VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H48/2021	
CATCHWORDS	
Equal opportunity – exemption to allow otherwise discriminatory conduct – operation of Charter – consideration of all facts and circumstances in each case; Equal Opportunity Act 2010 sections 89 and 90; Charter of Human Rights and Responsibilities Act 2006 sections 7 and 32.	

APPLICANT	YWCA Housing	
WHERE HELD	Melbourne via teleconference  	
BEFORE	Member C. Thwaites 	
HEARING TYPE	Hearing	
DATE OF HEARING	14 October 2021	
DATE OF ORDER AND WRITTEN REASONS	16 December 2021	
CITATION	YWCA Housing - Exemption (Human Rights) [2021] VCAT 1464	

Order
BACKGROUND
On 15 February 2021, YWCA Housing filed an application for an exemption from the Equal Opportunity Act 2010 (the Act). The conduct the Applicant sought to exempt from the Act has been amended several times. The final amended version of the application seeks to allow the Applicant to undertake the following activities without contravening the Act:
(a)	to preference women (including to preference women aged 55 and over and women who are working or on low income) in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio; and 
(b)	to preference women (including to preference women aged 55 and over and women who are working or on low income) in providing access to the Pathways to Independence Program, a program which provides information on housing pathways, including referrals to essential services, and support through brokerage such as rental subsidies, removalists costs, and other vital expenses (the PTI Services). 
Several directions hearings were held, a Notice of the application was distributed and published, and written submissions received. A hearing was conducted on 14 October 2021. 
The exemption application is complicated because the application seeks to allow the Applicant to preference different groups of people while making different decisions.
Part (a) seeks to allow the Applicant to preference a particular group of people based on their sex (women), and a particular group of people based on their sex and age, (women aged 55 and over), when considering future applications for vacancies which arise in the YWCA Housing portfolio.
Part (b) seeks to allow the Applicant to preference a particular group of people based on their sex (women), and a particular group of people based on their sex and age (women aged 55 and over), in providing access to the PTI Services. 
After considering all the material, evidence and submissions filed in relation to this application, and having heard the oral evidence and submissions provided at the hearing on 14 October 2021, for the reasons published today, I make the following orders
ORDERS
Section 60 Exception – welfare measures
1	I am satisfied the current YWCA Housing portfolio was established mainly for the welfare of persons of a particular sex, being females/women.
2	Therefore section 60 of the Act applies in relation to preferencing women in considering future applications for vacancies which arise in the YWCA Housing portfolio, and YWCA Housing may refuse to provide accommodation to other persons who are not of that particular sex.
3	I am not satisfied the current YWCA Housing portfolio was established wholly or mainly for the welfare of women aged 55 and over. 
4	Therefore section 60 of the Act does not apply in relation to preferencing women aged 55 and over, in considering future applications for vacancies which arise in the YWCA Housing portfolio. 
Section 88 Special needs
5	I am not satisfied the YWCA Housing accommodation is a special service, benefit or facility under section 88 of the Act.
6	I am satisfied the PTI Services are special services that meet the special needs of people with the particular attribute of sex, being female/women, as well as people with the particular attributes of sex and age, being women aged 55 and over.  
7	Therefore section 88 of the Act applies to the PTI Services, and YWCA Housing may limit the eligibility to the PTI Services to people with those particular attributes.
Section 13 When is discrimination unlawful
8	Under section 13 of the Act, discrimination is not prohibited where an exception such as those contained in sections 60 and 88 applies. 
9	Therefore, in so far as the exemption application relates to preferencing women in considering future applications for vacancies which arise in the YWCA Housing portfolio, and preferencing women, and women aged 55 and over, in considering access to the PTI Services, I am satisfied that no exemption under section 89 of the Act is necessary.
Exemption relating to preferencing women aged 55 and over, in considering future applications for vacancies which arise in the YWCA Housing portfolio
10	For the reasons published today, I am satisfied that it is appropriate to grant an exemption from sections 52, 53, 107 and 182 of the Act to enable the Applicant to preference women aged 55 and over, in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio. (the exempt conduct)
11	The Tribunal hereby grants an exemption from the operation of sections 52, 53, 107 and 182 of the Act to enable the Applicant to undertake the exempt conduct. 
12	This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 16 December 2024. 
Declaration
13	For the reasons attached to this order, I have decided to refuse the request to make a declaration in relation to the application of section 60 and 88 of the Act.

