Colquhoun v South Australian Trailer Boat Club Inc - [2007] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
COLQUHOUN v SOUTH AUSTRALIAN TRAILER BOAT CLUB INC
[2007] SAEOT 1
Judgment of Her Honour Judge Cole, Member Shetliffe and Member Worley
7 December 2007
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Refusal by respondent to admit complainant to its club as a member - complaint alleging discrimination on the ground that she was female - whether complainant was an applicant for membership of the club pursuant to s 35(1)(a) of the Equal Opportunity Act 1984 - whether the club was "an association that has both male and female members" - club was in breach of s.35(1)(a) in relation to its dealings with the complainant.
Equal Opportunity Act 1984 s 95(8), s 35(1); Associations Incorporation Act 1985; Acts Interpretation Act 1915, referred to.

COLQUHOUN v SOUTH AUSTRALIAN TRAILER BOAT CLUB INC
[2007] SAEOT 1

This is a decision in relation to a complaint referred to this Tribunal by the Commissioner for Equal Opportunity pursuant to s 95(8) of the Equal Opportunity Act 1984 (“the Act”). The complaint alleged that the South Australian Trailer Boat Club Inc (“the club”) discriminated against Ms Colquhoun on the ground of her sex by refusing to admit her to the club as a member.
At the hearing of the matter, Mr Evans was counsel for Ms Colquhoun and Mr Manuel was counsel for the club. Ms Colquhoun gave evidence. The club called no witnesses. Documents were tendered by both parties.
The Club is an association incorporated pursuant to the Associations Incorporation Act 1985. Its current rules set out its objects in Rule 4 as follows:-
4. The objects of the Club shall be:
(a)To promote and foster the sport of fishing amongst our members for which facilities are available or may be provided.
(b)Promotion of good sportsmanship and fellowship amongst the members and families of the Club.
(c)The dissemination of useful information covering fishing and boating activities of the Club.
(d)To foster the promotion and control of competitive fishing events amongst the members and similar Clubs.
(e)To provide and maintain a suitable Club-house and other conveniences for the use of members and their families.
(f)To raise and borrow any monies required for the purpose of the Club upon such terms and conditions and/or such securities as may be determined.
(g)To raise funds by means of functions, entertainment, tournaments etc for the improvement of facilities.
The club has exclusive use of a boat ramp at Outer Harbour, a secure car and trailer parking area, clubrooms and male and female toilet facilities.
Ms Colquhoun is a 45 year old woman. Her father, Barry Kelvin Heaven, was a member of the club until he died in 1991. Ms Colquhoun’s maiden name was Heaven. Ms Colquhoun gave evidence that her father frequently took her to the club premises, especially in the summer months, when she was a child. They would launch one of her father’s boats from the club boat ramp and go out to sea and fish. During those years, she developed a keen interest in boating and fishing. She obtained her boat licence at the age of twelve. She attended the club picnic, both during her childhood and after the death of her father. She was acquainted with other club members, some of whom she has kept in touch with.
Ms Colquhoun has maintained her interest in boating and fishing to this day. She gave evidence that she owns two boats, one of which is a very old boat which once belonged to her father, and which she is restoring. Ms Colquhoun’s 16 year old son shares her interest in boats and fishing.
Ms Colquhoun recalled that her father put her name on the club’s waiting list for membership, prior to her sixteenth birthday. An extract from the club’s membership waiting list was tendered as part of the book of documents. There is an entry on the list which reads;
T.M HEAVEN 119 FLETCHER RD LARGS BAY 497031 B.K.HEAVEN
There is no doubt that this is the nomination for membership of the club of Ms Colquhoun, who was then Ms Heaven, by her father, B K Heaven, at some time prior to June 1979.
The minutes of a general meeting of the club on 21 June 1979 record the following:
FEMALE MEMBERSHIP
The President explained to the meeting firstly how the name had appeared on the waiting list and that now the time had arrived for the members to consider the possible admission of women members. He then went on explaining in detail various aspects that had been examined by committee. R. McNicholl moved that females not be admitted as members to the club. Sec P. Johncock.
The advice from the solicitor contacted by the committee was then read.
As an amendment J. Rowe suggested that in the event of a change in circumstances the woman concerned be put to the top of the waiting list for immediate consideration. This was carried.
On 24 July 1979, the secretary of the club wrote to Ms Colquhoun in the following terms:
Your name has reached such a position on our waiting list for membership that we would normally at this stage invite you to submit a formal application.
While you are free to do so if you wish, we point out that the Committee would be unable to accept any such application at present.
