HOUSE-ONE CO-OPERATIVE INCORPORATED - [2011] SAEOT 5

Equal Opportunity Tribunal
(District Court Administrative and Disciplinary Division)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
HOUSE-ONE CO-OPERATIVE INCORPORATED
[2011] SAEOT 5
Judgment of His Honour Judge Costello, Member Ms A Bachmann and Member Ms H Jasinski (ex tempore)
16 August 2011
DISCRIMINATION LAW
Application pursuant to Section 92 of the Equal Opportunity Act (SA) 1984 - applicant a group of homosexual men seeking to provide accommodation and interests in land exclusively to homosexual men - evidence that homosexual men being denied opportunities to secure and retain accommodation by reason of their sexuality - exemption in the public interest - exemption from the provisions of ss 35(1), 38(1), 40(1) and 40(2) granted.
Equal Opportunity Act SA 1984, referred to.
Pulteney Grammar School v Equal Opportunity Tribunal and Ors [2007] SASC 30, discussed.

HOUSE-ONE CO-OPERATIVE INCORPORATED
[2011] SAEOT 5
Introduction

The applicant, House-One Co-Operative Incorporated (“House-One”) has applied, pursuant to the provisions of s 92 of the Equal Opportunity Act (SA) 1984 (“the Act”), for an exemption from sections 35(1), 38(1), 40(1) and 40(2) of the Act to enable it to provide accommodation and interests in land exclusively to homosexual men.
Without an exemption, it is arguable that the applicant’s proposed course of conduct is unlawful.
The Acting Commissioner for Equal Opportunity has advised the Tribunal that she does not wish to be heard on the application.
Sections 35(1), 38(1), 40(1) and 40(2) of the Act provide as follows:
35—Discrimination by associations
(1)     It is unlawful for an association to discriminate—
(a)against an applicant for membership on the ground of sex, chosen gender or sexuality—
(i)by refusing or failing to admit the applicant 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, chosen gender or sexuality—
(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 other detriment.
…
38—Discrimination by person disposing of an interest in land
(1)     It is unlawful for a person to discriminate against another on the ground of sex, chosen gender or sexuality—
(a)     by refusing or failing to dispose of an interest in land to the other person; or
(b)     in the terms or conditions on which an interest in land is offered to the other person.
…
40—Discrimination in relation to accommodation
(1)     It is unlawful for a person to discriminate against another on the ground of sex, chosen gender or sexuality—
(a)     in the terms or conditions on which accommodation is offered; or
(b)     by refusing an application for accommodation; or
(c)by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation.
(2)     It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of sex, chosen gender or sexuality—
(a)     in the terms or conditions on which accommodation is provided; or
(b)by denying or limiting access to a benefit connected with the     accommodation; or
(c)     by evicting the person; or
(d)     by subjecting the person to other detriment.
Section 92 of the Act relevantly provides as follows:
92—The Tribunal may grant exemptions
(1)     The Tribunal may, on application under this section, grant exemptions from a provision of this Act in relation to—
(a)     a person, or class of persons; or
(b)     an activity, or class of activity; or
(c)     circumstances of a specified nature.
(2)     An exemption under this section—
(a)     may be granted unconditionally or on conditions; and
(b)     may be revoked by the Tribunal on breach of a condition; and
(c)subject to revocation, remains in force for a period, not exceeding three years, determined by the Tribunal, but may be renewed from time to time for a further period, not exceeding three years, determined by the Tribunal.
(6)In determining an application under this section, the Tribunal may—
(a)have regard (where relevant) to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination; and
(b)have regard to other factors that the Tribunal considers relevant.
Background
House-One was first incorporated on 30 August 1989 as “House One Incorporated” pursuant to s 20 of the Associations Incorporation Act 1985 (SA). It was later incorporated on 30 March 1992 as “House-One Co-Operative Incorporated” pursuant to the Co-Operative Housing Act 1991 (SA). House-One Incorporated and House-One Co-Operative Incorporated are one and the same body.
House-One grew out of a gay community initiative to provide low-cost, long-term and secure housing to homosexual men with low incomes. In particular, it has housed men who have the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome illnesses (AIDS).
House-One has a variable membership of no less than fifteen (15) persons, to whom it provides housing.
It manages 16 properties, owned by the South Australian Housing Trust (hereinafter referred to as “SAHT”) in the Adelaide metropolitan area. It pays capital contribution costs each month to SAHT.
Properties are leased to member tenants by the applicant for an indefinite period, promoting the objective of providing long-term, secure housing to tenants. Non-member tenants are eligible to rent properties managed by House-One for a fixed term of six months, (which term may be renewed) during which term(s) membership of House-One is to be secured.
Rent is calculated by reference to the member tenant’s income.
House-One is managed by a Management Committee (“the Committee”) comprising a minimum of three members. Meetings of the Committee are held every two months. Membership, Tenancy, Finance and Maintenance are managed by sub-committees which are convened monthly. Positions on all

