VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
anti-discrimination LIST	
vcat reference No. a269/2010	
CATCHWORDS	
Anti-discrimination - exemption – bar/social venue designed primarily for male homosexuals – refusal or restriction of entry to others not in that group – relevant considerations - human rights – interpreting and applying the Charter in the light of s83 – relevance of exemption proposal – whether human rights concerning discrimination and privacy engaged - Equal Opportunity Act 1995 s83;  Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 8, 13, 32, 38	

APPLICANT	Peel Hotel Pty Ltd	
WHERE HELD	Melbourne	
BEFORE	C. McKenzie, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	8 December 2010	
DATE OF ORDER & oral reasons	8 December 2010	
date of written reasons	13 December 2010	
CITATION	Peel Hotel Pty Ltd (Anti-Discrimination Exemption) [2010] VCAT 2005	

Order

The Victorian Civil and Administrative Tribunal has considered an application pursuant to section 83 of the Equal Opportunity Act 1995 by the Peel Hotel Pty Ltd (A.C.N. 104 465 143)  for exemption from sections 42, 100 and 195 of that Act. The application for exemption is to enable the applicant to engage in the exempt conduct.
In this exemption, “exempt conduct” means – 
•	to refuse or restrict entry to the Peel Hotel Pty Ltd at 113 Wellington Street Collingwood to people where the applicant (through its employee or agent) believes on reasonable grounds that to allow entry or unrestricted entry would adversely affect the safety or comfort of the venue for its homosexual male patrons, or the nature of that venue as a venue primarily for homosexual male patrons; 
•	to explain the nature of the venue to prospective patrons wishing to enter it and to permit them to choose whether or not to enter; and 
•	to advertise those matters.

Upon reading the material submitted in support of the application, and upon hearing submissions from Mr Rice of counsel and Ms Fitzgerald of the Victorian Equal Opportunity and Human Rights Commission, and for the Reasons for Decision given by the Tribunal on 8 December 2010, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 42, 100 and 195 of the Act to engage in the exempt conduct. 
The Tribunal hereby grants an exemption to the applicant from the operation of sections 42, 100 and 195 of the Equal Opportunity Act 1995 to enable the applicant to engage in the exempt conduct. 
This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 15 December 2013.

C. McKenzie
Senior Member			

APPEARANCES:		
For the Applicant	Mr G. L. Rice of counsel	
For the Victorian Equal Opportunity and Human Rights Commissioner	Ms S. Fitzgerald, solicitor	