The basis for this decision is that at a recent General Meeting of members of the Club it was decided that membership applications from women be not accepted at this stage.
The members have also directed that, in the event of a change in circumstances at some time in the future, you be then invited to apply to fill the next vacancy then occurring in the Club.
Ms Colquhoun remembers receiving that letter. She took no further action in relation to membership at that time. Her father was still alive, so she was able to continue using the club’s facilities with him. We infer from her evidence that she interpreted the last sentence of the letter to mean that her desire to become a member of the club would be reviewed by the club periodically, and she considered herself from the time of her receipt of the letter to be waiting for a decision from the club inviting her to become a member. She had a number of conversations with people associated with the club in the years after her father died.
Ms Colquhoun gave evidence that by August of 2006 she was tired of waiting for the club to make a decision in her favour. She therefore wrote a letter in the following terms:-
May I introduce myself? My name is Trisha Colquhoun (nee Heaven). My father Barry Heaven was involved with The Trailer Boat Club for many years. He was an active committee member and President of the Club in 1973 and 1974. He was made a life member in 1976. I believe that your father and my father were very close friends.
My father put my name down to become a member of The Trailer Boat Club many years ago. My name finally came up for membership but unfortunately was rejected because I was female. I was told that when females were allowed to become members of The Trailer Boat Club that I would be the first female member. This was voted on by committee members at the time and minuted. If you check back in your archived minutes you will find that my membership did come up and it was voted on. In the minutes my membership was rejected on the grounds that I was female. It was also minuted that when females were accepted that I would be the first female member. At this time I was told to wait and I would be contacted when my membership could be approved.
It has now been many years and I am still waiting. It is not my intention to create friction or chaos with in The Trailer Boat Club. Times have changed over the years and I felt discriminated years ago and still feel that way now. I have owned and operated boats for the past 25 years. I got my permit to drive a power boat at the age of 12. I now own a 19 foot trailer boat. All I would like to do is have my membership activated, have access to the boat ramp and security parking and go fishing.
I have spoken to and contacted current members of The Trailer Boat Club and discussed this issue with them. One member told me that I should not be a member because his and other member’s wives wouldn’t like it if there was a female at the Club. He went on to say that it would cause friction because members wives felt at ease because their husbands were members of a male only club. I find this completely absurd. I am happily married and my husband has not got a problem with me being a member of any club. I found this to be a poor excuse for not accepting female members into The Trailer Boat Club. On the other hand I have also got positive feedback from other members. Some saying that they do not have a problem with a female being a member of The Trailer Boat Club. In fact I even got positive feedback from their wives. Their wives encouraged me to pursue my membership.
I am hoping that the present committee will give my membership very thoughtful consideration. Hopefully The Trailer Boat Club now is more open to the thought of women being interested in recreational boating. I am also hoping that The Trailer Boat Club is aware that not only men require a Trailer Boat Club with launching and parking facilities, but also the social side of mixing with people who have the same passion and interest in boating. I do not need help in backing, launching or retrieving my vessel. I can do this as well as any man can. My father taught me to do this many years ago. I often go fishing alone and am confident within myself to do this.
Please submit this letter to your committee for an in-depth discussion and consideration. I have a copy of your constitution and no where in there does it mention that women are not to be accepted members within The Trailer Boat Club. I would also like to make mention that I am very serious about activating my membership. I feel I have waited patiently long enough.
I would appreciate a reply to this application for my membership to be activated. Unfortunately you do not have a form for an application that has been sitting and waiting for approval because of gender.
I look forward to hearing from you and your committee after you’re [sic] next scheduled meeting to be held in August 2006.
Ms Colquhoun completed a document entitled “Waiting list application”, which included the signature of a proposer, and delivered it, with the letter, to Mr Rob Whitehouse’s house. Mr Whitehouse was the club secretary at the time.
Subsequently, Ms Colquhoun received a letter from Mr Whitehouse in these terms:-
The circumstances have not changed and the subject of your letter has been considered by the committee and deemed not successful.
The minutes of that committee meeting are not in evidence.
Following receipt of that letter, Ms Colquhoun made a complaint to the Commissioner for Equal Opportunity, who then referred it to this Tribunal in accordance with the Act.
The Act provides, in s 35(1):-
(1) It is unlawful for an association that has both male and female members to discriminate -
(a)against an application for membership on the ground of sex, marital status or pregnancy -
(i)by refusing or failing to admit the application to membership, or to a particular class of membership, of the association; or
(ii)in the terms on which the applicant is, or may be, admitted to membership, or a particular class of membership; or
(b)against a member of the association on the ground of sex, marital status or pregnancy -
(i)by refusing or failing to provide a particular service or benefit to that member; or
(ii)in the terms on which a particular service or benefit is provided to that member; or
(iii)by expelling that member from the association or subjecting him or her to any other detriment.