C. Thwaites
Member			

APPEARANCES:		
For Applicant	Ms M. Mills of counsel
Ms C. Dillon, general manager community housing
Mr W. Atfield, representative
Mr A. Corsaro, lawyer
	
YWCA Housing tenants	Mr J. Officer
Ms N. Lopes
Ms N. AfshariBeheahnanizade	

Exemption
APPLICATION NO H48/2021
The Victorian Civil and Administrative Tribunal has considered an application pursuant to section 89 of the Equal Opportunity Act 2010 (the Act) by YWCA Housing (the Applicant). The Applicant sought an exemption to allow it to undertake the following activities without contravening the Act:
(a)	to preference women (including to preference women aged 55 and over and women who are working or on low income) in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio; and 
(b)	to preference women (including to preference women aged 55 and over and women who are working or on low income) in providing access to the Pathways to Independence Program, a program which provides information on housing pathways, including referrals to essential services, and support through brokerage such as rental subsidies, removalists costs, and other vital expenses (the PTI Services). 
For the reasons published today, the Tribunal found that much of the activities outlined in the application came under sections 60 and 88 of the Act, and therefore an exemption was unnecessary for those activities. 
For the reasons published today, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 52, 53, 107 and 182 of the Act to enable the Applicant to preference women aged 55 and over, in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio. (the exempt conduct)
The Tribunal hereby grants an exemption from the operation of sections 52, 53, 107 and 182 of the Act to enable the Applicant to undertake the exempt conduct. 
This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 16 December 2024. 
Dated this 16th of December 2021. 

Reasons
THE APPLICATION
1	On 15 February 2021, YWCA Housing filed an application for an exemption from the Equal Opportunity Act 2010 (the Act), to allow it to refuse to provide accommodation and other housing support, including (but not limited to) housing information and referrals, to persons of the male sex without contravening the Act.
2	YWCA Housing stated it sought to, in certain circumstances, limit its offer of accommodation and other housing support services to particular subgroups of women who meet applicable YWCA Housing program criteria, including (but not limited to) women and families who have been impacted by family violence, women aged 55 and over, and women who are working (or a combination of these) without contravening the Act.
3	The conduct the Applicant sought to exempt from the Act has been amended several times during the application and hearing process. This was to ensure the proposed conduct would not adversely affect current residents. For clarity, I confirm the final amended application from YWCA Housing seeks an exemption to allow YWCA Housing to undertake the following conduct without contravening the Act:
a	to preference women (including to preference women aged 55 and over and women who are working or on low income) in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio; and 
b	to preference women (including to preference women aged 55 and over and women who are working or on low income) in providing access to the Pathways to Independence Program, a program which provides information on housing pathways, including referrals to essential services, and support through brokerage such as rental subsidies, removalists costs, and other vital expenses (the PTI Services). 
4	The exemption application is complicated because it seeks to allow the Applicant to preference different groups of people while making different decisions, without contravening the Act.
5	It seeks to allow the Applicant to preference different groups; women, women aged 55 and over, women who are working, women who are on low incomes.
6	It also seeks to allow the Applicant to preference these groups when making different decisions; when deciding who will be offered accommodation in their housing portfolio, and when deciding who will have access to their PTI Services.
7	In so far as the conduct engages the Act, it does so in relation to the preferences based on sex (women) and age (women aged 55 and over).
8	This is because these are attributes protected by the Act. 
9	The other groups (low income, or working) do not relate to attributes protected by the Act, and therefore an exemption is not necessary for them as preferences/decisions based on those groups would not amount to prohibited discrimination. 
10	Before deciding whether to grant an exemption, the Act requires me to first consider whether an exemption is unnecessary because an exception or exemption in the Act already applies to the conduct.
11	Part (a) seeks to allow the Applicant to preference a particular group of people based on their sex (women), and a particular group of people based on their sex and age (women aged 55 and over), when considering future applications for vacancies which arise in the YWCA Housing portfolio.
12	The Applicant has submitted that section 60 of the Act applies to their housing portfolio, and seeks a declaration from the Tribunal to this effect.
13	Part (b) seeks to allow the Applicant to preference a particular group of people based on their sex (women), and a particular group of people based on their sex and age (women aged 55 and over), in providing access to the PTI Services. 
14	The Applicant has submitted that section 80 of the Act applies to their PTI Services, and seeks a declaration from the Tribunal to this effect.
15	In the alternative, if the Tribunal is not satisfied sections 60 and 88 apply, the Applicant seeks an exemption for the conduct.
16	In making this decision, I have taken into consideration all the material, evidence and submissions before me including the affidavits and their attachments of Ms Dillon dated 11 February 2021, 16 April 2021, 9 July 2021 and 11 October 2021, the written submissions provided by the Applicant received on 16 April 2021 and 11 October 2021, the written submissions from Mr Tyson, as well as the oral evidence by Mr Officer and the report he referred to, the oral evidence of Ms Lopes, Ms AfshariBeheahnanizade, and the oral evidence of Ms Dillon provided at the hearing. I have also taken into consideration the submissions from Ms Mills at the hearing.