Reasons
Outcome
1	The exemption is granted for a period of three years from the date of its publication in the Government Gazette.  The exemption is in slightly different terms from the exemption granted in 2007.  In summary, it will permit the applicant (the Peel Hotel) to refuse or restrict entry to its venue where the applicant, through its agent or employee, believes on reasonable grounds that unrestricted entry would either adversely affect the safety or comfort of those within the venue, or would adversely affect the character of the venue as primarily a venue for male homosexual patrons.  The exemption will also permit the giving by the applicant or its agent or employee of an explanation of the nature of the venue to prospective patrons, and the allowing of those prospective patrons to choose whether or not to enter.  Finally, the exemption will permit the advertising of those matters. 
Introduction and background
2	The applicant operates the Peel Hotel in Collingwood.  The applicant applied for an exemption in virtually similar terms to an earlier exemption which had been granted in 2007 and which expired on 30 May 2010.  I accept the evidence of the applicant’s managing director, Mr McFeely, that a renewal application of the earlier exemption had not been made because of an oversight.  On the basis that this was really a new exemption application (although it was made very close to the expiry of the old exemption), the Tribunal followed its normal practice in relation to new exemption applications of this kind. 
3	An additional factor which the Tribunal bore in mind was that the Charter of Human Rights and Responsibilities Act 2006 (the Charter) squarely applies at the time of the new exemption application.  On this basis, the Tribunal directed the application to be advertised in the Herald-Sun newspaper, and at the Peel’s premises.  The notice which was displayed and published provided a time for public submissions on the application to be made.  Neither VCAT nor the applicant received any comments opposing the exemption, either orally or in writing.   
4	The Tribunal also sent notice of the application to the Victorian Equal Opportunity and Human Rights Commission (the Commission), and has received very helpful and extensive written and oral submissions on the matter.  I should also say that I have written and oral submissions from the applicant, and these have also been extremely helpful.  I have affidavits from Mr McFeely and have also heard oral evidence from him.  My findings are based on all of that material, and my consideration of the law takes into account all of those submissions. 
Findings
5	My findings are based on all the material before me.  The Peel Hotel wishes to operate as a venue primarily for male homosexual patrons.  I accept Mr McFeely’s evidence that although the Peel continues to be profitable operated in this way, and is likely to continue to be profitable, it would be far more profitable if it did not restrict its patronage in the way it seeks to do.  
6	The main reason for the restriction is Mr McFeely’s view that the male homosexual community in inner Melbourne should have a venue where they can come without fear of violence, derision, insult, abuse or ostracism and socialise, make friends, take partners, and express themselves in an emotional or physically intimate way towards each other showing love, affection or attraction.  Mr McFeely sees this venue as an environment in which homosexual men will have the same opportunities to express those kinds of intimacy, that kind of attraction or affection as would be tolerated among heterosexuals towards each other in virtually any venue in Melbourne.  I accept Mr McFeely’s evidence that gay men who express affection in this way are still, although less frequently than in the past, sometimes subjected to insult, ridicule, derision and even violence.  That attitude in respect of the same behaviour between heterosexuals is not expressed within the heterosexual community.  The heterosexual community has this opportunity. 
7	Another factor which inhibits gay men from expressing themselves in the way that I have described is that where heterosexuals are present in the venue in large numbers, these kinds of expression on the part of gay men are sometimes regarded as a spectacle or entertainment, much as one might look at an animal in a zoo.  Clearly, this inhibits and diminishes the opportunity of gay men to express affection in this way. 
8	Mr McFeely does not seek to operate the Peel as an all-gay male venue, but he does wish to maintain the venue as a venue primarily for gay men.  I accept his evidence that if the character of the venue is not maintained, gay male patrons will feel less comfortable there, less able to express intimacy and may well be regarded as some kind or spectacle or entertainment.  They may well be less free from the possibility of insult, derision or even violence.  
9	To be able to maintain the character of the venue, Mr McFeely seeks to be able to refuse or restrict entry to people or groups where entry might undermine the security or comfort of the venue’s gay male patrons, or where entry might adversely alter the character of the venue as one primarily for gay male patrons.  I accept his evidence that neither he nor his staff ask people who seek to enter the venue (whether they ask this publicly or privately) if they identify as gay males.  His instructions to his staff, and I believe the instructions are carried out, are that they must explain the nature of the venue to prospective patrons as a primarily gay male venue, and then leave it to the choice of the person or group whether they wish or do not wish to enter.  
10	I also accept Mr McFeely’s evidence about how the exemption which expired in May 2010 operated.  That evidence was this.   The operation of the venue in this way is strongly supported by all patrons, not just those patrons who are gay males.  This support has continued throughout the period of the exemption.    The entry policy which I have just explained has worked without problems.  In fact, less than 10 per cent of prospective patrons need to have explained to them what the nature of the venue is.  This is because a large proportion of the Peel’s patrons attend the venue regularly, are known to staff, and already understand the character of the venue. 
11	I add that what was clear at the time of the granting of the last exemption still applies.  It is not as if there are no venues in proximity of the Peel to which heterosexual people and, for that matter, gay men who wish to attend a venue not primarily for gay men, can attend.  There are many such establishments. 
The law
12	Section 83 of the Equal Opportunity Act 1995 (the EO Act) gives a very broad discretion to grant exemptions from the Act’s provisions to people or classes or people, activities or classes of activities, or in specified circumstances.  The exemption is granted by notice published in the Government Gazette.  It lasts for a maximum period of three years from the date of its publication.  
13	The context of the section is this.  An exemption, as I have said, is for a limited and not an indefinite period, although it can be renewed.  It is clear from s12 of the Act that while such an exemption operates, it takes the relevant conduct out of the prohibitions of the EO Act.  Like the other sections of the EO Act, s35 of the Interpretation of Legislation Act 1984 applies.  That section tells us that we must prefer an interpretation (here, of s83) which promotes the Act’s objectives. 
14	The Act’s objectives appear in s3.  Some of those objectives appear appropriate to the Act’s prohibitions, such as the elimination of discrimination as far as possible by prohibiting it on the basis of various attributes, or to provide redress to those who have been discriminated against.  One of the objectives appears appropriate, in my view, to how the exemption provision is to work.  That objective is the promotion of the recognition and acceptance of everyone’s right to equality of opportunity. 
15	Section 32 of the Charter tells us that all statutory provisions are, so far as is possible consistently with their purpose, to be interpreted in a way that is compatible with human rights.  The Victorian Court of Appeal in R v Momcilovic has explained that this means that we must interpret statutory provisions like s83 of the EO Act using traditional principles of interpretation, but including the principles in s32 of the Charter.  Among the possible interpretations, we must look for the interpretation that is human rights-compatible.
