What a performance: Lau v Moorilla

By Pip Stafford

I am not a lawyer (nor am I a cat).^[1] But I am a law student and legal research assistant. I am also an artist and a feminist. So, as you can imagine I have some thoughts about the recent judgment handed down by TASCAT: Lau v Moorilla Estate Pty Ltd ^[2] AKA the Mona Ladies Lounge Discrimination Case.

This piece of writing is going to be part-case note and part-discourse analysis. I hope its legible and understandable for someone who hasn’t been elbows deep in Lexis Nexis for the past 4 years (that’s a law school joke).^[3] I was going to cleave it into three equal parts: the hearing, the judgement, and then the response, but it’s probably going to be a bit of everything at once (with so many footnotes).^[4]

The facts

In brief: a male visitor to the Museum of Old and New Art (‘Mona’)^[5] called Jason Lau brought proceedings against Moorilla Estate Pty Ltd (the parent company of Mona) under the Anti-Discrimination Act 1998 (Cth) (‘the Act’) vis a vis being denied entry to the exhibit ‘the Ladies Lounge’. His complaint was that this conduct was discriminatory on the basis of gender.

Hearing. Judgment. Discourse. So help me god

When a government enacts legislation that purports to curtail discrimination it feels like a Good Thing and it is. We imagine such Acts will have the effect of cutting down discriminatory bad guys; silks wielding the statute as an Arthurian sword in the name of progress and equality.^[6] So when someone uses said legislation in a way that might prevent a hitherto marginalised group of people from Doing A Thing it seems a lot like Bad Faith.

I’ve seen plenty of angry social media comments that have said all sorts of unflattering things about Mr Lau, I quote: ‘incel vibe’, ‘some insecure bloke suffering fomo’, ‘way to miss the fucking point’.^[7] I don’t know who Mr Lau is, or what his vibes and levels of insecurity are – hey, he represented himself at the Tribunal (and won)^[8] – but let’s assume that his claim was not in bad faith and that he genuinely felt discriminated against by the fact that he couldn’t gain entry to one room in a quite large private museum.

Law school attempts to train us to look at all the circumstances, to analyse all possibilities (even when we really don’t want to) ^[9] – so I am going to attempt that, here.

On a personal note: I have experienced the Ladies Lounge as curated by Kirsha Kaechele (‘KK’) – in its early days I was able to experience a sort of ‘test’ version of the ‘High Tea for Two’ with my friend and artistic collaborator Julia Drouhin. It was fun. Artists I know and respect were involved in its design, construction, and on-going performance – like everything^[10] at Mona the Ladies Lounge is the result of a team effort, rather than a vision designed, devised, and created by one person. It’s a beautiful space. That green, hey? It’s designed to be exclusive, but also sits right in a thoroughfare in the main part of the museum. The only things that really separate you from everyone else are the lush, green curtains that form the ‘space’.

‘The project is illegal’

One thing I want to address straight up is the idea that the ruling by TASCAT makes the whole project ‘illegal’. I’ve seen a number of people assert this – Natasha Cica writes that it ‘deems the Ladies’ Lounge project at MONA [sic] to be unlawful’.

It does not.

The Lau v Moorilla Tribunal found that the denial of entry to persons who do not identify as ladies to the Ladies Lounge is ‘direct discrimination’ prohibited by the Act (sections 14, 16(e) and 22) and not permitted by virtue of section 26.^[11]

Under the order made (per section 89 of the Act) Moorilla must cease refusing entry to the exhibit by persons who do not identify as ladies.^[12] This does not make the whole project unlawful.

The curator, KK, has previously said she would shut the installation if the outcome was to permit non-ladies (that is, men) to enter. So that’s a choice (made before the decision on the complaint). And I get it: as a relational artwork the message and the experience is watered down if it is no longer ‘ladies only’. Maybe at a stretch you could say that the concept (to the extent it requires exclusion on this basis) is unlawful? But, the fact remains, the Ladies Lounge could still exist, if only in a neutered form.

Look, I know this ‘it’s illegal!’ response is hyperbolic, but if we are being accurate (and I am at least trying to): what has been deemed unlawful is the impugned conduct that was found to be in breach of the specific provisions of the Act.

So there.