Section 60 – Welfare measures
17	In their written submissions received on 16 April 2021, YWCA Housing submitted that section 60 of the Act applies to YWCA Housing because the object and mission of the YWCA, includes amongst other things, to provide affordable accommodation to disadvantage women, which the YWCA considers to be a fundamental to women’s social, economic and educational participation, and the realisation of gender equality, and to provide relief to people experiencing poverty, homelessness, violence or disadvantage, in particular women and children.
18	YWCA Housing submitted that their housing portfolio was established primarily for the welfare of women, noting that until July 2007 YWCA Housing had provided accommodation predominantly to persons of the female gender. 
19	Section 60 Exception – welfare measures states:
A person may refuse to provide accommodation to another person in a hostel or similar institution established wholly or mainly for the welfare of persons of a particular sex, age, race or religious belief if the other person is not of that sex, age, race or religious belief.
20	The YWCA Housing portfolio contains rooming houses and independent properties which are operated by YWCA Housing. YWCA Housing submitted that those rooming houses and independent properties fall withing the meaning of “hostel or similar institution”.
21	YWCA Housing submitted that section 60 applies, and therefore permits YWCA Housing to refuse to provide accommodation to males.
22	In her affidavit dated 11 February 2021, Ms Dillon stated the YWCA Housing portfolio contains rooming houses and independent properties containing a total of 271 rooms and tenancies. The rooms are either owned and managed by YWCA Housing or owned by the Department of Health and Human Services (DHHS) or other third parties and leased to YWCA Housing.
23	Based on her review of YWCA Housing records and documents, Ms Dillon stated that she was aware that until 16 July 2007, YWCA Housing had provided accommodation predominantly to persons of the female sex. After that date, YWCA Housing executed a Housing Provider Framework Agreement with DHHS and agreed to rent and manage properties owned by DHHS. At the time the agreement was executed, some of those properties were tenanted only by persons of the male sex, some were tenanted by persons of both sexes (mixed tenure). Following the execution of the agreement, properties tenanted by persons of the male sex came under the management of YWCA Housing.
24	At the time of making her affidavit dated 11 February 2021, Ms Dillon stated there were 19 persons of the male sex residing in properties managed by YWCA Housing. This represented approximately 7% of current YWCA Housing tenants in Victoria. At that time, there was also 240 females and one transgender person residing as YWCA Housing tenants.
25	In her oral submissions, Ms Mills noted the name YWCA referred to the Young Women Christian Association. Ms Mills refer to the objects in the YWCA Housing constitution noting the object was to provide safe secure affordable accommodation to disadvantaged women, which the YWCA considers to be a fundamental to women’s social, economic and educational participation, and the realisation of gender equality.
26	Ms Mills referred to Ms Dillon’s affidavit dated 11 February 2021 and the YWCA Housing objects, and the DHHS eligibility criteria. She noted that Ms Dillon stated in her affidavit that YWCA Housing was also constructing more affordable housing properties and is planning to add a further eligibility criterion, that the applicants must identify as women.
27	Ms Mills referred to the evidence provided in Ms Dillon’s affidavit dated 16 April 2021 in relation to the need for affordable housing for women, and for certain subgroups of women, including women and their families impacted by family violence, women aged 55 and over, and women who are working.
28	Ms Mills submitted that the YWCA Housing portfolio was established wholly or mainly for the welfare of women and that section 60 applied.
29	During the hearing I raised concerns in relation to the properties added to the YWCA Housing portfolio under the agreement in 2007. I questioned whether they could be considered to have been established wholly or mainly for the welfare of women. 
30	I referred to the evidence provided in Ms Dillon’s affidavit, that those properties included properties tenanted by persons of the male sex, and some tenanted by both sexes (mixed tenure). At the time of Ms Dillon’s affidavit of 11 February 2021, the YWCA Housing portfolio included 19 persons of the male sex residing in properties managed by the YWCA Housing.
31	In his oral evidence at the hearing, Mr Officer also questioned whether the YWCA Housing portfolio could come under section 60 given the evidence in Ms Dillon’s affidavit noted above. He told the Tribunal he had been a YWCA Housing tenant for eight years. 
32	Mr Officer noted that when he moved into his current accommodation in 2013 the property had been entirely tenanted by males, but since mid-2014 there had been a significant change in management and some male tenants had moved out and women had moved in. 
33	Mr Officer submitted that access to State-owned properties should not be limited by YWCA Housing, and this should be a matter for the State Government or DHHS to decide.
