Background
“From Caravaggio to Jeff Coons, artists and their art have at time had a difficult relationship with the law” says Deputy President Grueber in his decision published on 9 April 2024.
Kirsha Kaechele appears to be the next artist whose relationship with the law has been brought into question. As the curator of the “Ladies Lounge” at the Museum of Old and New Art (MONA) in Tasmania, Kaechele was the subject of an Anti-Discrimination complaint by New South Wales resident Jason Lau, who visited MONA in April 2023.
The Lounge is a space for women and was created in reference to historic gentleman’s clubs that barred women from entering. The Lounge is limited to those who identify as “ladies”, it is a piece of art within itself, but also contains other significant works of art.
Mr Lau contested his refused entry into the Lounge was discrimination contrary to the Anti-Discrimination Act 1998 (TAS) (Act).
The law
The issues for determination were:
- Was Mr Lau discriminated against;
- Whether the artwork falls within the exception in s26 of the Act;
- The prescribed attribute for the purpose of s26 is gender pursuant to s16(e); and
- Whether the Lounge is a program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantages or have a specific need because of their gender.
To discriminate or not to discriminate, that is the question
As to discrimination, the Tribunal said the true reason for the refusal of entry to Mr Lau was his gender. The only qualification for entry is gender. Counsel for MONA observed that the installation is a participatory installation, and Mr Lau experienced the artwork, but way of his exclusion. Noting that exclusion is an essential part of the experience.
The Tribunal did not accept that position and determined, pursuant to s14, 16 and 22 of the Act, Mr Lau had been discriminated against.
What about us…
Part 5 of the Act sets out exceptions to discrimination. The Tribunal looked at:
- Section 26 – promoting equal opportunity;
- Section 55 – public purpose (or artistic purpose); and
- Section 27 – gender (religion institutions, education, accommodation and membership).
The substantive submissions revolved around s26 of the Act.
Mr Lau argued the goal or intent of the lounge to champion equal opportunity for women was unclear for the purposes of s26. That the section was “designed to permit positive discrimination and not negative discrimination.”
MONA argued the Lounge is an arrangement to promote equal opportunity and for the purpose of s26 it is the intention or purpose of the arrangement that governs the characterisation of it as non-discriminatory (ie the effect of s26 is to permit discrimination rather than to make the conduct non-discriminatory).
The orders and decision
The Tribunal was satisfied that disadvantage experienced by women artists as a group in having artwork displayed at MONA and other art museums inspired and precipitated the Lounge. The Tribunal was however, not satisfied that it is an “arrangement” designed to promote equal opportunity for that group as required by s26 of the Act.
The Tribunal also considered Kaechele’s intention, given her close proximity to MONA. Her intention was to redress the historical experience of women being excluded from spaces. This argument fell on its feet and did not satisfy s26 of the Act due to lack of evidence.
The Tribunal Ordered:
- Within 28 days from the date of the order, Moorilla Estate Pty Ltd is to cease refusing entry to the exhibit known as the Ladies Lounge at the Museum of Old and New Art by persons who do not identify as ladies; and
- Any application for an order for costs is to be made with supporting submissions within 21 days.
Comments
Ultimately, the Tribunal found the Lounge exists for its own purpose. Although it may have a valid moral or ethical or pedagogical purpose, it cannot reasonably be intended to promote equal opportunity.
Accordingly, the exclusion by the Lounge was not permitted or excused by reference to s26 of the Act.
This case, is a very modern example of the strict interpretation of s26 of the Act. For discrimination to be permitted on the basis of equal opportunity, it must promote genuine equality (ie strategies to increase women in executive roles) and not merely exclusion based on gender.
This case has brought a lot of attention to women’s experience, rights, and historical inequality. It has highlighted men’s clubs and organisations with exclusions based on gender; and it begs the question, is this the first of many cases we’ll see brought to the Tribunal based on gender discrimination?
This article was written by Katherine Barclay, Special Counsel, Jayden Hennicke, Solicitor and reviewed by Sarah Sealy, Partner.