In the Matter Of An Application for Exemption Under S 135 Of the Equal Opportunity Act 1984 BY Chimes Spa Retreat
[2009] WASAT 21
•5 FEBRUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: IN THE MATTER OF AN APPLICATION FOR EXEMPTION UNDER S 135 OF THE EQUAL OPPORTUNITY ACT 1984 BY
CHIMES SPA RETREAT [2009] WASAT 21
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 9 DECEMBER 2008
DELIVERED : 5 FEBRUARY 2009
FILE NO/S: EOA 55 of 2008
BETWEEN :CHIMES SPA RETREAT
Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent
Catchwords:
Discrimination Age Application for exemption Holiday accommodation Adult retreat Whether refusal to accept children discrimination in provision of services and availability of facilities Whether exception for health and safety reasons applicable Whether exemption should be granted Whether applicants' commercial interests outweigh detriment flowing from discriminatory conduct
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 66, s 66V(1), s 66ZE, s 66ZF, s 66ZF(1), s 66ZG, s 66ZM, sZM(1)(e), s 68, s 93(1)(b), s 135, s 135(3), s 135(6), s 137, Div 4 of Pt IVB
Equal Opportunity Regulations (WA), reg 24
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr C Touyz
Respondent: Mr J Rosales-Castaneda (as Agent)
Solicitors:
Applicant: Hammond King Touyz
Respondent: Equal Opportunity Commission
Case(s) referred to in decision(s):
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants owned and operated holiday accommodation for adults. They sought an exemption from provisions of the Equal Opportunity Act 1984 (WA) which make it unlawful to discriminate in the area of goods, services and facilities on the ground of age.
The applicants maintained that providing 'adults only' accommodation did not constitute unlawful discrimination within the meaning of the Equal Opportunity Act 1984 (WA) and that, in any event, there was a relevant exception in the Act by virtue of which their conduct was not unlawful. However, following a complaint to the Commissioner for Equal Opportunity, they had agreed to apply for an exemption and let the Tribunal determine the matter.
The applicants argued that, if refusing to accept children was unlawful, they should be allowed an exemption. The Commissioner for Equal Opportunity opposed the granting of an exemption.
The Tribunal was satisfied that, absent a relevant exception or the granting of an exemption, the applicants' conduct would constitute unlawful discrimination contrary to s 66ZF of the Equal Opportunity Act 1984 (WA).
The Tribunal was not satisfied there was any applicable exception in the Equal Opportunity Act 1984 (WA). In particular, it did not accept that the exception in s 66ZM(1)(e) of the Equal Opportunity Act 1984 (WA) relating to health and safety considerations applied. The Tribunal found it would be contrary to public policy and would undermine the purpose of the Act if an applicant could design services or facilities with the exclusion of children in mind and then rely on the exception.
The Tribunal found that the only interest to be served by granting the exemption would be the applicants' commercial interests, which were outweighed by the detriment that would flow from the discriminatory conduct. The Tribunal did not consider it appropriate to grant the exemption and dismissed the application.
Background
The owners of Chimes Spa Retreat in Denmark, Western Australia, seek exemption from provisions of the Equal Opportunity Act 1984 (WA) (the Act) which make it unlawful to discriminate on the ground of age in the area of goods, services and facilities.
The applicants operate holiday accommodation aimed at a market that they describe as 'adult couples seeking a romantic getaway or relaxing from the hurly-burly bustle of city living'. Although children have stayed at the retreat on a few occasions, the applicants established Chimes Spa Retreat with the specific intention of offering a retreat for adults only, and that remains their aim.
Apparently no‑one took issue with the applicants' 'adults only' policy until 2007 when a complaint was made to the Commissioner for Equal Opportunity (the Commissioner) that their conduct in advertising their property as an 'adult retreat' breached s 68 of the Act. Section 68 makes it unlawful to publish an advertisement that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of the Act.
The complainant took issue with the fact that the applicants advertised on the internet as an adult retreat; it does not appear that she actually wanted to stay at Chimes Spa Retreat.
The Commissioner investigated the complaint, and attempted to conciliate it, but without success. On 11 June 2008, she referred the complaint to the Tribunal pursuant to s 93(1)(b) of the Act as a complaint of 'unlawful advertising of discrimination on the ground of age in the area of goods and services'.
The Tribunal directed parties to attend mediation and the complaint was resolved by the applicants agreeing to apply for an exemption from the Act and allowing the Tribunal to determine the matter.
Parties to the exemption application
The applicants lodged their application for exemption on 4 September 2008. Notice of the application, as required by s 35(3) of the Act, was given in an advertisement in The West Australian newspaper on 4 October 2008. The notice outlined why the exemption was sought and advised any person wishing to become a party to the application to notify the Tribunal by 24 October 2008. No‑one has notified the Tribunal of any interest in the application.