34	Mr Officer raised his concerns about the changing words of the conduct the Applicant sought to have exempt from the Act, and thought it was clear from the outset YWCA Housing sought to refuse applications from men.
35	Mr Officer questioned the veracity of the statistics relied on by YWCA Housing, and referred to the Australian Bureau of Statistics information which shows it is males, not females, in most need of affordable housing.
36	During the hearing Ms Lopes raised concerns that the conduct (as it was drafted at the time of the hearing) would adversely affect current tenants who, for reasons beyond their control, may have to move out. They would then be considered a new applicant and subject to the preference for women and in some circumstances, women aged 55 and over.
37	Ms Dillon responded that in circumstances where safety was an issue and the tenant needed to move, YWCA Housing would support a relocation, and this would be treated as a transfer application and not a new application.
38	Mr Officer raised concerns that sometimes tenants are required to move for not fault of their own, in circumstances that are not related to safety concerns, such as when major repairs were required.
39	Ms Mills indicated the proposed conduct sought by the Applicant could be amended to reflect this. The wording of the proposed conduct was aimed at limiting the scope of the exemption, so it did not capture current tenants. As noted above, YWCA Housing amended the proposed conduct to address this concern.
40	During the hearing Ms AfshariBeheahnanizade raised her concerns about her current tenancy and her hopes to move and change location. Ms Dillon undertook to ask a housing officer to contact her.
Findings in relation to section 60 – welfare measures
41	I note section 60 of the Act refers to the provision of accommodation in a hostel or similar institution. 
42	While I do not accept the YWCA Housing portfolio can be considered a hostel, I do accept the submissions that the YWCA Housing portfolio can be considered as a “similar institution” referred to in section 60.
43	I also accept the evidence before me, that until 16 July 2007, YWCA Housing had provided accommodation predominantly for persons of the female sex. 
44	I accept that after the agreement with DHHS came into effect, the YWCA Housing portfolio expanded to include some properties tenanted by persons of the male sex only, and other properties were tenanted by both sexes (mixed tenure). 
45	I accept that at the time the agreement was executed, the DHHS properties became part of the YWCA Housing portfolio. 
46	I also accept that while YWCA Housing continued to accept applications for housing from males such as Mr Officer, who moved into his current home in 2013, over time some male tenants moved out and women moved into the DHHS properties, and the percentage of male tenants in the YWCA Housing portfolio has declined over time. 
47	I also accept that at the time Ms Dillon swore her affidavit dated 11 February 2021, YWCA Housing had 240 female tenants, one transgender tenant and 19 male tenants. I accept that male tenants make up approximately 7% of YWCA Housing tenants.
48	On the evidence before me, I accept that YWCA Housing has continued to operate under its constitution and has continued to pursue it objects of providing affordable housing and accommodation to people on low incomes, in particular those people who identify as women, women-headed households and those with children. 
49	I consider the properties added to the YWCA Housing portfolio in 2007 make up a relatively small percentage of the overall portfolio, and the percentage of male tenants has reduced since 2007.
50	As noted above, I accept that until 16 July 2007, YWCA Housing had provided accommodation predominantly for persons of the female sex. 
51	While I also accept that after the DHHS properties were added in 2007, the YWCA Housing portfolio included some housing for males only and some mixed tenancies, those properties made up a relatively small percentage of the overall YWCA Housing portfolio, and the percentage of male tenants has fallen since that time.
52	Therefore, while I do not accept the current YWCA Housing portfolio was established wholly for the welfare of persons of a particular sex given the additional properties added in 2007, I accept the YWCA Housing portfolio was established mainly for the welfare of persons of a particular sex, being female/women.
53	Therefore, I accept that the exception – welfare measures – in section 60 of the Act applies to the current YWCA Housing portfolio, in relation to seeking to preference women in considering future applications for vacancies which arise in the YWCA Housing portfolio.
54	While I note the YWCA Housing constitution indicates YWCA Housing was also established to promote the relief of poverty, sickness or the needs of the aged, by providing affordable rental housing to persons in housing need as low-income households or through infirmity of age, YWCA Housing has not provided evidence in relation to the YWCA Housing portfolio being established wholly or mainly for the welfare of women aged 55 and over. The age breakdown of tenants before and after the 2007 agreement with DHHS has not been provided, and the age breakdown of tenants in the current YWCA Housing portfolio has not been submitted.
55	Therefore, on the evidence before me, I am unable to conclude that the YWCA Housing portfolio was established wholly or mainly for the welfare of people of a particular age. 
56	On the evidence before me, I am unable to conclude section 60 of the Act applies to the current YWCA Housing portfolio in relation to seeking to preference women aged 55 and over when considering future applications for vacancies which arise in the YWCA Housing portfolio.
