DANIEL:

On a chilly Tasmanian morning, a media pack of cameras and journalists are pitched outside a bar in Hobart.

They’re waiting for Kirsha Kaechele, an artist, curator, and wife of the owner of MONA.

When she finally emerges, she’s followed by a conga line of supporters, dressed in navy suits and pearls.

They’re on their way to the Supreme Court of Tasmania, to appeal an anti-discrimination ruling. A ruling which forced Kaechele to shut down one of her art installations.

And Kaechele couldn’t appear happier to be going to court.

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DANIEL:

From Schwartz Media, I’m Daniel James. This is 7am.

In a case that made international headlines and intrigued legal experts, a man took legal action against MONA’s Ladies Lounge, an art installation designed to highlight the historic and ongoing disadvantages faced by women.

At the heart of the case is a question, how does a lavish lounge exclusively for women promote “equal opportunity”?

Today, contributor to The Saturday Paper Gabriella Coslovich, on what happens when discrimination is the artwork.

It’s Friday, September 20.

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DANIEL:

Gabriella, tell me a bit about the Ladies Lounge at MONA. For those who don't know, what is it? And you've actually been there, haven't you?

GABRIELLA:

I have. I visited in March, and it's really just a small private room inside this huge museum that everyone knows so well, MONA. And it's really just a cordoned off space that's bordered by, you know, long green silk curtains. And there's a woman sitting at the front of this room, and she will only allow in ladies or people who identify as ladies. So no men allowed. The only time they're allowed in there is for special events, and then there are male butlers who have been hired to lavish and praise attention on the ladies.

Audio Excerpt - Kirsha Kaechele:

“Well, I'm in the Ladies Lounge at MONA. It's a beautiful space for women to escape this strange and disjointed world of male domination and relish in the pure company of women while being served by a retinue of butlers who live to give us every dream and joy.”

GABRIELLA:

It's very tongue in cheek and playful and, essentially, you go in there and there's a big green velvet couch and there's some artworks. It was interesting to see the difference between men's reactions and women's reactions. I was inside the lounge and I could hear a guy outside saying, is there a men's lounge? And then he said, the last time I went to a men's lounge it cost me a couple of hundred. You know, so sort of poking fun a bit but he was, he seemed a little bit upset about it and yet, inside the lounge, it was interesting to hear what women were saying and, there was a young woman in the lounge and she just said, it's so nice to be told that only ladies can come in here. But it's this very feature of the Ladies Lounge, the fact that men aren't allowed, that's what's got the Ladies Lounge into legal trouble.

DANIEL:

So it sounds delightful.

GABRIELLA:

It is.

DANIEL:

But how did the Ladies Lounge first wind up in legal trouble?

GABRIELLA:

Well, It wound up in legal trouble because last year in April, a man called Jason Lau, a man from New South Wales, visited MONA and he wasn't allowed in because that's the whole point of the artwork. And he took exception to that and he thought, well, that's discriminatory.

Audio Excerpt - Sky News Reporter:

“Jason Lau complained: I visited MONA. Paid $35 on the expectation I would have access to the museum and I was quite surprised when I was told I would not be able to see one exhibition, The Ladies Lounge. Now, Jason Lau has taken the museum to the Tasmanian Civil and Administrative Tribunal alleging discrimination. “

GABRIELLA:

So Kirsha was delighted that this case had been brought to the tribunal, that it had been brought to the courts, because it was a way of actually showing what the artwork is about.

Audio Excerpt - Kirsha Kaechele:

“And I'm extremely grateful to Mr. Lau for the lawsuit because we get to exercise the argument. And I think it's completely fascinating.”

GABRIELLA:

It highlights that the very fact that men are being rejected from the Ladies Lounge means that they are experiencing the artwork as she intended. You know, the very intention of the artwork is to let men experience what it's like to be discriminated against.

DANIEL:

So the main statement that the artwork is making is that rejection in itself is an artistic statement. That doesn't necessarily sound like a solid legal argument, so how did that play out at the tribunal?

GABRIELLA:

That's right. It is a really interesting legal case. How do you argue in law that the Ladies Lounge should exist? The Anti-Discrimination Act has an exemption, it has many exemptions, and the exemption that MONA's legal counsel were relying on is Section 26 that allows for discrimination if a plan or program or arrangement promotes equal opportunity for a group of people that have been disadvantaged. So at the tribunal, Jason Lau represented himself and he appeared via video link, video conferencing, and he made his case and his case was that he didn't think that Section 26 could apply in this case because he couldn't see how the Ladies Lounge provided equal opportunity. He saw it as actually reinforcing a discrimination, i.e., men are not allowed to enter.

