The recent case of Lau v Moorilla Estate Pty Ltd [2024] TASCAT 58 revolved around a conflict between an artwork, specifically designed to be discriminatory for artistic purposes, and the provisions of the Anti-Discrimination Act 1998 (Tas) (the Act).
At the heart of the dispute was the Museum of Old and New Art's (MONA) "Ladies Lounge," an installation by Ms Kirsha Kaechele, the partner of MONA’s creator, David Walsh. Designed as an experiential art piece to address historical gender discrimination, the lounge was exclusively accessible to those identifying as 'ladies’, sparking a gender discrimination claim from Mr Jason Lau.
Background
Introduced in 2020, the "Ladies Lounge" aimed to redress past injustices by creating a space where women could enjoy privileges historically denied to them, notably receiving champagne service and being attended to by male butlers while surrounded by significant works from MONA’s collection. The Ladies Lounge was designed as a participatory art installation where the performance of permitting access to "ladies" while excluding men was an integral part of the artistic expression.
Mr Lau paid an entry fee to enter MONA but was denied entry to the Ladies Lounge based on his gender, leading him to argue that he had experienced unlawful discrimination in breach of the following provisions of the Act:
Section 14: direct discrimination
Section 16: on the basis of gender
Section 22: in the provision of facilities, good and services.
Direct Discrimination
The Tribunal accepted Mr Lau’s argument that he had experienced direct discrimination, specifically by being treated less favourably due to his gender. The detriment was considered substantial due to the significant value of the artworks in the Ladies Lounge, which Mr Lau was unable to access.
Equal Opportunity Exception
MONA sought to rely on the exception under section 26 of the Act which allows for discrimination “in any program, plan or arrangement designed to promote equal opportunities” for disadvantaged groups. They argued that the Ladies Lounge was designed to address the historical disadvantages faced by women in both access to spaces and opportunities for female artists. However, Mr Lau contested this, arguing that the installation did not clearly enhance equal opportunity and that section 26 was reserved for the promotion of positive, not negative, discrimination.
The Tribunal noted that section 26 aims to facilitate equality where disadvantages affect access to opportunities (like gender-based scholarships or employment quotas), and such measures can justify discrimination to achieve substantive equality.
Ruling
The Tribunal found MONA had provided insufficient evidence to demonstrate that women currently face substantive exclusion from spaces. Furthermore, it determined that the Ladies Lounge did not promote opportunities or address existing inequalities for female artists. It was also noted that the discrimination Mr Lau experienced did not support the promotion of equal opportunity for women's access to spaces as intended under section 26 of the Act.
Consequently, the Tribunal found that the refusal to allow Mr Lau into the Ladies Lounge amounted to direct discrimination on the grounds of gender and that the exception argued did not apply.
MONA has announced that it will appeal the decision.
Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au