Section 88 – Special Needs
57	In their written submissions received on 16 April 2021, YWCA Housing sought a declaration that the YWCA Housing accommodation and certain support services fall within the exemption of section 88 of the Act, including providing housing information and referrals.
58	Section 88 Special needs states:
(1)	A person may establish special services, benefits or facilities that meet the special needs of people with a particular attribute and may limit eligibility for such services to people with the particular attribute.
Example
A community organisation establishes a support group for single fathers in response to research that shows that single fathers have a need for targeted counselling and support.
(2)	A person does not discriminate by establishing special services, benefits or facilities, or by limiting eligibility for such services in accordance with subsection (1).
	(3)	Without limiting the generality of subsection (1)—
(a)	a person may grant a woman any right, privilege or benefit in relation to pregnancy or childbirth;
(b)	a person may provide, or restrict the offering of, holiday tours to people of a particular age or age group.
59	In her affidavit dated 16 April 2021, Ms Dillon stated the Pathways to Independence Program provides client focussed, flexible trauma informed support to clients who are experiencing homelessness or at risk of homelessness, including women escaping from domestic and family violence. The PTI Services provides information on housing pathways, including referrals to essential services, and supports women through brokerage such as rental subsidies, removalist costs, and other vital expenses. The PTI Services are coordinated by a dedicated staff member and supports vulnerable women who are unable to navigate the services independently.
60	YWCA Housing submitted that the provision of housing, and other related support services, to women, are special services, benefits and facilities that meet the special needs of women, particularly disadvantaged women.
61	YWCA Housing submitted that it was entitled to limit eligibility for accommodation and related support services to women, and in certain circumstances to particular subgroups of women, who meet applicable YWCA criteria such as disadvantaged women who have been impacted by family violence, women aged 55 and over, and women who are working.
62	YWCA Housing submitted that it is not required to demonstrate that women (or particular subgroups of disadvantaged women) are a more disadvantaged group than other people seeking housing and support services. YWCA Housing submitted that all that is required is to demonstrate the accommodation and related services offered by the YWCA Housing are to meet the special needs of a group or groups.
63	YWCA Housing referred to the affidavit of Ms Dillon dated 11 February 2021 and its attached documents, and submitted that the evidence shows:
a	the need for affordable housing for women arises from the increased rate of women presenting to specialist homelessness agencies, including a growing cohort of women affected by family violence, and older women;
b	a national report by the Australian Institute of Health and Welfare found a growing level of need for women (as compared to men) who were homeless;
c	a major reason for the increased rate of women compared to men presenting to specialist homelessness agencies is domestic or family violence;
d	there is an increasing need for accommodation for older women who are homeless; and 
e	women are more at risk from the shortage of affordable accommodation and available rental housing, particularly those reliant on either part-time wages or parenting payment included because of gender-based economic inequality.
64	YWCA Housing submitted the evidence demonstrates a growing need for the type of accommodation and related support services offered by YWCA Housing.
65	YWCA Housing submitted that the evidence shows a growing need for accommodation and support services among women, particularly the subgroups identified in Ms Dillon’s affidavit. YWCA Housing submitted that in the circumstances of women who meet the applicable YWCA Housing program criteria, who are at perceived or actual risk of gender-based exploitation and or violence, it is inappropriate to offer those women mixed-gender accommodation services.
66	YWCA Housing submitted it is important that it meet the needs of particular subgroups of women who meet applicable YWCA Housing program criteria, which will enable it to meet its object and purposes of providing affordable accommodation and support services to disadvantaged women. 
67	Ms Mills submitted section 88 applies to YWCA Housing accommodation and the PTI Services. Ms Mills referred the Tribunal to Georgina Martina Inc. 
68	Ms Mills submitted that it was accepted in that decision that the services provided in relation to emergency accommodation and assistance locating housing and related services, provided to women fleeing family violence, were special services within the context of section 88. 
69	Ms Mills referred to Ms Dillon’s affidavit which stated the need for affordable housing for women arises from the increased rate of females to males presenting to specialist homelessness agencies such as YWCA Housing, and that amongst these are a cohort of women affected by family violence and older women.
70	In her affidavit dated 11 February 2021, Ms Dillon referred to a national report by the Australian Institute of Health and Welfare “Specialist Homelessness Services Annual report 2018-19”, attaching a copy of the report to the affidavit and noting that in 2018-2019:
a	the majority of specialist homelessness services clients were female (60%) or more than 173,600;
b	58,700 females presented homeless compared with 53,300 males. This was an increase from 49,800 females and 48,700 males in 2014-2015; and
c	66% of unassisted requests (about 166 requests per day) where specialist homelessness services are requested, but no assistance is received – were from females. Most commonly, agencies were unable to meet requests for accommodation because there is no accommodation available at the time.
