When Art and the Law Collide: The Ladies Lounge Legal Proceedings

The discrimination legal proceedings concerning the Ladies Lounge art exhibit in the Museum of Old and New Art (Mona) made law out of art. The proceedings also made art out of the law.

The legal proceedings were about more than the application of discrimination law. The proceedings became an exploration of the tension between art, the law and legal process, where every stage of the proceedings required the artwork to be interpreted, explained and, inevitably, translated into legal concepts. The key challenge for the legal team was finding a way to describe the ‘equal opportunity’ promoted by the artwork without reducing the artwork.

The Artwork
Created by artist Kirsha Kaechele in 2020, Ladies Lounge was conceived as an immersive, participatory installation. Hidden behind velvet curtains within Mona, the lounge admitted women only. Male visitors were politely refused, with that exclusion forming an essential part of the artwork.

The installation deliberately challenged contemporary debates surrounding gender, privilege and power. Almost every element of the room was designed to provoke assumptions. Objects within the space appeared authentic but were often satirical or fictional, encouraging visitors to question what they believed to be true. The work invited audiences to confront discomfort, examine their own beliefs and engage in respectful disagreement.

Importantly, the exclusion of men was central to the artistic experience. Visitors participated simply by being either admitted or refused entry, making their interaction part of the artwork itself.

The Complaint
The legal proceedings began after Jason Lau visited Mona on 1 April 2023. Having purchased admission to the museum, he attempted to enter Ladies Lounge but was refused entry because he was male. He subsequently lodged a complaint under the Anti-Discrimination Act 1998 (Tas) to be determined in the Tasmanian Civil and Administrative Tribunal.

There was never any dispute about why Mr Lau had been denied entry. The exclusion occurred because of his gender. This was precisely the type of conduct that discrimination legislation prohibits.

The case therefore turned not on whether discrimination had occurred, but whether Mona could rely upon one of the Act’s statutory exemptions.

Section 26 of the Act provides that discrimination may be lawful where it occurs in a program, plan or arrangement designed to promote equal opportunity for a group that is disadvantaged or has a special need because of a protected attribute. The provision reflects the distinction between formal equality—treating everyone the same—and substantive equality, which recognises that treating everyone the same does not always mean equality of outcome.

The question to be determined
Before the Tribunal Mona accepted that men were excluded because they were men which would otherwise be discriminatory under the Act. The proceedings were essentially confined to whether the Ladies Lounge fell within the statutory exemption contained in section 26 of the Act.

That required the Tribunal to determine whether the installation constituted a “program, plan or arrangement”, whether women were a disadvantaged group for the purposes of the legislation, and whether the artwork had been designed to promote equal opportunity for women.

The first two questions proved relatively straightforward. The Tribunal accepted that the installation fell within the ordinary meaning of a program, plan or arrangement. It also accepted, relying upon the Status of Women Report Card, which is an annual report published by the Federal Government, that women continue to experience significant societal disadvantage, including gender-based violence, workplace discrimination, sexual harassment, barriers to paid employment, the gender pay gap and underrepresentation in leadership positions.

The real contest lay in the third issue: determining the purpose of the artwork.

The Challenge of Artistic Purpose
The legal question was whether the artwork had been designed to promote equal opportunity.

Throughout her evidence, Kirsha Kaechele consistently resisted reducing the artwork to a political objective. While Ladies Lounge undoubtedly engaged with gender imbalance, she maintained that this was not how or why the work had come into existence.

Instead, she described the installation as a refuge for women – a space deliberately removed from the dominance of male-centred environments. The artwork reimagined the historical “ladies’ lounge”, once a place where women waited while men occupied public spaces, transforming it into a space that celebrated female autonomy and temporarily reversed traditional power dynamics.

Her evidence reflected an artist explaining an evolving creative process rather than an advocate attempting to satisfy a statutory test.

Kaechele also regarded the legal proceeding itself as an extension of the artwork. Rather than viewing the complaint as an attack on the installation, she embraced it as another stage in its evolution. Notably Kaechele was supported by a large team of pearl wearing “ladies in blue” whose conduct in in the hearing room pushed the line of appropriate court room behaviour by subtle, or perhaps not so subtle, performance art.

When giving evidence, Kaechele refused to reshape her artistic intentions simply to strengthen Mona’s legal position. Although characterising the Ladies Lounge as an artwork specifically intended to advance equal opportunity may have made the legal argument easier, she maintained that art does not begin with political objectives or legal purposes. Instead, artworks emerge organically, inviting audiences to grapple with ideas rather than delivering predetermined solutions.

The Tribunal also heard evidence from Mona curator Jarrod Rawlins about the origins of the installation. He described discussions during Mona’s closure in 2020 about criticism that the museum exhibited comparatively few works by female artists. Those conversations eventually evolved into the concept of Ladies Lounge, albeit through Mona’s characteristic blend of irony and satire.

However, this evidence introduced an unintended complication.

Rather than focusing on the lived experience created by the artwork, the evidence risked suggesting that the installation had been conceived to address the representation of women artists in museums. That was never the case Mona sought to advance, yet it became one of the themes identified in the Tribunal’s reasoning.