16	On one view, it might be said that a provision like s83, which confers a broad discretion, can always be interpreted in a human rights-compatible way.   That can be achieved by always exercising the discretion given in a human rights-compatible way.  It is true that there is perhaps no direct inconsistency between s83 and the Charter.  But in my view, the subject of the exercise of the discretion must also be taken into account.  That means to consider s83 in the context of the particular exemption applied for.  The task is to determine whether the discretion, if exercised in that particular context, would engage a human right, and then whether that proposal might constitute a reasonable limit on that human right, that is, whether there is a reasonable justification for any interference with the human right. 
17	Section 38 of the Charter requires VCAT, as a public authority when making decisions in the exemptions jurisdiction, not to fail to give proper consideration to any relevant human right.  The Victorian Supreme Court in Castles v Secretary to the Department of Justice & ors. says that proper consideration will involve the Charter issues being seriously considered as being part of the decision-making process and a consideration of what rights may be affected and if so, how, and a weighing of the relevant competing interests when determining whether there is a reasonably justified interference. 
Applying the law
18	I now come to the question of the application of the law.  I look first at whether the s83 discretion should be exercised in the context of this exemption proposal and my findings about its background.  In my view, there is possible prohibited discrimination involved, either on the grounds of sexual orientation, perhaps gender identity, lawful sexual activity, or sex, and the relevant prohibition is the provision concerning the provision of goods and services.  The proposal might involve a refusal or restriction of entry on the grounds of those prohibited attributes in breach of s42 of the EO Act. 
19	I first consider in this context what rights under the Charter might possibly be engaged. The first, it seems to me, is the collection of rights under s8(2) and (3) of the Charter.  These are the right to enjoy human rights without discrimination, the entitlement to equality before the law, and to the equal protection of the law without discrimination, and the right to equal and effective protection against discrimination.  Section 8(4) provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination does not constitute discrimination.
20	The Commission submits that I should look at questions like proportionality between the measure and its purpose to determine whether s8(4) applies.  It also submits that I could interpret s8(4) in the light of the recently passed (but still inoperative) Equal Opportunity Act 2010.  I agree with the first part of this submission.  The purpose and the correlation between the purpose and the measure are relevant in determining the key question at the heart of s8(4) which is: is the measure truly for the purpose set out in the subsection?  In Lifestyle Communities Ltd (No. 3), Justice Bell found that s8(4) did not apply to the circumstances of that case, and one of the key considerations for that finding was that the exemption was primarily for a profit-making purpose only.  I am satisfied that this is not the case here.  
21	I should also say that I do not accept the second part of the Commission’s submission.  While it is permissible to interpret forwards in time, that is, to interpret the Equal Opportunity Act 2010 in its context and against its background and in the light of the Charter and the EO Act, I am not willing to interpret backwards in time.  In other words, I am not willing to interpret the Charter legislation passed in 2006 in the light of the new Equal Opportunity Act 2010. 
22	I am satisfied that the proposal here is a measure designed for the purposes set out in s8(4).  It is designed to give to gay men an opportunity to express themselves towards each other in an emotional or intimate way, an opportunity that they do not have to the same extent in venues not catering primarily for them.  Their opportunity is diminished in these heterosexual surroundings because their expression of this intimacy is still sometimes the subject of insult, derision or even violence towards them.  This hostility or violence stems, at least in part, from their sexual orientation, and in my view is a form of discrimination.  
23	The Peel proposes a measure designed to redress disadvantage caused in part by discrimination.  It follows, in my view, that the proposal does not engage the rights in s8(2) and (3) because s8(4) applies.  
24	I agree with the Commission that the only other right that might be possibly engaged is the right of privacy under s13 of the Charter.  Relevantly under that section, a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with.  Although there are some limits to this right, it is apparent from cases such as Lifestyle Communities and Kracke that the right is very broad, covering such things as personal dignity, personal autonomy and respect for personal identity.  This right was again considered in the Supreme Court case of Castles. 
25	Does the proposal, then, engage this human right?  If the proposal had been that the applicant would determine whether or not to refuse or restrict entry to the Peel by asking prospective patrons whether or not they identified as male homosexual, this would have been, in my view, a very serious interference of a human right.  But this is not the proposal. For those who are not regular patrons, the proposal is to explain to them the nature of the venue, and then ask the person or group whether they still wish to enter.  The choice is theirs whether to enter or not.  The difficulty with this strategy is that while prospective patrons are not required to disclose their sexual orientation publicly, it is arguable that the public choice to enter the venue after the explanation of the nature of the venue has been given may suggest to an onlooker that it is at least highly probable that the prospective patron is homosexual.  It is true that the venue does not ban heterosexuals from entering, but I am concerned with probabilities here.  This is a venue primarily for gay men and it is likely that an onlooker would assume that all or most of the patrons or prospective patrons would fall into this class. 
26	In this sense there may be, in my view, an interference with the privacy right.  There is also a second way in which the privacy right might be engaged.  It is clear that if Peel staff believe that entry of a group or person might adversely affect the security, safety or most importantly the character of the venue, entry may be refused.  In most instances, for example where security or safety is involved, I would have thought that there would be no interference with the privacy right involved in the refusal of entry.  But there may be possible interference with the privacy right if refusal of entry is based on maintaining the character of the environment as a primarily gay male venue, because the refusal would be grounded on perceived sexual orientation of the prospective patron.  A member of the Peel staff who refuses entry on this ground is actually saying something publicly about the perceived sexual orientation of the prospective patron and that, in my view, may possibly engage the human right to privacy. 
27	Is, then, this possible interference justifiable?  I am aware that Justice Bell in his Lifestyle Communities decision suggested that there might be imported into s83 of the EO Act a proportionality test based on article 26 of the International Covenant on Civil and Political Rights.  I do not think it necessary to deal with this matter further because in my view, s32 of the Charter, read as part of the ordinary interpretational principles, has the effect of telling us that in interpreting s83 we must bear the Charter in mind.  Once we look at any possible engagement of human rights, the question of justifiable interference becomes a question under s7(2) of the Charter and I prefer to look at it in this way. 
28	Section 7(2) deals with reasonable limits on human rights.  It provides –
 2) 	A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-
   (a)  the nature of the right; and
   (b)  the importance of the purpose of the limitation; and
   (c)  the nature and extent of the limitation; and
   (d)  the relationship between the limitation and its purpose; and
   (e)  any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