71	Ms Dillon stated that a major reason for the increased rates of females to males presenting to specialist homelessness agencies is domestic or family violence, causing them to fear for their safety or for the safety of their children, and that during 2018-2019:
a	40% of clients seeking specialist homelessness services in Australia had experienced domestic and family violence, of which 89% over the age of 15 were females;
b	Victoria recorded the highest number of specialist homelessness services clients who experienced family and domestic violence (50,800) representing almost half (44%) of the national total; and
c	18% of those seeking support from specialist homelessness services were escaping family violence.
72	Ms Dillon stated that another increasing area of need is accommodation for older women, noting:
a	since 2014-2015, the number of specialist homelessness service clients aged 55 and over had risen 36%;
b	in Australia during 2018-2019, more than half (55%) of those aged over 55 who received support from specialist homelessness services were female; and
c	Victoria recorded the highest number of older specialist homelessness services clients (more than 11,3000) representing 47% of the national total.
73	Ms Dillon stated women are more at risk from the shortage of affordable accommodation and available rental housing, particularly those reliant on either part-time wages/salaries or parenting payments (single). One of the main reasons is related to gender-based economic inequality. Referring to the report “Australia’s Gender Equality Scorecard 2018-2019” prepared by the Workplace Gender Equality Agency, women’s average full-time total remuneration across all industries and occupations is 20.8% less than men’s ($25,679 per annum).
74	Ms Dillon stated that due to the consequent increased demand on homelessness agencies to provide accommodation to women, it is important for certain organisations such as the YWCA Housing to provide future accommodation exclusively to females.
75	Ms Dillon also stated that it was important that YWCA Housing can meet the needs for particular subgroups of women who meet the applicable YWCA Housing program criteria, including (but not limited to) women and families who have been impacted by family violence, women aged 55 and over and women who are working (or a combination of these). Given the circumstances of those women and the perceived or actual risk of gender-based exploitation and or violence, YWCA Housing considers it inappropriate to offer these women mixed-gender accommodation services. This will enable YWCA Housing to meet its object and purposes of providing affordable rental housing and accommodation to disadvantaged women on low incomes.
76	Ms Dillon told the Tribunal during the hearing that YWCA Housing has income and assets eligibility criteria, because YWCA Housing is an affordable housing provider, and for particular housing there are also priority groups for people who have experienced family violence, or unsuitable housing.
77	Ms Mills submitted that the special services are provided for people with a particular attribute, being women, and all that YWCA Housing is required to demonstrate is that the accommodation and related services are offered by YWCA Housing to meet the special needs of that group, being women. Ms Mills submitted the statistics show women are at a higher risk of homelessness and more likely to require these services.
78	During the hearing Mr Officer noted that in her affidavit dated 16 April 2021, Ms Dillon concluded the YWCA Housing has drawn from the experience of dealing with a previous claim of discrimination, that it is not entirely clear whether an exception under the Act applies.
79	Mr Officer referred to Ms Dillon’s affidavit which set out the eligibility criteria which applied to all long-term housing owned, managed, or controlled by YWCA Housing. Mr Officer noted that none of the current criteria related to woman versus man, or to special needs, and that despite YWCA Housing’s intentions to add a further criteria of “woman”, the current criteria did not require an applicant for housing to be a woman.
80	Mr Officer also disputed the statistics referred to by Ms Dillon, and referred the Tribunal to the report Homelessness and homelessness services Snapshot, which noted that the 2016 census indicated 58% of people who were homeless were male. 
81	Ms Mills submitted YWCA Housing is not required to demonstrate that women or particular subgroups of disadvantaged women, are more disadvantaged than other groups who may be seeking housing or related support services. Ms Mills submitted that YWCA Housing just needed to demonstrate the accommodation and related services are to meet the special needs of the group “women”, for section 88 to apply.
82	Ms Mills submitted YWCA Housing was seeking a declaration that section 88 applied, in order to provide certainty, given the experience of a previous discrimination complaint against YWCA Housing and the unresolved question of whether or not an exception applied. 
83	In relation to seeking a declaration that section 60 and 88 applied, Ms Mills referred me to Whitehorse Community Health Centre Exemption.
84	I note that section 88 relates to the establishment of special services, benefits or facilities that meet the special needs of people with a particular attribute.