The Tribunal is satisfied that persons who might have an interest in the proceedings have had an opportunity to apply to be joined as parties and be heard.
By virtue of reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner is a party to an application for exemption unless she lodges an affidavit stating she does not wish to be a party. The Commissioner is a party to this application and opposes the granting of an exemption.
At a hearing of the Tribunal on 9 December 2008, Mr Kane Randle, joint owner of Chimes Spa Retreat, gave oral evidence. The applicants and the Commissioner had legal representation at the hearing.
The exemption sought
The applicants do not concede their conduct constitutes unlawful discrimination on the ground of age. They say no‑one suffers any detriment by reason of their conduct and, in any event, that s 66ZM of the Act provides a relevant exception by virtue of which any discrimination is not unlawful. If their conduct would be unlawful, however, they say they should be granted exemption from the Act.
The agreement reached at mediation appears to have been in broad terms that did not specify the particular provisions of the Act from which the applicants would seek exemption.
The applicants indicated at the start of the hearing that they wished to seek exemption from s 68 of the Act, which concerns advertising, but have conceded that s 68 is not a provision from which exemption is permissible under s 135 of the Act.
There was discussion at the hearing as to which provisions of the Act might be breached by a refusal to accept a person, on the ground of age, at the applicants' retreat and how the application for exemption might be framed.
Refusing to allow children to stay at holiday accommodation might constitute discrimination within the meaning of the Act in the areas of goods, services and facilities (s 66ZF), accommodation (s 66ZG) and access to places and vehicles (s 66ZE).
The applicants and the Commissioner, both of whom are represented, agree that the application should proceed on the basis that exemption is sought from s 66ZF(1).
The Tribunal accepts that the application should proceed as agreed. Neither the Commissioner nor the Tribunal has a compliance or regulatory function, and whether the applicants' conduct might breach any other provision in the Act is not a matter before the Tribunal in these proceedings.
Legislation
The meaning of age discrimination
Section 66V(1) of the Act provides that age discrimination occurs when a person treats another less favourably on the ground of ‑
(a)his or her age;
(b)a characteristic that appertains generally to persons of the same age; or
(c)a characteristic that is generally imputed to persons of the same age,
than in the same, or not materially different, circumstances, they treat or would treat a person who is not of that age.
'Age' in relation to a person means chronological age of the person: s 4(1).
Goods, services and facilities
Section 66ZF(1) of the Act provides that it is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's age ‑
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
'Services' in the Act include services relating to entertainment, recreation or refreshment: s 4.
'Facility' is not defined in the Act. Its ordinary meaning is 'an opportunity, or the equipment or resources for doing something; an establishment set up to fulfil a particular function or provide a particular service': The Australian Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 2004.
The Tribunal is satisfied that holiday accommodation is a service or facility, or both, within the meaning of the Act.
Exemption from the Act
By s 135 of the Act, the Tribunal may grant an exemption from the operation of a specified provision in the Act. The effect of an exemption is that an act which would otherwise be rendered unlawful by the Act will not be unlawful: s 137.
An exemption may be granted for up to five years on such terms and conditions as the Tribunal orders; it may be varied on the application of the person to whom it is granted or at the instance of the Tribunal; and it may be expressed to apply only to such circumstances, or in relation to such activities, as are specified in the order: s 135(1), s 135(3) and s 135(6).
Chimes Spa Retreat
The applicants bought their property in Denmark in about 1993 with the intention of establishing holiday accommodation for adults. Their current neighbour, from whom they bought the property, was building self‑contained chalets to cater for families and pets, and made it a condition of the sale that the applicants build a different kind of accommodation. This suited the applicants whose intention had always been to provide adults with an 'adult retreat' where children would not be present. After extensive research, they believed the idea was viable and decided to proceed.
The accommodation at Chimes Spa Retreat was designed in 1994 by Ms Randle's architect father, with adult couples in mind. The applicants have submitted photographs to the Tribunal that show open spa baths in all the rooms, open staircases, a number of open ponds, a stream, high balconies with furniture that a child could climb onto, and open fires, all of which they say pose hazards for children.
The applicants say, and the Tribunal has no reason to doubt, that they had no idea at the time that excluding children might breach equal opportunity legislation. They say they have operated their retreat for 13 years and have always made it clear to potential customers that they are unable to cater for children. Since the complaint to the Commissioner in 2007, they say they no longer advertise as an 'adult retreat' but still make clear their accommodation is 'not suitable for children'. They wish to continue to operate their business this way and cater only for adults.
The issues
The issues for determination are:
(i)whether the applicants' conduct comes, or would come, within the meaning of age discrimination in s 66V and s 66ZF of the Act;
(ii)if so, whether the exception in s 66ZM(1)(e) of the Act (or any other exception) applies;
(iii)if there is no applicable exception, should the Tribunal grant the exemption; and
(iv)if the Tribunal grants an exemption, should it be subject to any conditions or limitations.