29	I now apply that subsection.  The right to privacy is unquestionably a fundamental and important human right.  I have mentioned its scope.  The purpose of the limitation represented by this proposal is to enable the venue to operate as a primarily gay male venue in the way I have described.  I have said that the operation of a venue like this is a measure designed to assist in redressing disadvantage because of discrimination.  Without some way of determining who may and who may not enter, the character of the venue could not be maintained, and its purpose would be frustrated.  The limitation is also therefore very important. 
30	In my view, that part of the limitation or proposal which allows Peel staff to explain the nature of the venue to prospective patrons and then leave the choice of entry to that patron is an appropriate and proportionate limitation of the human right.  
31	The second part of the limitation, the limiting of entry where entry would adversely impact on the character of venue, is of more concern.  If not limited further, it could potentially allow for one-off or ad hoc decision-making by Peel staff, creating both uncertainty and unfairness.  I agree with the Commission’s submission that some objective element needs to be added.  I would add, however, that it must be both objective and practical, remembering that these decisions are made on the spot and promptly.  I note that the applicant has agreed to the inclusion of some similar wording if the Tribunal considered it appropriate.  I have inserted into the exemption what I consider to be an appropriate objective but practical limitation which Peel staff can apply.  The proposal would, in my view, be proportionate to the purpose of the limitation.   As far as less restrictive alternatives are concerned, none have been suggested and I have not been able to think of any that would achieve the same purpose to the same extent.
Conclusion
32	I now come to my conclusion.  I have said that the exemption will be granted in the somewhat amended way that I have described.  I also recommend and encourage, although I do not consider it necessary to include as a condition given what I consider to be the very appropriate attitude adopted by Mr McFeely on behalf of the applicant,  that Mr McFeely have consultation with the Commission as far as training of his staff is concerned as to the best way in which the exemption might be used or exercised with the least interference to prospective patrons. 

C. McKenzie
Senior Member