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.

1. 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.

2. 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.

3. 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.

4. Because denying access to the backpacker hostels in the way the applicants propose may amount to unlawful discrimination under the Equal Opportunity Act 1984 (WA) (EO Act), the applicants have applied to the Tribunal under s 135 of the EO Act for an exemption from the operation of relevant provisions of the EO Act.

5. Although the applicants did not abandon their application for an exemption from the provisions that make it unlawful to discriminate on the basis of age, the applicants were primarily concerned with being able to discriminate on the basis of race and their evidence and submissions were focussed on that aspect of their application. 

6. None of the application, the applicants' written submissions or its evidence addressed the issue of why they sought to exclude New Zealanders from the hostels, although Mr Tassi referred to wishing to exclude New Zealanders in oral submissions.

Outcome

1. For the reasons which follow, I have come to the view that none of the exemptions sought should be granted.

Parties to the application

1. The applicants lodged their application on 5 November 2020.  Notice of the application was published in The West Australian newspaper as required by s 35(3) of the EO Act on 7 December 2020. No person or organisation notified the Tribunal of any interest in the application.

2. 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 to be heard.

3. By virtue of reg 24 of the Equal Opportunity Regulations 1986 (WA) the Commissioner for Equal Opportunity is a party to an application for exemption unless he determines he does not wish to be and notifies the Tribunal of that decision by lodging an affidavit.

4. In this case the Commissioner is a party and opposes the granting of an exemption.  

Issues for determination

1. The parties agreed that the issues for determination are:

   1.would the applicants' proposed conduct be unlawful discrimination on the grounds of age or race in a relevant area if the exemption is not granted;

   2.whether there is an exception in the EO Act which already applies to the applicants' conduct;

   3.if not, whether the Tribunal should grant the exemption sought; and

   4.if an exemption is to be granted, whether it be subject to any conditions or limitations.

Applicant's witnesses

1. In support of their application the applicants had filed witness statements of the following individuals, all of which were dated 8 April 2021:

   1.Mr Marco Tassi dated 8 April 2021;

   2.Mr Riccardo Galbiati dated 8 April 2021;

   3.Ms Jade Bell dated 8 April 2021;

   4.Ms Ya Chun Lee dated 8 April 2021; and

   5.A joint statement of Mr Raphael Anquetil and Ms Gael Cailliez dated 8 April 2021.

   The statements were taken as read.

2. Mr Galbiati was, at least at that time he wrote his witness statement, staying at the backpackers hostel in Aberdeen Street, where he said he has stayed on and off for the past year. 

3. Ms Bell is an employee of myOZexp Pty Ltd.

4. Ms Lee is an international student from China who said she stayed at the backpackers numerous times and has worked there as a cleaner from time to time. 

5. Ms Anquetil and Mr Cailliez said they are longer term guests who have stayed at the hostel throughout the COVID­19 pandemic. 

6. Each witness statement sets out some information about problems the witnesses attribute to FIFO workers, who they say drink all day with friends who they permit to enter the hostel and who cause problems as a result, or about problems caused by 'down and out' or homeless persons who stay there because it is the cheapest accommodation available and about drug use, violence and theft, which they say has resulted from those kinds of persons staying at the hostels. 

7. The only witness who gave oral evidence at the hearing was Mr Tassi.  Mr Tassi was asked some clarifying questions by both the respondent and the Tribunal.

8. The respondent did not adduce any evidence in the proceedings.

9. I will return to the evidence in more detail later in these reasons. 

Would the proposed conduct be unlawful discrimination on the grounds of age or race in a relevant area if the exemption is not granted?  

1. Not all discrimination is unlawful under the EO Act.  The EO Act makes direct discrimination on the grounds of age and race unlawful if it occurs in relation to certain things.  They include:

   1.the provision of accommodation (s 66ZG);

   2.access to goods, service and facilities (s 66ZF); and

   3.access to places and vehicles (s 66ZE). 

2. The Commissioner submitted that Mr Tassi's proposed conduct, if exemptions are not granted, could amount to unlawful discrimination in any one of these areas.

3. In Matter of An Application for an Exemption Under s 135 of the EO Act by Chimes Day Spa Retreat [2009] WASAT 21 the Tribunal accepted that the provision of holiday accommodation was the provision of a service or facility or both within the meaning of s 66ZF of the EO Act.

4. In this case, both parties agreed the exemption application should proceed on the basis that the exemption is sought from s 66ZG of the EO Act (that is, the area of accommodation).

5. The term 'race' is defined in s 4 of the EO Act as follows:

   Race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act. 