Does the applicants' conduct come, or would it come, within the meaning of age discrimination in s 66V and s 66ZF of the Act?
The applicants maintain that offering accommodation as an adult retreat does not constitute unlawful discrimination because it does not treat children less favourably or materially differently; it is simply that the accommodation is designed to best suit adults, and their intention is actually to protect children from the risks posed by some of its features.
The applicants do not specify the ages of the children they wish to exclude but gave evidence that, for the purposes of their website, they had to indicate the age at which they considered a child to be an adult in order to stay at their retreat and they indicated 14 years.
The Tribunal takes it that, in effect, the applicants wish to be able to assure adults that they will not have to share the retreat with anyone younger than 14 and, to this end, to refuse to accept anyone younger than 14.
The first issue is whether such a refusal would constitute unlawful discrimination within the meaning of the Act.
Section 66V(1) of the Act provides that a person discriminates against another if, on the ground of their age, they treat that person less favourably than in the same circumstances, or in circumstances that are not materially different, they treat or would treat a person who is not of that age.
The words 'less favourably' … requires a comparison of the treatment in the actual and hypothetical case … A 'detriment' concept of discrimination has hitherto been adopted … The motives, reasons or suggested justification of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected. (Haines v Leves (1981) 8 NSWLR 442 and 471)
Refusing to provide services or to make facilities available on the ground of age is specifically made unlawful by s 66ZF(1)(a) of the Act.
The Tribunal finds that refusing to provide their accommodation service or make their facilities available to a child, or an adult accompanied by a child, on the ground of the age of the child, for that reason alone, would amount to less favourable treatment and, in the absence of an exception or exemption, would constitute unlawful discrimination.
Is there an applicable exception?
Section 66ZF of the Act is qualified by the particular exception in s 66ZF(2) and the general exceptions in s 66ZM.
Section 66ZF(2) concerns 'bona fide benefits, including concessions, provided to a person by reason of his or her age' and 'holiday tours offered or provided to persons who are of a particular age', neither of which is relevant to the present case.
Division 4 of Pt IVB of the Act provides for general exceptions to the age discrimination provisions. In particular, s 66ZM(1)(e) provides:
Nothing in Division 2 or 3 renders unlawful discrimination … against another person on the ground of the other person's age in the terms and conditions on which ‑
….
(e)goods, services or facilities are provided or made available,
as the case requires, if those terms or conditions are imposed in order to comply with health and safety considerations which are reasonable in the circumstances.
Section 66ZM(2) provides:
In determining for the purposes of subsection (1) what health and safety considerations are reasonable in all the circumstances, regard shall be had to all the relevant circumstances of the particular case, including the effect of the discrimination in question on the person against whom that discrimination takes place.
The applicants say their refusal to accept children is covered by the exception in s 66ZM(1)(e). They refer the Tribunal to the features of Chimes Spa Retreat that pose risks to children including open spa baths and open fires in the rooms, open staircases, unfenced ponds and a stream, high balconies from which a child could fall, and an electric fence. They say it is incumbent on owners to ensure that premises are safe; it would be irresponsible to make their facilities available to people with young children and they would be exposed to liability if they did so. They go further and say the Act positively requires them to discriminate because of the risk of harm posed to children by various features of their property.
Mr Randle conceded in oral evidence that many of these features would pose no risk to infants who are too young to crawl or walk, some would pose no risk to older children, and some would pose risks for elderly people and young children equally.
The applicants ask the Tribunal to take judicial notice of the trend over recent years for tourist destinations to cater to particular sectors of the population in response to demand for particular kinds of holidays. They cite 'thrill‑seeking' holidays that include activities such as bungee‑jumping and white‑water rafting from which children are commonly excluded. They say the Act cannot have been intended to mean that every person offering services or facilities must do so in such way that they are uniformly available to every sector in the population.
The Commissioner submits that the applicants cannot avail themselves of s 66ZM(1)(e) of the Act. In particular, she says they designed and built Chimes Spa Retreat at a time when age discrimination provisions were already in force, specifically for adult couples and with the intention of excluding children. She submits it would be contrary to public policy, and to the spirit and letter of the Act, to permit the applicants to rely on the exception in s 66ZM(1)(e) when they knew, or ought to have known, that the design would be unsafe for children of a certain age and when they consciously or willingly designed the premises without regard to the safety of children.
The Commissioner says that, assuming the property complies with building safety regulations (and she does not suggest it does not), it is arguable that it poses no greater risk to children than any other property that complies with building safety regulations. Further, that the applicants have provided no evidence that they have attempted to modify their property to make it safe for children.
The Tribunal agrees with the Commissioner that the exception does not apply in this case.