The Tribunal Decision
Although the Tribunal accepted that women experience significant societal disadvantage, it ultimately concluded that Mona had failed to establish the necessary connection between that disadvantage and the purpose of Ladies Lounge.

First, it considered that aspects of the evidence pointed towards disadvantage experienced by female artists rather than women generally. Secondly, it concluded that the artwork concerned women’s historical exclusion from physical spaces, rather than present-day inequality of opportunity. In the Tribunal’s view, there was insufficient evidence that women continued to be excluded from comparable spaces in contemporary society.

The Tribunal therefore held that the section 26 exemption did not apply.

Importantly, the decision did not reject the existence of gender inequality. On the contrary, the Tribunal expressly accepted the evidence contained in the Status of Women Report Card. It simply found that the necessary legal link between those disadvantages and the artwork itself had not been established.

Reframing the Evidence
Appeals to the Supreme Court from the Tribunal must demonstrate factual or legal error to succeed. Fresh evidence cannot ordinarily be introduced, meaning Mona’s appeal had to succeed using the evidence already before the Tribunal. The appeal therefore depended upon demonstrating that the evidence had been misunderstood or that the law had been incorrectly applied.

The challenge in the appeal was identifying the equal opportunity that the artwork was promoting. The legal team needed to reframe the description of the artwork -instead of a focus on the space provided – to the experience that the artwork provided.

The artwork promoted equal opportunity because it exposed participants to the reality of exclusion and privilege, challenged entrenched assumptions about gender, and invited reflection upon the continuing effects of inequality. Its value lay not in the room behind the curtain, but in the challenging of perspective.

The case put at appeal contained comparatively little legal analysis. The challenge was not identifying the applicable legal principles but persuading the Court to view the artwork through the correct lens.

The appeal emphasised the uncontested evidence that women continue to experience systemic disadvantage in virtually all aspects of their personal and professional life. The question then became a simple one: if contemporary gender inequality is sustained by deeply embedded attitudes and assumptions, how are those attitudes to be challenged?

The answer advanced before the Court was that art can perform precisely that function.

Unlike conventional affirmative action measures, which address tangible problems through tangible solutions, Ladies Lounge addressed something less visible – the attitudes and biases that continue to shape opportunities available to women. The artwork was referred to as a ‘flipped universe’, where the privileged experience exclusion and the excluded experience privilege, prompting participants to think about their experience ‘in the real world’.

The Supreme Court’s Decision
The Supreme Court accepted that analysis.

In allowing the appeal, the Court recognised that the evidence established ongoing and significant disadvantage experienced by women across many aspects of Australian society. It rejected the Tribunal’s characterisation of the case as being about access to physical spaces or the representation of female artists. Instead, it accepted that Ladies Lounge was directed towards exposing broader societal inequality while temporarily reversing the prevailing power imbalance between men and women.

Most significantly, the Court recognised that the artwork did more than simply exclude men. By inviting participants to experience exclusion and reflect upon the structures that have historically disadvantaged women, it was capable of promoting equal opportunity within the meaning of section 26.

For Mona, the appeal represented a legal victory.

For the artist, however, the litigation had become something much larger than the outcome itself.

Beyond the Courtroom
The judgment generated international media attention, extending the life of the Ladies Lounge well beyond the walls of the museum and the courtroom.

For Kaechele, the litigation, media coverage and public debate all became part of the artwork itself.

Kaechele’s brief post-judgment comment, “The verdict demonstrates what we already knew: women are better than men”, circulated globally across traditional and social media. The statement was intentionally provocative, not as a legal proposition but as another artistic intervention inviting discussion about power, inequality and the way messages travel through modern media.

The reaction to this case demonstrated that the artwork had achieved something beyond any legal outcome. For many women, the decision represented a symbolic affirmation by way of a court highlighting the invisible gender bias that continues to cause inequality for women despite the existence of ‘equality at law’.

The Impact of the Decision
From a legal perspective, the decision is unlikely to transform anti-discrimination jurisprudence. The Court reaffirmed existing principles concerning the broad interpretation of beneficial exemptions and confirmed that arrangements designed to promote equal opportunity need not guarantee measurable outcomes before the exemption can apply.

The case illustrates the challenges that arise when legal concepts are applied to contemporary art. Courts seek certainty, definitions and clearly identifiable purposes. Art frequently resists each of those things. Lawyers therefore face the difficult task of translating artistic ideas into legal language without stripping them of their essential character.

For those involved in the litigation, the case became far more than an anti-discrimination dispute. It demonstrated that legal proceedings can themselves become part of an artwork; that courtroom advocacy may require an appreciation of creativity as much as legal principle; and that law and art, although operating according to very different rules, share a common concern with questioning assumptions and examining society.

Ultimately, the collision between art and law produced something neither discipline could have achieved alone: a judicial recognition that promoting equality is not confined to changing rules or opening doors. Sometimes, it begins by changing perspective.

This paper comes from the CPD delivered by Catherine Scott and Kirsha Kaechele – When Art and the Law Collide: Anti-Discrimination Act 1998

Catherine Scott
Barrister, Derwent & Tamar Chambers

29 July 2026