Commission Submission - Ferneley v Boxing Authority NSW

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY                                      

No. 1261 of  2001

BETWEEN:

HOLLY LOUISE FERNELEY
Applicant

AND:

THE BOXING AUTHORITY OF NEW SOUTH WALES
Respondent

AND:

STATE OF NEW SOUTH WALES
Second Respondent

SUBMISSIONS OF THE SEX DISCRIMINATION COMMISSIONER

Scope of this submission

1. On 26 October 2001 the Sex Discrimination Commissioner (“the SD Commissioner”) was granted leave to appear as amicus curiae in these proceedings, pursuant to s 46PV(2) of Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). As foreshadowed in the SD Commissioner’s application for leave, the submission will be in written form to be supplemented by oral submissions only if requested by the Court.
2. This submission will be limited to a consideration of s 42 of the Sex Discrimination Act 1984 (Cth) (“the SDA”). No submission will be made in relation to the factual issues in the present proceedings.

Summary of the SD Commissioner’s position

3. Section 42 of the SDA provides:
   

   (1) Nothing in Division 1 or 2 renders it unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

   (2) Subsection (1) does not apply in relation to the exclusion of persons from participation in:

   1. (a) the coaching of persons engaged in any sporting activity;
   2. (b) the umpiring or refereeing of any sporting activity;
   3. (c) the administration of any sporting activity;
   4. (d) any prescribed sporting activity; or
   5. (e) sporting activities by children who have not yet attained the age of 12 years.

4. The SD Commissioner’s position is that the correct interpretation of s 42(1) of the SDA is that the exemption applies only to competitive sporting activity as between different sexes, and that it does not apply to competitive sporting activity between persons of the same sex. This logically follows from the available material in relation to this and similar exemptions referred to below, and avoids an interpretation of s 42 which is at odds with the objects and purposes of the SDA.

Approaches to the interpretation of s 42

5. Unlike its United Kingdom counterpart1s 42(1) of the SDA does not include any express reference to the comparative strength, stamina and physique of a person of one sex as against a person of the other sex. On its face, the wording of s 42 could allow for the exclusion of persons of “one sex” from any competitive sporting activity where strength, stamina and physique are relevant. This would give rise to the prospect that women might lawfully be excluded from a wide range of sports, regardless of whether the sport is single sex or mixed sex. Strength, stamina and physique are important characteristics for almost all sports.
6. The common law “literal” approach to the interpretation of legislation2 has been modified by a more “purposive” approach3, enshrined in s 15AA of the Acts Interpretation Act 1901 (Cth), which provides:
   

   In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

7. Section 15AA of the Acts Interpretation Act is to be applied as a guide to the construction of an Act irrespective of whether there is an ambiguity or inconsistency in the Act.4
8. It has been recognised by the High Court that, in construing legislation designed to protect human rights, the courts have a special responsibility to take account of and give effect to the purposes and objects of the legislation.5 In accordance with this principle, exemptions and other provisions which restrict rights should be construed narrowly.6 There is also a presumption that Parliament intends to legislate in accordance with its international human rights obligations.7
9. The Objects of the SDA are set out in s 3:
   

   (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and

   (b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

   (ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and

   (c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and

   (d) to promote recognition and acceptance within the community of the principle of the equality of men and women.

10. It is of course appropriate to consider the consequences of giving a particular interpretation to an Act.8
11. In the present instance, a literal interpretation of s 42 of the SDA could lead to the exclusion of women, but not men, from certain sports. This would clearly be inconsistent with s 3(b) of the SDA, for example, in the areas of work and the provision of goods, services and facilities.
12. In addition, section 3(a) provides that one of the objects of the SDA is to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)9. CEDAW is the principal international convention dealing with the human rights of women. As Professor Cook says, CEDAW provides language to express those specific and binding entitlements to respect for individual dignity that constitutes the human rights of women.10
13. The following provisions of CEDAW impose upon Australia legal obligations which are relevant to the operation of the SDA as a whole and in relation to which a literal reading of s 42 of the SDA would be inconsistent:
    • elimination of discrimination on the basis of sex: Articles 1 and 2
    • elimination of prejudices which are based on the idea of the inferiority or the superiority of either sex or on stereotyped roles for men and women: Article 5(a)
    • equal participation in sports in the field of education: Article 10(g)
    • right to participate in recreational activities, sports and all aspects of cultural life: Article 13(c)
    • States Parties are to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the Convention: Article 24.