With respect, the applicants' argument about safety is somewhat disingenuous. They have been frank about their intentions in establishing Chimes Spa Retreat and their wish to exclude children in favour of an adults only holiday retreat. They concede that infants, for example, would face little risk from many features, and that others like open pools might equally present a hazard to some adults. They have been equally frank about not wanting to make changes to the property in order to accommodate children because to do so would alter its very nature and the market they seek to attract.
The exception in s 66ZM(1)(e) of the Act may apply where terms or conditions are imposed on the provision of services or facilities in order to comply with health and safety considerations which are reasonable in the circumstances. The provision contemplates, but may not be limited to, circumstances in which a service or facility is inherently dangerous and cannot be made safe for young children. Bungee‑jumping and white‑water rafting come to mind. In such circumstances, terms and conditions such as age restrictions, or the requirement that children be accompanied by an adult, might be reasonable.
In this case, the applicants set out to exclude children and designed their retreat with that in mind. It would be against public policy and would undermine the purpose of the Act if an applicant could establish an environment for commercial reasons, aimed at a particular market, knowing it to be potentially unsafe for children, without any intention of trying to make it safe, and then rely on the exception.
It is arguable that s 66ZM(1)(e) of the Act does not apply where services or facilities are refused but only as to the terms or conditions on which services or facilities are provided or made available. However, it is not necessary to decide the matter here because, for the reasons set out above, we would find the exception would not apply in any event.
Should the Tribunal grant the exemption?
The applicants submit that it is common practice for businesses to identify and target particular sectors of the market. They say it is a commercial reality that tourist and holiday accommodation is increasingly designed with particular markets in mind and theirs is no different. They see the issue as one of free choice and say allowing the exemption in this case would not create any harmful precedent.
The Commissioner says an exemption in this case would be contrary to the objects of the Act which include eliminating, as far as possible, discrimination on the ground of age.
The Commissioner argues that there is no rational basis for an exemption other than the applicants' commercial convenience which does not outweigh the detriment that would flow from granting the exemption. She says it would set a precedent whereby any person could set up a business in breach of the Act and then say they should be allowed an exemption in order to continue their business. She argues that the objects of the Act are not promoted by the exemption and are, in fact, disregarded because families with children can be rejected on the basis of the age of their child regardless of the actual risk. Further, that others may follow suit and seek to exclude persons on other protected grounds, defeating the objects and purpose of the Act.
The Commissioner submits that, if the exemption is granted, it should be for only a limited period to allow the applicants time to modify their premises to ensure, as far as practicably possible, that they are safe for children, and that they should be required to advise the Tribunal once that has been done.
Reasons
For the following reasons, the Tribunal is not satisfied that it should grant the exemption in this case.
The Tribunal has a general power, unconstrained by anything other than the objects, scope and purpose of the Act, to grant an exemption; it may take into account any considerations which it considers would justify the commission of the conduct which would otherwise be unlawful: Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 (ADI).
'[P]rovided there is a rational basis for the discriminatory conduct, it will fall to the Tribunal to determine whether the interests to be served by permitting that conduct outweigh the detriment which flows from the discriminatory conduct': ADI per Martin CJ at [72].
The objects of the Act include the elimination, so far as is possible, of discrimination against persons on the ground of age in specified areas, including the provision of services and facilities.
The applicants have been frank about their business and the market they aim to attract, and their desire to continue to operate an adults' retreat without the presence of children. The only interests to be served by granting the exemption would be the applicants' commercial interests. That is not to say their commercial interests should be disregarded but they are outweighed, in the Tribunal's view, by the detriment that would flow from the exemption, being to undermine the objects and purpose of the Act.
The Tribunal does not accept the applicants' submission that they should be allowed to determine their market and act accordingly, in effect without regard to the Act. The Tribunal accepts the Commissioner's submissions in this regard. Anti‑discrimination legislation is by its nature restrictive. It would render much of the Act ineffective if a person could establish or operate a business inconsistent with the objects of the Act and then obtain an exemption on the basis of their commercial interests alone.
It would not serve any purpose to grant the exemption for a limited period to allow the applicants time to modify their premises so that they are, as far as practicably possible, safe for children. The applicants have stated clearly that they do not wish to modify their property in that way because they wish to continue to offer their service and facilities to adults.
Conclusion
The applicants' desire to cater to adults only is understandable. They are clearly not alone. A quick search of the internet shows numerous places advertising themselves for adults only and it is reasonable to infer that they also decline to accept children.
However, as already noted, it is not the role of the Commissioner or the Tribunal to monitor compliance with the Act or to prosecute apparent breaches. The Tribunal can only consider an application for exemption as it stands and determine whether it should be granted or not. For the reasons set out above, the Tribunal does not consider it appropriate to grant the exemption sought in this case.
Orders
1.The application is dismissed.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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