85	As noted above, YWCA Housing has amended the conduct it seeks to have exempt from the Act, and now seeks an exemption to allow it to (amongst of the things) preference women (including to preference women aged 55 and over and women who are working or on low income) in providing access to the PTI Services, a program which provides information on housing pathways, including referrals to essential services, and support through brokerage such as rental subsidies, removalists costs, and other vital expenses.  
86	In its written submissions received on 16 April 2021, YWCA Housing submitted the provision of housing and other related support services to women are special services, benefits and facilities that meet the special needs of women, particularly disadvantaged women.
87	YWCA Housing submitted it is entitled to limited eligibility for accommodation and related support services to women, and in certain circumstances to particular subgroups of women who meet applicable YWCA Housing criteria such as disadvantaged women who have been impacted by family violence, women aged 55 and over, and women who are working.
88	The YWCA Housing submissions referred to evidence indicating a growing need for the type of accommodation and related support services offered by YWCA Housing. YWCA Housing submitted that given the circumstances of the women who meet applicable YWCA Housing program criteria, and the perceived or actual risk of gender-based exploitation and/or violence, it is inappropriate to offer these women mixed-gender accommodation services.
89	While Mr Officer indicated during the hearing that he had no objection to YWCA Housing preferencing females in relation to the PTI Services, I have taken into consideration Mr Officer’s concerns in relation to the statistics relied on by YWCA Housing. 
Findings in relation to section 88 Special needs
90	I accept the report refer to by Mr Officer indicates that the Australian Bureau of Statistics Census information from 2016 estimates more than 116,000 people were homeless in Australia, with 58% being male. 
91	As I noted in the hearing, that report also provided statistics from the Special Homelessness Service (SHS) which is a national dataset about specialist support providers to Australians who are homeless or at risk of hopelessness. In relation to the characteristics of SHS agencies clients, the same report stated that 6 in 10 SHS clients were female, which meant 174,700 female clients. Of the clients who had experienced family and domestic violence, 77% were female. Of the SHS clients with current mental health issues, 61% were female. 61% of SHS indigenous clients were women. 55% of SHS clients who were aged 55 and over were female. 
92	I accept the evidence before me of the growing need for affordable housing for both males and females, and for specific groups such as women, women who have experienced family violence, women aged 55 and over.  
93	I have considered the submissions that the YWCA Housing accommodation could be considered special services, benefits or facilities that meet the special needs of people with a particular attribute under section 88. 
94	I note that in both Georgina Martina Inc, and Anglicare Victoria  referred to in the Applicant’s submissions, the Tribunal recognised the accommodation services provided by the refuges were covered by section 60 of the Act, while the support services provided by the refuges related to section 88. I note the Act specifically addresses accommodation in section 60.  
95	I am not satisfied the YWCA Housing accommodation is a special service, benefit or facility under section 88.
96	I do accept the PTI Services provide information on housing pathways, including providing referral to essential services, and supports women through brokerage such as rental subsidies, removalist costs, and other vital expenses, and is coordinated by dedicated staff members, and supports vulnerable women who are unable to navigate services independently.
97	I do accept the YWCA Housing PTI Services is a special service, benefit or facility that meets the special needs of people with particular attributes, including women, women aged 55 and over, who are experiencing homelessness or risk of homelessness.
98	Therefore, I accept that section 88 applies to the PTI Services, and therefore YWCA Housing may limit eligibility for that service to people with particular attributes, being women, and women aged 55 and over.
Exemption in relation to preferencing women aged 55 and over when considering future applications for vacancies which arise in the YWCA Housing portfolio
99	As noted above, the Applicant seeks an exemption for the proposed conduct in so far as the Tribunal is not satisfied an exception or exemption applies.
100	As noted above, I am not satisfied that section 88 of the Act applies to the YWCA Housing accommodation, and I am not satisfied section 60 of the Act applies in relation to seeking to preference women aged 55 and over when considering future applications for vacancies which arise in the YWCA Housing portfolio. 
101	Therefore, I have considered the application for an exemption to enable the Applicant to preference women aged 55 and over, in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio. (the exempt conduct)
102	Section 90 of the Act requires that I consider whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities Act 2006 (the Charter).
103	In their written submissions received on 16 April 20121, YWCA Housing submitted the proposed exemption is a reasonable limitation on the right to equality, noting that in Georgina Martina Inc, the Tribunal approached section 90(b) of the Act as importing the test in section 7(2) of the Charter. 
104	YWCA Housing noted that in that case the Tribunal held it as justifiable to limit men’s right to equality in respect of employment, in circumstances where the service being offered are designed to meet the needs of women fleeing violence and seeking a place of safety and support, to ensure those needs were appropriately met. 
105	YWCA Housing submitted similar circumstances applied to their application, and that the conduct sought to be exempt is proportionate having regard to the relatively small size of the YWCA Housing portfolio, and the various needs of the women YWCA Housing seeks to assist.