6. I accept that the description 'Australians' or 'New Zealanders' would be a reference to a 'race' for the purposes of the EO Act. 

7. I do not need to determine whether the proposed conduct would, in fact, amount to unlawful discrimination under the EO Act and if so, on which particular grounds.  I can proceed to consider the application for exemption if I am satisfied that there is a substantial prospect that the conduct would constitute unlawful discrimination under the EO Act. 

8. The applicant and the respondent both accept that refusing to permit persons who are over the age of 35 from staying at the hostels would very likely amount to unlawful discrimination in the area of either the provision of goods, service and facilities or accommodation on the grounds of age.  I accept that submission.

9. The applicant and the respondent also accept that refusing to permit a person of Australian or New Zealand nationality or national origin, or both, from staying at the hostels, would also be very likely to amount to unlawful discrimination on the ground of race in the area of either goods, services and facilities or accommodation.  I also accept that submission.

10. The respondent also submits that refusing to permit a person who is 'not a genuine traveller' from staying at the hostel would likely amount to indirect discrimination on the grounds of race in the area of either goods, services and facilities or accommodation which is also unlawful under the EO Act.  It submits that this is because imposing a requirement or condition that the person be a 'genuine traveller' will result in the exclusion of persons who are of Australian nationality or national origin in much greater numbers than of any other race (that is, a higher proportion of persons who are not Australian will be able to comply with the condition than compared to the proportion of persons of Australian nationality or national origin) and because the condition is unreasonable in the circumstances. 

11. The Commissioner submits that the condition is too imprecise and prone to being applied subjectively to be considered reasonable, having regard to the following matters:

    1.ensuring the safety and security of guests is a responsibility which is part and parcel of the applicants' conduct of its business and is not unique to the applicants;

    2.there has been no guidance provided for how the applicants would determine whether an individual is a 'genuine traveller';

    3.the condition is subjective and not capable of objective verification.  Determining whether a person does or does not meet the condition could lead to profiling of guests and visitors;

    4.the relaxation of that exclusion which the applicants said they would entertain in appropriate cases is based on subjective criteria which may themselves be discriminatory.

12. I accept those submissions and conclude that a condition of that kind would likely be held to be unreasonable and therefore that the conduct proposed (refusing accommodation to people who are not 'genuine travellers') is likely to amount to unlawful indirect discrimination on the grounds of race.

13. As a result, I am satisfied that there is sound potential that acting in the way proposed would constitute unlawful discrimination which is prohibited under the EO Act unless:

    (i)there exists in the EO Act an exemption; or

    (ii)unless the exemption is granted under s 135 of the EO Act.

Is there an exemption in the EO Act which applies?

1. There is no applicable exemption provided in Part III or Part IV of the EO Act. That is, nothing in s 45, s 46, s 47 or s 49 of the EO Act permits the applicant to take the action proposed in the application.

Should the exemption be granted under s 135 of the EO Act?

1. Section 135 of the EO Act permits the Tribunal to grant an exemption from the operation of a specific provision or provisions of the EO Act. The effect of an exemption is that an act which would otherwise be unlawful by virtue of the EO Act, will not be unlawful: s 137 EO Act.

2. 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. 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) EO Act.

The nature of the discretion to grant the exemption conferred by s 135

1. Section 135 of the EO Act confers what appears to be an unconfined discretion on the Tribunal to grant exemptions. However, at [26] of Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261 Martin CJ (as he then was) approved the Tribunal's characterisation of its discretion in the following terms:

   All state statutes have a context to which courts will look in order to determine the proper scope of the power.  Therefore no matter how unfettered the discretion might appear to be, it must always be exercised in conformity with the Act's limits, which are usually implied as to subject matter, scope and purpose.

2. This means that even though the discretion is very broad, the Tribunal must have regard to the scope and purpose of the EO Act in determining the exemption application under s 135.

3. The purpose of the EO Act is set out in its preamble, which is:

   An act to promote equality of opportunity in WA and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, or age, or involving sexual or racial harassment or, in certain cases, on gender history grounds.

4. The objects of the EO Act are set out in s 3 as follows:

   (a)to eliminate, so far as is possible, discrimination against persons on the grounds of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and

   (b)to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; and

   (c)to promote recognition and acceptance within the community of the equality of men and women; and

   (d)To promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.

5. The Tribunal is permitted to grant exemptions because it was recognised in the EO Act that Parliament could not anticipate all the circumstances in which discriminatory conduct might occur and might nevertheless be justifiable.

6. It is clear that granting the exemption which has been sought would not promote the advancement of a group of people who have traditionally been the victims of discrimination, which is principally to what the exemptions set out in Part III and Part IV are directed. 