Kirsha and all of her supporters, they were very cheeky and they performed a very silent synchronised routine inside the tribunal. You know, they were crossing and uncrossing their legs and they were peering down their glasses at the proceedings and... nothing rude, but just, you know, nonetheless, they were performing in the court. And the tribunal member in his ruling noted this, noticed this behaviour and said it, you know, bordered on contempt of court.

So in April, the tribunal handed down its decision and it basically said that MONA had to stop discriminating against men and it could do that in a number of ways. It could either close the Ladies Lounge or remove it or reform it or let men enter.

Audio Excerpt - Artist Kirsha Kaechele:

“It doesn't seem right that the Ladies Lounge has to close. I think that, I think that the court took too narrow a reading of the Anti-Discrimination Act.”

GABRIELLA:

And she thought, hmm how could I reform it? And I remember speaking to her about it at the time and she thought, well, I could make a Sunday school there because religious institutions are exempt from discrimination. There's a whole lot of other discrimination exemptions.

Audio Excerpt - Artist Kirsha Kaechele:

“I.e. toilet, church, school, reform school. There's a number of exemptions, and I think we might be able to meet all of them.”

GABRIELLA:

But she decided at the end to simply close it and to appeal the arguments that were made at the tribunal.

DANIEL:

After the break, the case finds its way to the Supreme Court.

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DANIEL:

So Gabriella, let's turn to the appeal. The tribunal decided that the Ladies Lounge was discriminatory. The case has now made its way to the Supreme Court. Where is it up to at the moment?

GABRIELLA:

So this week, the appeal was on at the Supreme Court of Tasmania and, just as we had during the tribunal hearing in March, it was a, it was quite a, quite a spectacle. Not inside the court, because you have to behave inside the court, but outside the court Kirsha reprised the performances that she had organised during the tribunal hearing. Well, this time she had something like 60 or 70 supporters with her, all dressed in navy suits and pearls and very well-groomed, looking very serious. And they walked, very slowly and deliberately, into the Supreme Court of Tasmania. This time, however, we seemed to have a more sympathetic hearing with acting Justice Shane Marshall. But essentially we had MONA's counsel, Catherine Scott, reiterating that the Ladies Lounge could exist under section 26 because each promoted equal opportunity in the broadest sense. She cited the Australian Government's Status of Women Report Card, which showed that women were less respected, less valued and less powerful than men, how women are less likely to be in the top roles in a normal organisation. They don't get those high profile roles, or they're less paid, etcetera etcetera, we all know the stats. So she was arguing that Section 26 does apply and that the tribunal didn't apply that exemption appropriately and that they erred by not doing that, that this Section 26 was absolutely valid.

DANIEL:

But you mentioned that this time around, the judge in this case appeared more sympathetic. So how has the judge reacted so far?

GABRIELLA:

There was an interesting, sort of, exchanges between MONA's counsel and the judge. Acting Justice Shane Marshall borrowed a phrase that MONA's counsel, Catherine Scott, had coined. She described the Ladies Lounge as, you know, a flip universe where it's the men who are side-lined, you know, in the same way that until 1965, women in Australia were forbidden to drink at a public bar with men and were relegated to the so-called Ladies Lounge. This Ladies Lounge at MONA flipped that around and said, men, you're not allowed to enter. He knows it's discrimination. He talked about, you know, yeah, the Ladies Lounge, where my mother and I used to get shunted in pubs in Port Melbourne.

DANIEL:

So it sounds like the judge is more sympathetic to the argument. Got to be careful that we don't assume too much there, but what did the defence have to say?

GABRIELLA:

So the defence argued that MONA's counsel had really not properly shown how the Ladies Lounge promotes equal opportunity. Greg Barns said that the evidence that had been provided to the tribunal by MONA's counsel really focused on historic discrimination. You know, it didn't show how this Ladies Lounge was actually dealing with contemporary discrimination. And interestingly, the judge picked Greg Barnes up on that and said, well, but they presented the government Status of Women Report Card. What about that, you know, don't you, you know, do you still make your point given that? And Greg Barnes said, yes, we do. And he also said, you know, you can't just use Section 26 in a, you know, open slather so that anyone who has a political or social point to make can say, well, I'm going to create a space that discriminates against these, against such and such a person, to make my political point. He said that that's not the way that Section 26 is supposed to operate.

