitions. It is not sought to expand the exemption to any competition which does not lead on directly, either at present or in the future, to a national pathway. Further, it was submitted that the relationship between this limitation and its purpose is rational and is neither arbitrary nor unfair, nor based on irrelevant considerations, nor designed to confer some commercial advantage. The last point is of significance. This is an application made purely in the interests of the sport of lawn bowls, and not for any commercial reason. The applicants further submitted that there are no other, less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve for as long as national and international competitions remain gender-segregated. Further, the applicants submitted I could take into account the evidence before the Tribunal that the exemption is presently working well. All of the above factors combine to persuade me that the exemption proposed in this case is a reasonable limit on the right which I have identified of a person to play lawn bowls without being discriminated against on the grounds of sex.
I guess this is OK, but I do have a problem in the way that, like McKenzie in Preshil, Harbison paints the exemption as basically a positive thing. I’m sure it is terrific for people who want to play at the national and international level. But what about people who just want to compete at the state level, with no higher ambitions, and who don’t much like being gender-segregated? Interestingly, Harbison was the beneficiary of over a thousand submissions, nearly all positive about the exemption. But it’s notable to me that there’s also a view that younger people don’t like single-sex teams. So, will the exemption simply entrench an existing bias in elite competitions in favour of older players? Heaven forbid that there’d be age segregation in lawn bowls!
Finally, Harbison also did a little bit of conduct mandate analysis. She noted the ‘substantial debate’ about what the hell (if anything) Charter s. 4(1)(j) means when it comes to tribunals. But then she declared:
However, it appears to me that in this case the resolution of that question will make no practical difference to the issues which I am to decide. I have already indicated my view that in interpreting s83, I must do so in accordance with s32 of the Charter. For all practical purposes, this means that I am obliged, in making my decision, to give proper consideration to the relevant human right engaged. This will lead to the same result whether I regard my obligation as arising out of s32 or s38 of the Charter.
That’s a common view, of course, and there’s doubtless a lot of overlap between Charter ss. 32 and 38 when it comes to exercising flexible statutory powers. Nevertheless, I take the view that the two provisions have quite different ‘defences’ and that Charter s. 38 may require more than Charter s. 32 sometimes. As I mentioned in relation to Preshil, one argument is that Charter s. 38 requires a change of procedures to ensure that s83 doesn’t overly limit the right to effective protection against discrimination, e.g. by requiring VCAT not to proceed unless there’s a contradictor (such as one paid for by the RVBA and the VLBA.)
All up, though, there’s at least a small trend of some competent, detailed and non-superficial analysis of the Charter emerging at last, albeit hardly consistently. Will it continue (or come to a grinding halt) in tomorrow’s judgment in the sex offenders’ case?