I don’t want to go too much into the ‘equal opportunity’ reasoning that forms the main part of the judgment because, honestly, I want to focus on other things and you can just read it for yourself in fairly plain language. But for completeness I will say:

Once Mr Lau established that discrimination occurred as defined under the Act, the onus shifted to the respondent, Moorilla, to establish any exceptions that would apply to the Ladies Lounge.

Moorilla raised a defence under section 26 of the Act which provides an exception for promoting equal opportunity.^[13]

In his judgment Greuber DP compares this exception at section 26 to that in section 55 – which excludes prohibitions under two specific sections of the Act if the conduct is a ‘public act done in good faith for artistic purposes’ (at section 55(c)(i)). The reason why Moorilla did not rely on section 55 is that it does not provide an exception for conduct under section 16 (which is the ‘discrimination on ground of attribute’ provision, which includes gender) and therefore was not useful to them once ‘discrimination’ under section 16 had been made out.

Instead, Moorilla contended that the Ladies Lounge was an arrangement to promote equal opportunity, using the discrimination of women, as a disadvantaged group as evidence of the Ladies Lounge’s intention to promote equality for women.

Reading the interpretation of ‘arrangement’ broadly the Deputy President came to the conclusion that the Ladies Lounge was in fact an arrangement for the purposes of section 26. Where this argument comes unstuck for Greuber is in the ‘promoting equal opportunity’ bit. He points to the fact that evidence given by KK and Jarrod Rawlins does not reveal an equal opportunity ‘intention’ as required by the Act.

The sections of Rawlins’ testimony shared in the judgment do touch on the disparity in the art world regarding gender but were also revealing of the Mona organisational culture. Rawlins calls KK ‘out of control’ and (potentially) ‘hysterical’^[14] and recounts the genesis of the project as something that was ‘mocked’ and ‘ridiculed’ by Mona owner David Walsh (who then incongruously ordered two lounges be designed).

In her testimony at times KK seemed engaged with the need to provide evidence to establish the exclusion under section 26. I particularly enjoyed the poetry of:

‘Over history women have seen significantly fewer interiors’

But she also conflated chivalry with equal opportunity measures, and according to the Tribunal, did not, through her evidence, establish a disadvantage by women in respect to access to spaces. This is frustrating of course, because it is a fact that many women have been and are still disadvantaged with regard to access to ‘spaces’ (particularly spaces that act in the concentration and maintenance of power) but the Tribunal is only considering the evidence and the circumstances revealed to them through the proceeding.

In reading the materials provided in the judgment I can see why the Tribunal came to its decision (even if I don’t agree with it) – the delivery of evidence was seated in the very Mona culture of subversion – that, even in its engagement with the aesthetics of activism and progressive ideology, is sometimes lacking in depth and is somewhat unnecessarily self-referential. Often this serves them well (it is an excellent marketing technique) but here it did not.^[15]

Moving on.

A club by any other name…

Early in the judgment Greuber DP states:

‘If the Ladies Lounge were a women-only club it might well be able to lawfully function for its members as it functions now for women patrons of Mona.’^[16]

The Deputy President is not being glib here, he is foreshadowing the reasoning behind the judgment based on the relied-on provisions of the Act.

A lot of the discourse (okay, ‘people on the internet’) I have read raises the idea that this judgment will somehow, ironically, bust open the doors of men’s only clubs to women. It’s a fun imagining.

But, sorry, it won’t.

In short: men’s only clubs are protected under the Act under the exception at section 27.

Moorilla did not rely on section 27 and no order was made regarding that provision. There is no link between this judgment and section 27 and therefore, as far as I can see, no legal ground on which to hang this theory.

The traditional ‘private members’ club’ populated by men of the upper class are built on the fact that exclusivity is highly valued (and paid for) and as a neat little bonus (for those in power) they help maintain the status quo. As someone on Instagram said:^[17]

‘men do this sort of thing just for the sake of it, to point out how important they are’.

There is a long history of discrimination against women by men in the form of these spaces. There are a number of very famous ones in London, where members of the upper class (probably) maintained their boarding school allegiances and picked members of Cabinet. And they still exist – in Australia too. These clubs tend to be sites of power, membership is made up of the ruling classes and those rich enough to buy their way in. Members were (and are) subject to vetting and prohibitive fees – and they were known not only to exclude women, but on the basis of race and class too:^[18]

‘…secrecy, luxury and networking with a small circle of old chums – while keeping outsiders firmly at bay.’