sub-committees are on a voluntary basis and are only available for members of House-One.
General meetings for all members of House-One are held at least every two months. While the Committee is responsible for daily management, ultimate authority with respect to House-One rests with the general membership.
Mr Dell, a founding member and officer of House-One, whose evidence we accept, told us that men from the homosexual community are known to encounter prejudice and experience unique difficulties securing rental accommodation within the private sector. These issues are especially apparent to homosexual men who wish to reside with their same-sex partner, and for those with HIV or AIDS.
He also told us that men from the homosexual community are often denied an opportunity to rent property within the private sector for a variety of reasons.
Rejection may take the form of an explicit refusal by a property owner or manager to offer housing to a homosexual man. He also provided us with examples of a variety of what might be described as “limp excuses” proffered by landlords with the aim of denying further accommodation to existing tenants. Victimisation and harassment can also inhibit a successful tenant’s ability to enjoy living for extended periods in private accommodation.
For these reasons, House-One wishes to offer accommodation to homosexual men to the exclusion of all others. It wishes to specify in its constitution and advertising material that it is a gay organisation providing accommodation services only to homosexual men.
Discussion
In s 92(6) of the Act, Parliament has set out the matters to which the Tribunal may have regard in determining whether to grant an exemption.
In the case of Pulteney Grammar School v Equal Opportunity Tribunal & Others (2007) SASC 308, White J, for the Full Court, referred to the long title of the Act.
His Honour noted that the prevention of discrimination was not the sole object of the Act, but that its objects included:
The promotion of equality of opportunity between the citizens of this State; and the facilitation of the participation of citizens in the economic and social life of the community.
The Court concluded that the purposes of the Act went beyond the prevention of discrimination simpliciter. His Honour said at paragraph 33:
In my opinion, it is also natural to construe the EOA as intending to achieve some larger purpose than the mere elimination of discrimination for its own sake. The elimination of discrimination is a means of achieving the wider purpose of equality of opportunity amongst all citizens of the State.
Although his Honour made it clear that he did not intend to state exhaustively the circumstances which would justify the granting of an exemption, he referred to three circumstances as follows at paragraph 14:
The exemption is desirable, if not necessary, to achieve a purpose of the EOA; the general prohibition would be unreasonably harsh or burdensome in the applicant's particular circumstances; or there is some wider public interest (perhaps to be found in other legislation) which the grant of the exemption will serve.
… The circumstances of particular cases may reveal other occasions in which the grant of an exemption will be appropriate.
Accordingly, we accept that an exemption may be granted (in the exercise of our discretion) where, amongst other things, the general prohibition against discriminatory conduct under the Act would be unreasonably harsh or burdensome in the applicant’s prospective circumstances or where there is some wider public interest.
As we have noted, men from the homosexual community currently experience difficulties securing accommodation within the private sector, particularly those who wish to reside with their same-sex partner or for those with HIV or AIDS.
We recognise that if an exemption is granted, conduct which is arguably discriminatory and unlawful will be rendered legitimate. Having said that, any determination in this area will, of necessity, involve a balancing exercise. We have come to the conclusion that the grant of an exemption, in this case, will serve that “wider public interest” referred to in the Pulteney Grammar case and that to require House-One to comply with the Act in the provision of housing accommodation would be “unreasonably harsh” or “burdensome”.
Accordingly, we make an order that pursuant to the provisions of s 92 of the Act House-One is exempted from the provisions of ss 35(1), 38(1), 40(1) and 40(2) of the Act to enable it to provide accommodation and interests in land exclusively to homosexual men.