DANIEL:

So, another thing Greg Barnes also brought up in court was the idea around fake paintings and that the Picasso's were actually in the lounge were fake. Can you tell me why he mentioned that, what his motivation was behind that?

GABRIELLA:

Yeah. The reason he mentioned that was because during the tribunal, part of Kirsha’s evidence, she talks about the Ladies Lounge being filled with expensive artworks, some of the most expensive artworks in the art collection. And she talks about that in the sense of, you know, men are not being able to see these expensive artworks so they really can understand what it's like to be excluded. Greg Barnes' point, as I understand it, is that that evidence that Kirsha provided was not valid, it was not correct because, in fact, these so-called expensive Picasso's weren't Picasso's at all. They were painted by herself.

But for Kirsha, that's part of the, that's part of the joke of this artwork. You know, she's painting the artworks of a famous misogynist, and she thinks that's the funny thing.

DANIEL:

There's also rumours in the art world as well that just like the Picasso's in the lounge itself, that the case is also fake, that it's nothing more than a publicity stunt. You've spoken to Kirsha herself. What sort of sense of how seriously she's taking this did you get from her?

GABRIELLA:

Oh she's taking it seriously. And I have spoken to, I did put that rumour question to Kirsha, and she said, no, it's absolutely for real. She too can understand why people might say that, but she said it's absolutely for real.

Outside the court this week, she talked about Jason Lau being a gift and that women should be indebted to him.

Audio Excerpt - Artist Kirsha Kaechele:

“Jason Lau is a gift from day one. I love Jason Lau. And he's a lovely man and he really believed in having the debate, the conversation. I'm indebted to him forever, I think all women are. He brought this point to the fore, and I think we should all celebrate Jason Lau.”

GABRIELLA:

But she's very serious about it, too. She will continue with this and we'll see where it goes from here.

DANIEL:

Gabriella, the Ladies Lounge is an artwork and art is often provocative. But I suppose the heart of the issue is the question, does the Ladies Lounge actually promote equal opportunity? Do you think that there is equal opportunity here, in regards to the whole experience of the Ladies Lounge?

GABRIELLA:

Well I would, I guess I would defer to Robin Banks, who's the, Tasmania's former anti-discrimination commissioner who's written a really great essay on this, and she believes that discrimination didn't take place. All I can say is, I guess my sympathies do lie with MONA, and the Ladies Lounge... Having been in there, having been inside and seeing the looks of, kind of like, surprise and excitement of the women who had this space for themselves, particularly the young woman. That's what really struck me. The young woman who just said, it's so nice having a space just to ourselves. For young women, many, many rights have already been won for women, and yet if a young woman still feels the importance of a space like that, I think it does promote equal opportunity. There are no Ladies Lounges in pubs anymore, but there's still many structural inequalities in the world. And I guess I kind of think it's interesting that a man was so upset by not being allowed into that space that he launched legal action. In a sense, that's telling too. That is very telling.

DANIEL:

Gabriella, thank you for joining us.

GABRIELLA:

Thank you.

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DANIEL:

Also in the news today...

Israel’s Defence Minister Yoav Gallant says a “new phase” of the war is beginning, after a second attack against Lebanon in two days.

Yesterday, hundreds of walkie-talkies exploded across the country killing 20 people and injuring 450, just one day after thousands of personal pagers were suddenly detonated killing 12 people, including two children, and injuring nearly 3000.

Israel has not explicitly commented on the attacks, but multiple sources indicate Israel was targeting Hezbollah fighters.

And,

Independent Senator Lidia Thorpe has successfully passed a motion in the Senate for greater transparency in the reporting of deaths in custody.

The motion calls for the Attorney-General to provide quarterly reports of the age and causes of deaths, including instances of self harm, miscarriages and stillbirths, and reporting of ongoing coronial inquests.

7am is a daily show from Schwartz Media and The Saturday Paper.

It’s produced by Cheyne Anderson, Zoltan Fecso, and Zaya Altangerel.

Our technical producer is Atticus Bastow.

We’re edited by Chris Dengate and Sarah McVeigh.

Erik Jensen is our editor-in-chief.

Our mixer is Travis Evans.

Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

7am is hosted by Ruby Jones and myself, Daniel James.

See you next week.

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