Mona’s female-only Ladies Lounge to be decided in Hobart’s Supreme Court

‘We need to bring opposing viewpoints into the light of scrutiny with interest ... this is how we build a beautiful society,’ says the curator behind Mona’s Ladies Lounge. The details >>

Kirsha Kaechele after the decision. Mona ladies lounge appeal verdict at the Supreme Court of Tasmania in Hobart. Picture: Nikki Davis-Jones

A Hobart judge has quashed a Tasmanian Civil and Administrative Tribunal (TASCAT) decision that the female-only Mona Ladies Lounge allow in men, instead stating it could be “seen as an arrangement to promote equal opportunity”.

Acting Justice Shane Marshall handed down his brief decision on Friday, where he directed the discrimination matter to return TASCAT for reconsideration after he found “several errors of fact and law in the decision of the Tribunal”.

NSW man Jason Lau launched a case for discrimination with TASCAT by stating he had suffered discrimination when refused entry to the Ladies Lounge in April 2023.

Kirsha Kaechele leads supporters into court. Mona ladies lounge appeal verdict at the Supreme Court of Tasmania in Hobart. Picture: Nikki Davis-Jones

Greg Barns SC, representing Mr Lau, previously stated in court that he did not argue with the Lounge’s artistic purpose of highlighting gender imbalances in society, but that the discrimination act did not have any creative scope to allow for discrimination by gender.

TASCAT ruled that refusal of Mona artist and Ladies Lounge curator Kirsha Kaechele to permit Mr Lau entry into the Ladies Lounge was direct discrimination which is prohibited by the Act.

The tribunal also found that the Lounge did not fall under Section 26 of the Discrimination Act, which allows for discrimination if a project is designed to promote equal opportunity for a group of disadvantaged people.

Acting Justice Marshall said the tribunal had made errors in its “mischaracterisation of what the Ladies Lounge was designed to promote and how that was intended to be achieved”.

This included in focusing on the Ladies Lounge as promoting female artists as a group, which Acting Justice Marshall said was not what Ms Kaechele had presented the Lounge as for.

Kirsha Kaechele after the decision. Mona ladies lounge appeal verdict at the Supreme Court of Tasmania in Hobart. Picture: Nikki Davis-Jones

“By focusing on a group in respect of which the appellant did not rely on to promote equal opportunity the Tribunal asked itself the wrong questions when considering whether s 26 was satisfied and thereby made an error of law,” Acting Justice Marshall said.

“The correct approach to s 26 is to ask first whether the arrangement’s purpose was to promote equal opportunity.

“On the evidence, the unequivocal answer is yes because the Ladies Lounge was designed to provide women with an exclusive space where they receive positive advantage as distinct from the general societal disadvantage they experience as evidenced by the Report Card.”

The decision came much to the joy of Ms Kaechele, who danced in celebration to the Eurythmics song Sisters Are Doin’ It For Themselves outside Hobart’s Supreme Court alongside supporters.

Kirsha Kaechele after the decision. Mona ladies lounge appeal verdict at the Supreme Court of Tasmania in Hobart. Picture: Nikki Davis-Jones

Ms Kaechele, accompanied by her daughter Sunday, said she was grateful to have the “privilege” of democracy, when many women don’t.

“I’ve had the opportunity to bring this argument into the light of the law more than ever,” she said.

“We need peaceful debate.

“We need to bring opposing viewpoints into the light of scrutiny with interest, examine opposing positions and refine our own perspectives – this is how we build a beautiful society and I’m very inspired by the occurrences of the department today.

“In 30 seconds, the patriarchy was smashed, and the verdict demonstrates a simple truth, women are better than men.”

When asked how the court’s findings reflected in art, Ms Kaechele said the day’s findings showed ‘true marriage between art and life”.

The women-only ladies' lounge at Mona. Picture: Jesse Hunniford

“At this point, it would be unfair to say it’s just art or it’s just law or a courtroom proceeding,” she said.

“It’s really simultaneously art and life.”

Counsel for Mona Catherine Scott acknowledged that the cases was challenging at a “conceptual level”.

“The cases were certainly challenging at a conceptual level in terms of appreciating what the Ladies lounge was designed to do and how it could actually promote equal opportunity, and it was quite novel in terms of the arrangement that was proposed,” she said.

“What really stands out, I think, is that the court had choice.

“The court could have looked at this at a high level, like we saw in the tribunal, but it chose to engage with the way in which the Ladies Lounge was put in terms of promoting equal opportunity so that’s really pleasing to see that.”

Ms Scott said Mona had a “degree of confidence” that once the matter is heard at TASCAT again, the section 26 exception will be upheld based on the court’s findings.

Originally published as Mona’s female-only Ladies Lounge to be decided in Hobart’s Supreme Court