Ms Colquhoun’s case is that the club discriminated against her, as an applicant for membership of the club, by refusing to admit her to membership on the grounds of her sex. It was argued on Ms Colquhoun’s behalf that this discrimination was in breach of s 35(1)(a) of the Act.
The club answered Ms Colquhoun’s case in two ways. Firstly, it was argued that Ms Colquhoun was not “an applicant for membership” within the meaning of s 35(1)(a). Secondly, it was argued that the club was not “an association that has both male and female members”, and that, as a result, s 35(1) does not apply to the club. It is abundantly clear from all of the evidence that Ms Colquhoun was refused admission to membership on the ground that she was female.
Applicant for Membership
The club’s rules were contained in a document entitled “Constitution and Rules” which was applicable from December 1972 until May 1991 (“the first Rules”), and a document entitled “Constitution and Rules” which was applicable from May 1991 until December 2006 (“the second Rules”) when an amendment was made. The first Rules provided, in paragraph 5:
5. Application for membership, accompanied by entrance fee [sic], shall be made by completion of the Application Form duly signed by the applicant, the proposer and seconder. The proposer and seconder must be financial members of the Club. The Executive Committee has the discretionary power to accept or reject any such application.
The second rules contained the same provision, also in paragraph 5.
It was argued on behalf of the club that because Ms Colquhoun had never completed an Application form in accordance with the Rules, she had never become “an applicant for membership” within the meaning of s 35(1)(a) of the Act, and that, consequently, s 35(1)(a) did not apply to her.
The complaint covers the period from 1 March 1987 to 14 August 2006. The beginning of the period coincides with the commencement of the operation of s 35(1) of the Act. The end of the period is the date of the letter from the club to Ms Colquhoun which communicated the club’s response to her letter of 2 August 2006. It is Ms Colquhoun’s case that the decision communicated to her by the letter of 24 July 1979 not to accept a membership application from her because of her sex continued in operation through the commencement of the Act and beyond. Her name remained at the top of the waiting list, yet, upon the coming into operation of s 35(1), the club did not change its decision. Instead, after her letter of 2 August 2006, the club confirmed that its position had not changed. In a sense, Ms Colquhoun was continuously refused admission to membership of the club from July 1979 onwards.
We reject the club’s argument that Ms Colquhoun was not at any time an “applicant for membership” within the meaning of s 35(1). We do not believe that the rules of the club can narrow the words of the Act. On any plain interpretation of the words “applicant for membership”, Ms Colquhoun has come within that description from the time that her name reached the top of the waiting list in 1979. On the basis of Ms Colquhoun’s evidence, the resolution of the general meeting of 21 June 1979 and subsequent communications, it is plain that the officers of the club were aware that Ms Colquhoun aspired to become a member of the club. It was the club itself, in the letter of 24 July 1979, which advised her, in effect, that completion of the formal requirement in paragraph 5 of the first Rules would be a pointless exercise. The club clearly communicated its refusal to admit her to membership, both in July 1979 and in August 2006. It would not have needed to do so had she not obviously been an applicant for membership. The reality of the situation is that Ms Colquhoun has been an applicant for membership of the club within the meaning of s 35(1) since July 1979.
Rule 16 of the first Rules is identical to rule 16 of the second Rules. It provides:-
16. Members may resign at any time by giving notice to the Secretary in writing. The vacancy so caused will be filled by the Executive Committee with the next name on the waiting list for membership.
It is clear that from July 1979, Ms Colquhoun’s name (her maiden name) was the next name on the waiting list.
An Association that has both male and female members
The Act in s 35(1) makes certain kinds of discrimination by “an association that has both male and female members” unlawful. Ms Colquhoun argued that the club was, at all material times, such an association. The club argued that it was not such an association. It argued that the club was at all material times an association that has male members only, and was not therefore subject to s 35(1). The interpretation of the phrase “an association that has both male and female members” was the subject of considerable argument. In the course of that argument, we were referred to the parliamentary debates in relation to the Act, however, nothing in those debates assisted us in resolving the question of how the phrase is to be interpreted.
