Fernwood Womens Health Clubs (Australia) Pty Ltd

The case before the Anti-Discrimination Commission involved Fernwood Women's Health Clubs (Australia) Pty Ltd, which sought an exemption from the Anti-Discrimination Act 1991 (AD Act) to continue operating female-only fitness clubs. The Commission did not object to the granting of the exemption. The applicant argued that the provision of female-only fitness clubs was a legitimate welfare measure and a means of promoting equal opportunity for women, as outlined in sections 104 and 105 of the AD Act. The applicant did not make submissions regarding the application of these provisions. The court had to decide whether the statutory exemptions applied and whether an exemption under section 113 was appropriate.

The court examined whether sections 104 and 105 of the AD Act applied to the applicant's operations. Section 104 allows for acts to benefit a group of people with an attribute if the purpose is not inconsistent with the AD Act. The court noted that the statutory examples in section 104 include a “high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks”. The court found that it was arguable that the applicant's fitness clubs could be considered a welfare measure for the benefit of women. However, the court found it was not clear how the provision of a female-only fitness club promoted equal opportunity for women, as required by section 105. The applicant did not make any submissions regarding the application of these provisions. The court concluded that the application of sections 104 and 105 was uncertain, particularly in light of the lack of submissions directed to these provisions. The court also considered that an exemption under section 113 of the AD Act was appropriate, as it provides an open-ended discretion to the Tribunal in granting an exemption.

The court noted that the discretion to grant an exemption under section 113 of the AD Act was not regarded by the courts as absolute and unfettered. The court held that the extent of the discretionary power is to be determined by reference to the subject matter, scope and purpose of the statute under which it arises. The court found that the principles to be applied in the exercise of the discretion under section 113 included whether the exemption was necessary, whether it was appropriate and reasonable to grant the exemption, and whether the exemption was in the community interest. The court found that an exemption was appropriate in this case because it was necessary to prevent a breach of the AD Act, and it was in the community interest to allow the applicant to continue providing fitness clubs exclusively for women. The court granted the exemption.

The court granted the exemption to Fernwood Women's Health Clubs (Australia) Pty Ltd to continue operating female-only fitness clubs under section 113 of the AD Act. The court found that the exemption was necessary to prevent a breach of the AD Act and was in the community interest. The court noted that the application of sections 104 and 105 of the AD Act was uncertain, particularly in light of the lack of submissions directed to these provisions.