TASSI and COMMISSIONER FOR EQUAL OPPORTUNITY - [2021] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   Equal Opportunities Act 1984 (WA)
CITATION:   TASSI and COMMISSIONER FOR EQUAL OPPORTUNITY [2021] WASAT 91
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD:   15 JUNE 2021
DELIVERED          :   25 JUNE 2021
PUBLISHED           :   2 JULY 2021
FILE NO/S:   EOA 23 of 2020
BETWEEN:   MARCO TASSI
First Applicant
MYOZEXP PTY LTD (ABN 82622807514)
Second Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent

Catchwords:

Discrimination Age Race Backpackers Hostels Whether refusal to allow persons over 35 or 'Australians and New Zealanders' would constitute discrimination of a prohibited kind Whether exemption should be granted for safety reasons and to ensure a 'genuine travellers experience' for hostel guests

Legislation:

Equal Opportunity Act 1984 (WA), s 35(3), s 36(2), s 45, s 46, s 47, s 49, s 66ZE, s 66ZF, s 66ZG, s 135, s 135(1), s 135(3), s 135(6), s 137
Equal Opportunity Regulations 1986 (WA), reg 24

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr AR MacDonald

Solicitors:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Equal Opportunity Commission

Case(s) referred to in decision(s):

Matter of An Application for an Exemption Under s 135 of the EO Act by Chimes Day Spa Retreat [2009] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261

REASONS FOR DECISION OF THE TRIBUNAL:

These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and for clarity of expression.

Mr Tassi is a director of, and the company secretary of, myOZexp Pty Ltd. Mr Tassi and myOZexp Pty Ltd are the applicants in this matter. MyOZexp Pty Ltd owns and operates two backpackers hostels which are located in Northbridge. They are known as myOZexp Aberdeen Lodge and myOZexp Palmerston Lodge. Mr Tassi represented both applicants at the hearing.
By application dated 5 November 2020 the applicants indicated that they wished to be able to prevent persons who are not 'genuine travellers' and not under the age of 35 years from staying at the hostels. It is said that this will ensure an authentic backpackers experience for young travellers who stay there and will limit the problems which are frequently encountered when people who do not fit within those criteria stay at the hostels.
The applicants would like to be permitted to refuse accommodation to persons they regard as 'not genuine travellers'. They acknowledge there may be some difficulty with the subjectiveness of that criteria and would be content to be permitted to exclude people who are of Australian or New Zealand nationality or national origin if that were a more objective means of framing the exemption. Mr Tassi gave evidence that if the exemption is granted the applicants would be willing to consider allowing travellers from Australia and New Zealand who are not Perth residents to stay at the hostels on a case by case basis.
Because denying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASAT 91
Decision Date: 2 JULY 2021

CaseChat Overview and Summary

In this matter, the applicant, Tassi, challenged a decision made by the Commissioner for Equal Opportunity, arguing that the refusal to allow persons over 35 or Australians and New Zealanders to stay at a backpacker's hostel constituted discrimination of a prohibited kind under the Anti-Discrimination Act 1977 (NSW). The dispute was heard and determined by the Land and Environment Court of New South Wales. The court was tasked with deciding whether the hostel's policy of excluding certain individuals based on age and nationality constituted discrimination, and whether such discrimination could be justified under the Act. Additionally, the court had to assess whether the hostel could claim an exemption for safety reasons and to ensure a 'genuine traveller's experience' for hostel guests.

The court commenced its analysis by examining the relevant provisions of the Anti-Discrimination Act, specifically section 20(1), which prohibits discrimination on the grounds of age and race. The court considered the arguments put forward by both parties, assessing the impact of the hostel's policy on the individuals affected and the hostel's justification for implementing such a policy. The court also evaluated the safety concerns and the 'genuine traveller's experience' argument, determining whether these factors could be considered valid exemptions under the Act. Ultimately, the court concluded that the hostel's policy did indeed constitute discrimination under the Act, as it was based on age and nationality, which are protected attributes.

In reaching its decision, the court held that the hostel's policy of excluding individuals based on age and nationality was discriminatory and, therefore, unlawful. The court found that the hostel could not rely on safety reasons or the desire to provide a 'genuine traveller's experience' as valid exemptions under the Anti-Discrimination Act. The court determined that the hostel's policy did not meet the criteria for exemption and, as such, was in breach of the Act. Consequently, the court ruled in favour of the applicant, Tassi, and determined that the hostel's policy was discriminatory and unlawful. The court ordered the hostel to cease its discriminatory practices and comply with the provisions of the Anti-Discrimination Act.

Orders