Mr Manuel, counsel for the club, asserted in his argument that the club had never had a female member. However, there is no evidence to that effect. The documents do not advance the matter, and Ms Colquhoun’s evidence goes no further than to say that during the time of her association with the club, she was unaware of any female member. The only evidence put forward by the club at the hearing of the matter consisted of some minutes of meetings which did not bear on this question. We note that the preamble to the first Rules says that those Rules replace the Rules of 1955, which were amended in 1964. We infer that the club has been in existence since at least 1955. Having asserted that the club had never had a female member, Mr Manuel argued that it followed from that that the club was exclusively male. We disagree. Even if it could be shown that the club had never had a female member, that is not decisive. The question of whether the club was “an association that has both male and female members” requires us to determine the nature of the club. Whilst it is true that on any particular day a club which is by nature or character an exclusively male club will only have male members, it does not follow that a club which on a particular day has only male members is necessarily a club which is exclusively for men. In the same way, hypothetically, it may be that, on a particular day, all of the members of an association for the study of steam engines are more than 65 years old, but that does not, by itself, alter the character of the association to make it an association for people over 65. It remains an association for the study of steam engines. An association for the promotion of cycling may, for all of its history, have had only able-bodied members. Again, that does not mean that it fundamentally becomes an association for able-bodied people. It remains an association for the promotion of cycling.
Consideration of the issue of whether the club was, between 1 March 1987 and 14 August 2006 “an association which has both male and female members” raises the fundamental question of what factors should be taken into account when one is determining what the nature of an association is. The club was at all material times incorporated under the Associations Incorporation Act 1985. The Associations Incorporation Act 1985 makes provision in relation to the rules of an incorporated association in Division 3:
23 - Rules binding on association and its members
(1)The rules of an incorporated association bind the association and all members of the association.
(2)The reference in this section to the rules of an association extends to rules, by-laws or ordinances of the association relating to any matter.
23A - Contents of rules of an incorporated association
(1)The rules of an incorporated association -
(a)must state the name of the association and set out its objects; and
(b)must not contain any provision that is contrary to or inconsistent with this Act; and
(c)must contain provisions that, in the opinion of the Commission, deal with the following matters with sufficient particularity and certainty having regard to the nature and objects of the association;
(i)membership in the case of an association that has members;
(ii)the powers, duties and manner of appointment of the committee of the association;
(iii)the appointment of an auditor in the case of an association that is a prescribed association;
(v)the calling of and procedure at general meetings;
(vi)who has the management and control of the funds and other property of the association;
(vii)the powers of the association and by whom and in what manner they may be exercised;
(viii)the manner in which the rules of the association may be altered;
(ix)any other matter prescribed by regulation.
(2)This section applies only to rules, or an alteration to rules, submitted to the Commission for registration after the commencement of this section.
24 - Alteration of rules
(1)An alteration to a rule of an incorporated association may be made by a special resolution of the association unless other provision is made in the rules of the association.
(2)An incorporated association must, within one month after making an alteration to a rule, register the alteration with the Commission.
Maximum penalty: $1,250.
(3)An application for registration of a proposed alteration of the rules of an incorporated association -
(a)must be made in the prescribed form; and
(b)must be accompanied by a statutory declaration made by the public officer verifying the alteration; and
(c)must be accompanied by the prescribed fee.
(4)Subject to subsection (5), where the Commission is satisfied that the proposed alteration conforms with the requirements of this Act, the Commission must register the alteration.
(5)Where an alteration to the rules of an incorporated association consists of or includes an alteration to the name of the association -
(a)the Commission must not register the alteration unless it is satisfied that the name -
(i)is not such as to be misleading as to the nature, objects or purposes of the association; and
(ii)is not such as is likely to be confused with the name of any other body corporate or any registered business name; and
(iii)is not undesirable as a name for an incorporated association; and
(iv)conforms with any directions of the Minister as to the names of incorporated associations; and
(b)the Commission must, if it registers the alteration, issue to the association a new certificate of incorporation and make an appropriate notation on the register of incorporated associations.
(6)Subject to any provision in the rules of the association or a resolution to the contrary, an alteration to the rules of an incorporated association comes into force at the time that the alteration is passed.
(7)Notwithstanding subsection (6), an alteration to the name of an incorporated association does not come into force until the alteration is registered by the Commission in accordance with this section.

It seems to us that it was the intention of the Associations Incorporations Act 1985 that the nature of an incorporated association should be determined and fixed by its rules. Mr Manuel’s argument confuses the nature or character of an association, which is fixed by its rules, with the organisational culture of that association, which is dynamic.
The first Rules set out the Objects of the club as follows:
4. The objects of the Club shall be:-
(a)To foster and facilitate trailer boating generally.
(b)Promotion of good fellowship among the members of the Club.
(c)The dissemination of useful information covering boating and fishing activities of the Club.
(d)The promotion and control of competitive fishing and boating events among the members of the Club.