The thing about exclusivity is that people love it (until they are the ones excluded from it).

As anyone in marketing knows, exclusivity adds value through perceived scarcity and through secrecy – it makes those who are invited in feel special. I can personally attest that there is no nicer feeling than, when at a music festival, being able to use a special pass on a special lanyard to access the less populated toilets backstage.^[19] I imagine most people have fallen prey to the pull of the exclusive at one time or another and have felt the ‘fomo’ generated by being on the wrong side of the velvet rope.

The Ladies Lounge isn’t the only thing at the museum that uses exclusivity has a hook. Mona offers several premium experiences that can be paid for (by anyone who has the cash or credit). These are offered on their website under the content header “Really Fancy Stuff to do at Mona” and this year the (previously invite only) Mona Gala is available for a limited few ($400-plus-booking-fee). Then there’s David Walsh’s whole pokies are bad^[20] but high-end gambling is okay (as long as it happens in a private club) thing.^[21]

Anyway, what I want to say is:

It is not an accident that s 27 of the Act protects archaic institutions like ‘private members’ clubs’.

A short history lesson

The 1980s and 90s in Tasmania were a time where wildly racist, sexist, classist and homophobic views were aired in Parliament, the media, and literally anywhere entrenched (mostly) men could get a column inch. The fact that the Anti-Discrimination Bill was (eventually) successful in any form is a miracle. Or more accurately the work of some very persistent activists and more progressive politicians. Between the failure of the first bill of this type, and the success of the 1998 Act, Tasmanian members of Parliament made some pretty telling public statements about the codification of such rights – specifically where gender and sexual orientation were concerned.

For context, homosexuality was still criminalised in Tasmania at this point. One of the things that put pressure on the Government to revisit and pass discrimination laws was the courageous Nick Toonen’s successful UNHRC Complaint which put the state’s draconian laws under the international spotlight. At the time (PLP Member and future Premier) Ray Groom public stated that sexual orientation provisions in the bill were “going too far” and that “some conduct can be offensive and wrong”.

In Hansard (9 August 1994) Labor member for Franklin, Fran Bladel notes the ‘thirty-odd’ amendments to the Bill pushed by the Liberal Party, some of ‘little substance, but some of them […] changed the nature of the Bill; they removed it from being an anti-discrimination bill to a bill which allowed discrimination against some sectors of the community but not against others’.^[22] It is not a long bow to draw then, that to pave the way for this bill through Parliament, concessions would have been made with regard to some of the interests in the room. This becomes especially obvious when reading statements like Michael Hodgman’s which claimed (at a meeting of the Tasmanian Registered and Licensed Clubs Association, no less) that ‘frenzied feminist extremists’ would use any such legislation to ‘force their way into every male bastion’.

To be clear: I think that of the MPs in opposition to this bill, a decent proportion of them would have been members of one of the men’s-only clubs that existed in Tasmania at the time. The clubs provided sites of concentrated power, specifically excluding those who would have had personal interest in passing anti-discrimination laws.^[23] Likewise, these men had a vested interest in making sure a clear exclusion for men’s only clubs was included in the new legislation.^[24]

In contemporary society many clubs have worked to reinvent themselves and new ones have opened that attempt to subvert or flip the model. Like Mona, these clubs are privately owned venues that market themselves on being spaces for hedonism and indulgence. Mona has been called (or did they say it themselves?) a ‘subversive adult Disneyland’. You pay to get in. You pay a premium price to do certain activities. One of those premium activities is centred on the Ladies Lounge.

Are you picking up what I am putting down here?

Mona could be characterised as a club. Therefore, the Ladies Lounge is a club within a club. A club squared if you like. If the whole conceptual point of the Ladies Lounge was to skewer these types of exclusive venues that are ‘private members clubs’ – then it is literally an inversion used to highlight the exclusivity and, yes, discrimination, that these clubs engender.^[25]

So, why didn’t Moorilla counsel rely on s 27?

