When Spaniard Blanca Hervas received confirmation of her dinner reservation at a trendy Melbourne restaurant for her birthday, she didn't expect what happened next.
Minutes after making the reservation, she received an email from the restaurant containing a promotional coupon offering her a free dinner up to a certain value.
At first, she thought she had struck a great deal, but then she was taken aback when reading the fine print at the bottom of the coupon, which stated, “Not valid for non-residents or people living outside Melbourne”.
Highlights:
- A Melbourne restaurant refused a Spanish woman use of a free dinner coupon because she is not a permanent resident.
- The business says it has the authority to establish the conditions it wants without giving explanations and accuses the client of wrongly accusing it of "racism”.
- A person’s visa status is not an attribute protected by Australian law, like age, sex, or disability.
The coupon's terms and conditions state that anyone who is not an Australian or a permanent resident of Australia will not be able to redeem the promotion, which would exclude about a quarter of the population of Metropolitan Melbourne.
According to data from the 2016 census, 23.8 per cent of people living in the metropolitan area were residents on temporary visas.
Outraged by the exclusion, Hervas and her partner wrote to the restaurant requesting an explanation for the terms which they believe "bordered on racism”. They are temporary visa holders who are eligible to reside in Australia for four years.
The restaurant's explanation was that the terms were part of a strategy to encourage local customers to dine at the establishment and that non-residents could "leave the next day and never come back”.
Source: Blanca Hervas
Given the suggestion that the terms of the promotion were discriminatory, the restaurant replied: "Firstly this is a free offer and as a business we can put whatever conditions on it we like without needing to explain any of them."
The response continued: “Lately everyone uses the racism card. It's easy to do, instead of thinking a bit. I invite you to do so before accusing others."
Hervas says she was “outraged” by the lack of empathy in the restaurant’s response.
A response from the restaurant. Source: Supplied
She believes some Australians do not understand what discrimination feels like because they seldom experience it in their own country.
“It's not 'big discrimination', but it's one of those little things that you come across every day that ultimately make you feel like you're not well received in Australia,” she explains.
She decided to take her grievance to Consumer Affairs Victoria but gave up when she became aware of the complexity of the complaint process, as well as the time and money she would have to spend in a formal lawsuit process in court.
She instead decided to denounce the treatment on social media and the response was practically unanimous in support of the young woman.
Many grey areas
According to the Victoria Equal Opportunity and Human Rights Commission, it is difficult to definitively determine whether there was discrimination from a legal standpoint in this case, as that can only be determined in court.
However, a commission spokesperson explained to SBS Spanish that it was a complex situation.
While Victoria's Equal Opportunity Act makes it illegal to discriminate against someone because of a protected attribute, such as age, sex, or disability, in this case, visa status is not one of those attributes directly stipulated by law.
"Under Victoria's Equal Opportunity Act, it's against the law to discriminate against someone because of a protected attribute, such as age, gender or disability. Visa status is not one of the protected attributes under the Act; but it may be captured by the protected attribute race, which includes nationality," the spokesperson said.
"In this case, it would be difficult to argue that the terms and conditions are direct discrimination. The complainant might be able to argue that is indirect discrimination – to make this argument, it isn’t enough for her to prove she would be disadvantaged; she would have to prove that people with her racial background would be disadvantaged. One of the challenges in making this argument successfully is that race isn’t neatly aligned with visa status."
However, the spokesperson said the court examining a case with these characteristics would also assess whether the terms and conditions imposed by the owner are fair or reasonable.
The spokesperson added that the Equal Opportunity law gives specific responsibilities and duties to employers, providers of goods and services, restaurants, clubs, and sports organisations to eliminate discrimination and victimisation to the biggest extent possible.
"This means even private organisations need to take proactive steps to stop discrimination from occurring," the spokesperson said.
For its part, the Victorian Consumer Rights Ombudsman reiterated that only a court can determine whether the promotion was unfair or illegal.
However, a spokesperson added that, in some cases, a coupon could be considered a contract, so its terms could be assessed under the Australian Consumer Law, which protects consumers against unfair contractual terms that could cause harm to the consumer.
The restaurant responds
SBS Spanish contacted the restaurant owner to ask how he assessed the fact that almost a quarter of Melbourne's population would be excluded from the promotion.
He defended his position, claiming that the offer "is not discriminatory", but simply targets the type of clientele they want to invest in as potential clients.
“We have created a free birthday voucher as an introductory offer to our restaurant. It is designed to provide an introduction to our restaurant and our food at no cost to the customer. In return, we hope to retain the customer for many years, as our food is exceptional and unique.
“[This offer] is not available to anyone outside of Melbourne and is not available to non-permanent residents as we want to limit our investment in the free birthday offer to people who may become long-term customers.
"Non-Melbourne residents will not become long-term customers and neither will temporary residents."
Read this story in Spanish .
The restaurant's response. Source: SBS Spanish