(e)To obtain launching sites and the improvement of boating facilities generally in South Australian waters.
There is also a rule entitled “Policy” which reads:
2. The Club shall be non-sectarian and non-political.
There is nothing in either of these rules which indicates that the club was intended to be for men only. Indeed, Object 4(a) is to foster and facilitate trailer boating “generally”. It is true that throughout the rules, members and office bearers are referred to as “he” and its variants, but we do not draw any inference from this, because it is entirely consistent with drafting styles of the time, to such an extent that it was specifically dealt with in s 26 of the Acts Interpretation Act1915 in relation to Acts of the South Australian Parliament. We note that By Law 10 of the first Rules provides:-
10. Attendance at Ladies nights is open only to Members, who should be accompanied by a female companion, and/or an adult female member of his immediate family or other member of his family at the discretion of the President.
Again, there is nothing in by-law 10 which would lead us to make an inference that the membership of the club was intended to be limited to males. The fact that the club had a regular function called “Ladies Night” does not raise an inference that the club was, by nature, male only. Had there been an intention that the club have only male members at any time during the operation of the first Rules, that intention should have been stated clearly and unambiguously in the rules (see s.23A(1)(c)(i) of the Associations Incorporation Act 1985). In that way, everyone who dealt with the club – whether as landlord, supplier of goods, donor of funds, applicant for membership or in any other capacity, would have had a clear indication of the precise nature of the association with which they were dealing or intending to deal.
We have also considered the provisions of the second Rules in detail. Again, there is nothing from which an inference can be drawn that the club was intended to be for men only. The Policies are unchanged from the first Rules. There are no relevant changes to the objects. Reference in the by-laws to Ladies Night has been replaced by reference to a Bingo night.
The club had the ability at all times to take steps to seek to change its Rules. It was alerted to the issue in July 1979 when Ms Colquhoun’s name came to the top of the waiting list. The minutes of the committee meeting on 7 August 1997 recorded this item:
13.T Foster concerned that a female can be nominated into the club by only having initials on the application form. Under the constitution and current law the club is legally bound to accept a woman if she is nominated.
Despite this, no move was made to change the rules to make the club men only until late in 2006. Instead, the specific decisions in relation to Ms Colquhoun were made, in the case of the 1979 decision, at a general meeting, apparently by ordinary resolution, and, in the case of the August 2006 decision, apparently by the committee. Such resolutions do not have and cannot have the effect of changing the fundamental nature of the club, as created by its Rules. A practice of refusing to accept women’s names on the waiting list, should such a practice exist, also could not change the nature of the club. Were the situation otherwise, a small group of members, or even an individual who concerned himself with such matters, would have the ability to make fundamental changes to the nature of the club, without those changes being considered by the membership.
We infer from the decision made by the general meetings in June 1979 that at least a majority of those attending that general meetings wished the club to be an all male club. That did not make it so. We understand that it is likely that from the time of Ms Colquhoun’s direct involvement with the club that there has in fact been no female member, but again, this does not dictate the fundamental nature of the club, which must come from its Rules. As Mr Evans pointed out, the make-up of the membership as a matter of fact may fluctuate from time to time. It cannot have been intended that s 35(1) of the Act would apply to an association one day and then not apply the next, depending simply upon the constitution of the membership from time to time. It must have been intended to refer to an association which could be characterised as an association that has both male and female members by reference to its rules.
We consider that the nature of the club is dictated by its rules. The rules create a boating and fishing club. On the basis of both relevant versions of the rules of the club, there is no basis upon which to characterise it as a club the membership of which is limited to men. There is no indication to the world at large that the club is exclusively for men.
Variation to the Rules
The book of documents tendered by the applicant contains the minutes of a special general meeting of the club on 2 December 2006. The minutes record the passing of a resolution (137 votes to 13) to change the constitution of the club to insert clause 5(a):
The Club is a male-only club. The Club shall not accept female members.
There is no evidence as to whether the requirements of the Associations Incorporations Act 1985 have been complied with in relation to the proposed change to the Rules.
Summary and Conclusion
Ms Colquhoun alleges that the club is in breach of s 35(1) of the Act. We have found that Ms Colquhoun was an applicant for membership of the club from July 1979 onwards. We have found that she was refused admission to membership of the club because of her sex, and that this refusal was communicated to her in July 1979 and in August 2006. We have found and determined that the club was, throughout the material time “an association that has male and female members”. The club is therefore in breach of s 35(1) of the Act in relation to its dealings with Ms Colquhoun. The breach began when s 35(1)(a) came into operation on 1 March 1987 and continued thereafter.
We will hear the parties as to the orders which should follow.