7. In my view, the granting of an exemption would undermine the objects of the EO Act, which are to eliminate discrimination on the grounds of race and age to the extent possible within the Western Australian community. 

8. The question to be resolved in determining the application is, therefore, whether, having regard to the purpose of the EO Act, and notwithstanding that the granting of the exemption sought would undermine its objectives, there are nevertheless significant considerations that support the granting of the exemption.  Put another way, I am to determine whether the interests to be served by permitting the proposed discriminatory conduct outweigh the detriment which flows from the discriminatory conduct.

9. It will often be the case that interests which support the granting of an exemption will be public interests, but they need not be.  That is, private interests may be sufficient depending on the circumstances of the particular case. 

10. Questions to be considered in resolving the application for the exemption include:

    (i)Is the exemption necessary?

    (ii)Is there a non-discriminatory way in which the object for which the exemption is sought could be achieved?

    (iii)Is the exemption in the community interest?

    (iv)Do any other persons or bodies support the application?

    (v)Has the applicant taken reasonable steps to reduce the adverse effect of the actions before seeking the exemption?

Resolution

1. The respondent accepted that the applicants' concerns as to the security and safety of those who are using their accommodation are genuine and legitimate.   So too do I.

2. I also accept that the way in which the applicants run their business, which the evidence established was by providing budget accommodation of between $18 - $20 per night, means that it is an attractive accommodation option for homeless people, poor people and those being discharged from facilities providing accommodation to individuals with mental health or drug issues and the like, as Mr Tassi gave evidence was the case.  As Mr Tassi also said, more expensive hostels probably do not encounter the problem to the same extent because the persons who were identified as causing the trouble are priced out of being accommodated at those hostels.  

3. I also accept Mr Tassi's evidence that the fact that the hostels provide dormitory style accommodation and shared kitchen, laundry, bathrooms and living room facilities means that the behaviour of one guest has a tendency to impact on other guests in a way that is not the case in accommodation without such shared facilities.

4. I accept the general and anecdotal evidence given on behalf of the applicant that antisocial behaviour by persons identified as homeless people, drug dealers, persons with mental health issues and FIFO workers and their guests has, from time to time, caused disruption and safety concerns at the two hostels run by the applicants. 

5. The applicants' case is however, impressionistic rather than precisely put in relation to the frequency and extent of the problem and the consequences of the problems identified. 

6. The extent of the problem is unquantified in the evidence.  Mr Tassi gave evidence that he already discriminates to exclude the types of people he believes will cause trouble.  His evidence was that he expected that if he did not do so he'd expect to have a problem 'every week'.  Ms Bell's evidence was that 'bad outcomes occur outstandingly often'.  The other witnesses did not quantify the frequency with which antisocial behaviour occurs in their statements.

7. The generality of the applicants' evidence did not assist in identifying the seriousness of the problem.  There was no evidence that anyone had ever been injured by a person of a kind that the applicants are seeking to exclude.  The evidence was only that some of the behaviour, in particular the making of sexually inappropriate comments to younger girls, 'makes them feel really uncomfortable'.  Mr Tassi's evidence was that some guests who had been made to feel uncomfortable, had left to find other accommodation, and may have stayed longer had they not had that experience at the hostel.  His evidence was also that young travellers had reported being offered drugs by the kinds of guests the applicants are hoping to exclude.

1. Ms Bell gave evidence that one unwelcome guest had a knife and used drugs during his stay and that another had stolen money from another guest.  Ms Bell also gave evidence of damage and mess caused by a 'local' who also used injectable drugs in his room.  The damage was not particularised, and no attempt was made to identify repair costs.

2. Ms Lee's statement said that Australian guests cause more problems than international guests.  She referred to an incident with a guest carrying a knife and using drugs, and of one incident where a guest had hired a prostitute and brought her into the room.  She said these kinds of incidents are frightening for the younger guests.  She made mention of the same incident of theft of cash and of damage caused by a guest as that to which Ms Bell had referred in her statement. 

3. Mr Tassi gave evidence of being required to call the police when incidents occur and said that it can take a long time for the police to respond when the person being complained about is not carrying a weapon of some kind.  He said that on occasion he has lied to the police in order to ensure a faster police response.  His evidence was that the only means of requiring people to leave the hostel is to have the police become involved.

4. Mr Anquetil and Ms Cailliez gave evidence consistent with that given by the other witnesses and said that Australians 'constitute a small amount of bookings but cause a majority of issues'. 