That is a rhetorical question because I don’t know. Look, they likely had a good reason that I am completely missing or just not privy to.^[26]

In reading the judgment, I do wonder if KK and the Mona team initially saw this as a vexatious case, perhaps a vehicle for media coverage (and they got a lot of it – worldwide),^[27] but that it would be swatted away like an annoying fly.^[28]

But complaints made under the Act are taken seriously (as they should be) and so when the Anti-Discrimination Commissioner saw fit to refer it to TASCAT, a hearing was held. Tribunals are generally a lot less formal than actual courts, people do often represent themselves (unless ordered not to) and the rules of evidence are much looser than in higher courts. This is likely why it was possible for KK and her coterie to make the proceedings into an extended performance work (though this was remarked on negatively in the judgment, and I understand one court-sketch-artist-cum-videographer was barred from entering the court for the rest of the day for attempting to video). More as an aside than anything: one wonders how the performance of the witness (for KK is a witness in this case, not a party) can be separated from the arcane performance of legal theatre in any case?

But that is a line of thinking for another day.

A couple of last things on language and context (I promise I am nearly done).

Firstly, the first line of the judgment invokes Caravaggio and Jeff Koons as artists who have had ‘difficult relationship[s] with the law’. Sorry, but did the Deputy President do a quick google on this? I reckon if you’re going to contextualise a judgment about gender discrimination and art, using two male artists (one who famously bloody loved a punch-on and – allegedly – committed homicide; and one who is the pinnacle of White Dude Commercial Art Success) is not a strong opening. I guess a judgment isn’t an art history essay but there are many (non-cis-male) artists working in the nexus of contemporary and historical gender discrimination who may have made the point slightly more salient.

Secondly, ‘ladies’ is a weird word, hey? It’s used through the judgment (noted as in place of ‘women’). While gender is all a social construct, I feel like ‘ladies’ is especially… performative. It is suggestive of class, among other things.

But it could be argued that in using this type of language the Ladies Lounge is leaving a crack open for, well, anyone to enter the Lounge. They simply have to perform being ‘lady’.

The thing about projects like the Ladies Lounge is that they ask you to approach them with a bit of openness, a bit of humour and a bit of joy.^[29] It’s easy to be a cynic in this world, easy to give in to the discourse and to our base insecurities. The Mona website states regarding entry to the Lounge:

Any and all ladies are welcome.

I suspect that that if a man, in good faith and in good humour, was so very keen to gain access, he could (in the spirit of Mona’s libertarian roots), instead of leaning into the performance of the justice system, instead indulge in the theatrical tradition of donning a costume, and assert himself to be A Lady (again, in good faith and good humour) and thus may simply be allowed access.

I don’t like the decision.

I think that it is made on subjective grounds in terms of what is and isn't an equal opportunity arrangement under s 26 by reference to cases with very different circumstances. I also wonder about the use of a broad interpretation of 'arrangement' paired with a narrow one for 'equal opportunity'. Especially in the circumstances of the case.

But I also think that (based on the limited information in the judgment) the Mona evidence was not focused enough what might establish the s 26 exclusion.^[30] Even more than that I think that the proceeding represents a snaky, pernickety and, yes, bad faith, use of the legal system to make a point that someone thinks is clever and is actually not.

But let’s put it very plainly: Lau was excluded from an artwork which is (arguably) a vehicle for examining the very nature of a specific type of discrimination (in a way that is actually pretty innocuous). ^[31] I fail to see how the complainant could be detrimentally affected in any substantial way by not being allowed into a curtained section of a private museum, regardless of the reasons behind that exclusion.^[32] I’d love to know why Equal Opportunity Tasmania/the Anti-Discrimination Commissioner thought it established the threshold for referral to TASCAT and I am honestly surprised that it was not rejected under section 64(1)(a) as ‘lacking in substance’. A mystery.

To conclude:

The Ladies Lounge was likely never intended to be permanent. The museum morphs and changes, art works come and go. Things get sold, borrowed, moved on. It’s a good thing – we, as museum visitors, then get to see new stuff. A new exhibition opens in June.

Will the Ladies Lounge be dismantled, and the judgment become an on brand and conceptually proximate, if frustrating, end to the project, or will Moorilla appeal to the Supreme Court?

I guess we will see.