106	YWCA Housing submitted that while the conduct they seek to exempt will limits men’s right to housing and related housing services, this would be a proportionate consequence of the exemption sought, as the exemption seeks to address the needs of particular subgroups of disadvantaged women such as women impacted by family violence, women aged 55 and over, and women who are working. 
107	As noted above, when making decisions about exemptions, I am required to give proper consideration to relevant human rights as set out in the Charter.
108	I note section 7(2) of the Charter states that a human right may be subject under law only to such reasonable limitations as can be demonstrably justified in a free and democratic society base on human dignity, equality and freedom. I have considered all the relevant factors including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. 
109	This exemption limits the right to equality and in particular the right to equal and effective protection against discrimination of, men who seek accommodation in the YWCA Housing portfolio, and women aged 54 years and younger, who seek accommodation in the YWCA Housing portfolio. 
110	I accept YWCA Housing’s submissions in relation to the importance of addressing the growing need for affordable housing for women aged 55 and over.
111	I also note YWCA Housing has clarified and amended the conduct which it seeks to exempt from the Act, to focus the conduct on new applications and not affect current residents. 
112	I accept the exempt conduct is focused and specific in relation to the purpose of addressing the growing need for affordable housing for women aged 55 and over.
113	I also accept YWCA Housing broadened its portfolio and the residents it provided accommodation to in 2007, but has since refocused on the objects outlined in its constitution: to address the growing need for affordable housing, including the growing need for affordable housing for women aged 55 and over.  
114	Given the growing need as outlined in the statistics provided by YWCA Housing and Mr Officer, I am not satisfied there are less restrictive means reasonably available to achieve the purpose YWCA Housing seeks to achieve.
115	I am satisfied that, in the circumstances discussed above, the limits imposed by this exemption is reasonable and justified under the Charter. 
116	I have also considered how long the exemption should be granted. 
117	While I note YWCA Housing sought an exemption for a five-year period, I also note this is the first time such an exemption has been granted to YWCA Housing. There is currently no proof as to its effectiveness. 
118	I consider a period of three years would be sufficient to show the exemption was effective in providing affordable housing for women aged 55 and over. 
119	Therefore, I have decided to grant the exemption for a period of three years. At the conclusion of that time, YWCA Housing can seek another exemption if it chooses.
120	Based on the material before it, I am satisfied that it is appropriate to grant an exemption from sections 52, 53, 107 and 182 of the Act to enable YWCA Housing to preference women aged 55 and over, in considering future applications (including applications from existing residents other than those seeking a transfer application due to issues with their accommodation beyond their control relating to their safety, significant repairs or that makes their accommodation no longer tenable) for vacancies which arise in the YWCA Housing portfolio. 
Request for a declaration
121	I have considered the YWCA Housing’s request for a declaration pursuant to section 124 of the Victorian Civil and Administrative Tribunal 1998 (Vic). 
122	YWCA Housing seeks the declaration in order to provide certainty, given their experience of a previous discrimination complaint, and the unresolved question of whether or not an exception applied.
123	As noted during the hearing, a declaration is not proof against a future claim of discrimination, nor is it a defence to such a claim.
124	I note my decision above relates to the current YWCA Housing portfolio and the PTI Services. I consider the YWCA Housing portfolio is a dynamic portfolio that has changed over time, and I note that YWCA Housing plans to add to and grow the portfolio in the future. 
125	As noted above, at the time of this decision I accept section 60 of the Act applies to the current YWCA Housing portfolio in relation to persons of a particular sex, as I accept the current YWCA Housing portfolio was established mainly for the welfare of persons of a particular sex. I also accept the PTI Services as described, are special services under section 88 of the Act.
126	If the YWCA Housing constitution and objects were to change, or if the YWCA Housing portfolio composition was changed by adding a significant proportion of properties established not for the welfare of women, that could mean the YWCA Housing portfolio was no longer established wholly or mainly for the welfare of women, and therefore section 60 may cease to apply.
127	Given the dynamic nature of the housing portfolio, I consider the composition of the YWCA Housing portfolio may change over time, and therefore the assessment of whether the YWCA Housing portfolio was established wholly or mainly for the welfare of persons of a particular sex may change over time. Similarly, I consider the nature of the PTI Services may change over time.
128	In these circumstances, I am not satisfied a declaration is appropriate. It is for YWCA Housing to continue to reflect on the accommodation and support services it provides, the objects of those services, and the application of the exemptions and exceptions in the Act. 
129	Given the above, I have decided to refuse the request for a declaration.

C. Thwaites 
Member