5. I also accept Mr Tassi's evidence that the police response is often slow and that even when an antisocial guest is removed from the premises, problems are caused because:

   ·other guests may by then have left to find alternate accommodation;

   ·codes to rooms need to be changed, causing additional work for Mr Tassi;

   ·the room or bed vacated by the evicted guest cannot be rebooked at the last minute, which causes financial loss to the business; and

   ·the behaviour sometimes results in damage being caused or additional cleaning being required – again, causing financial loss to the business. 

   But again, the evidence was given at a most general level. 

6. Mr Tassi's evidence was that the business has no onsite receptionist. Bookings are made online and once the accommodation has been paid for online the guest is given the code which opens the door to the relevant hostel, provides access to the guest's dormitory and gives access to the common areas.   There are no lockers provided in which guests can securely store their valuables and other personal property.  Mr Tassi's evidence was that there are security cameras in place which can be monitored but which are not monitored at all times.  The five staff which he employs are essentially cleaners.  The access codes are changed by him each week as a matter of routine but when a guest is removed from the premises it necessitates him changing the codes, which takes additional time, and requires him also to notify tradespersons who also have the code in order to access the premises to undertake necessary repair works. 

7. Mr Tassi gave evidence, which I accept, that the staff he engages are not equipped to deal with the problems caused by the antisocial guests.  His evidence was that the staff are generally travellers or students staying at the hostel for extended periods of time and that their principal duties are to act as cleaners.  They have no training in how to respond to the antisocial behaviour.

8. Mr Tassi was asked what attempts have been made to find alternate ways to respond to the problem which the applicants are trying to address by being allowed to discriminate in a way or ways that would otherwise be unlawful.

9. Mr Tassi gave evidence that he had at one time engaged a security firm to monitor the premises overnight but that they had cost him $25 per night and had only really attended the premises for no more than 10 minutes, and logged their attendance outside.  In his view, this had provided no benefit to the business in addressing the problems being experienced. 

10. Mr Tassi acknowledged that the applicants could, and perhaps should, install lockers in which guests could store their valuables in order to reduce the risk of theft.  He also acknowledged that there were other strategies that might be implemented to mitigate the problems being experienced but was concerned that implementing those strategies would incur significant costs which the business could not justify given the cost of the accommodation was about $20 per night.

11. Mr Tassi's evidence was that while travel bans are in place as a result of the COVID-19 pandemic the problems being experienced are exacerbated because he does not have as many genuine travellers making bookings at the hostels and because he does not have the funds to adopt other mitigatory strategies. 

12. The applicants submit that they have applied for the exemption to exclude either 'Australians' or 'people who are not genuine travellers' not only because it would be to the benefit of their commercial interests but because it will better ensure the safety and security of the young guests who stay at the hostels and the safety of his employees and will eliminate sexual harassment of guests, which is itself an expressed purpose of the EO Act.

13. As to the application to exclude persons over the age of 35 years, Mr Tassi said that would also benefit the business in that it would be another way of excluding locals who cause the problems already identified.  Although he did not expressly say so, it can be inferred that it is his view that many of the individuals causing the problems are over the age of 35.  Mr Tassi also submitted that such an age limit would also benefit the genuine travellers that are his target market because it would ensure them a 'genuine' traveller's experience. 

14. I accept that there is a rational basis for the proposed discriminatory conduct insofar as it extends to Australians and persons over the age of 35 years however, at the hearing Mr Tassi also referred to excluding New Zealanders from the hostels.  The same rationale was given.  However, as I have already noted, no reference was made to New Zealanders in the orders sought in the application itself, in the witness statements or in the applicant's written submissions.  Accordingly, there is no rational basis upon which an exemption could be given to permit discrimination on the grounds that the individual seeking to be accommodated at the hostel was a New Zealand national or a person of New Zealand national origin. 

15. While the applicants' desire to operate their business economically and in a way which reduces antisocial behaviour and its consequences upon the business is understood, it is my view that given:

    (i)the paucity of the evidence given meant that the applicant had failed to establish the extent of the problem and, therefore, the extent of the benefit that would flow from the exemption(s);

    (ii)that the management of the behaviour of guests is a matter that must be addressed by all accommodation providers and is not unique to the applicants;

    (iii)that there are other means by which the antisocial behaviour could be addressed, even though it would necessitate changes to myOZexp Pty Ltd's business model; and

    (iv)the benefit of the proposed exemption would primarily be for the commercial benefit of the applicants, notwithstanding it would have a consequential benefit for the guests and staff of the hostels,

    the balance does not weigh in favour of the grant of any of the exemptions sought.

Orders

1. In light of the above, I will make an order dismissing the applicants' application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

CH

Associate to Judge Glancy

2 JULY 2021