The use of extrinsic materials in interpreting s 42

14. Section 15AB(1) of the Acts Interpretation Act allows for the consideration of material not forming part of an Act, either (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, taking into account its context and the purpose or object of the Act; or (b) where the provision is ambiguous or obscure or the ordinary meaning may lead to a result that is manifestly absurd or unreasonable. The type of extrinsic material which may be considered is set out in a non-exhaustive list in s 15AB(2)(a)-(h).
15. In the present case, the relevant extrinsic material is either silent on the question at issue, or it suggests an interpretation of s 42 in a way which is consistent with that suggested by the SD Commissioner.

Drafting history of s 42:

16. Clause 35(1) of the 1983 draft of the Sex Discrimination Bill provided that persons of either sex could be excluded from any sporting activity. However in a Ministerial Statement on 11 October 1983 it was announced that the Government would move an amendment (proposed by the Australian Democrats) to limit clause 35(1) “by providing that persons of either sex can be excluded from any competitive sporting activity where the strength, stamina or physique of competitors is relevant”.11
17. The provision was subsequently amended to accommodate the limitation and to include additional acts to which the exemption did not apply, such as coaching, umpiring and administration.
18. In the Committee stage in the Senate, Senator Haines (Democrats) moved an amendment to limit the exemption in relation to participation in sporting activities by children who are less than twelve years. It is apparent from her comments that Senator Haines considered that the exemption, as then formulated, applied to sports where both sexes are competing together, and that such an exemption would not be appropriate in the case of children under twelve:
    

    It seems to me that this is very important since it is fairly well known that attitudes to role stereotypes are developed frequently at the primary school level and that at the same time it is at that very stage that girls are likely to be stronger, faster, smarter, and so on, than boys and that if they are entitled to engaged in sporting competition it will make it even easier to dispel the myths that surround women at post-puberty levels that they cannot engage in competitive sport against men.12

    …in this area, people…tend to attempt to preclude mixed sporting activities of children under the age of 12 by perpetrating an assortment of myths relating to the comparative strength, stamina and physique of boys and girls under the age of 12. I suggest that it is this very age that girls not only are generally the equal of boys in height, strength, running ability and so on but are also frequently their superiors. If we are at any stage to overcome the myth that girls’ hips stop them from running fast, that their elbow joints stop them from throwing properly, or whatever the various arguments are for excluding women from competing against and with men, we will have to do it when it is quite clearly shown that there is considerable equality between the sexes.

    I therefore argue that the addition of the words ‘or (e) sporting activities by children who have not yet attained the age of 12 years’ to clause 41(2) is not in any way superfluous. This is an age at which attitudes are formed, at which the competition may be genuine and at which it can be easily demonstrated that the differences between males and females in sporting activities are less equal due to unequal stamina and strength than to lack of competition or to some sort of spread mythology.13

19. The debate surrounding the amendment to the provision, therefore, strongly suggests that the exemption was intended to apply to sports involving competition between persons of both sexes.
20. Section 42 was also referred to in the Federal Parliament during debate in relation to the Sex Discrimination (Consequential Amendments) Bill 1986, where a proposed amendment to remove s42(2)(d) was ultimately defeated. In the Committee stage, Senator Walters made the following observation on the operation of s 42:
    

    Section 42 of the Sex Discrimination Act allows the exclusion of persons of one sex participating in any competitive sporting activity in which the strength, stamina or physique of the competitor is relevant. It points out that men and women do not have to compete against each other.14

Explanatory Memorandum:

21. The Explanatory Memorandum to the SDA provides little in the way of assistance in interpreting s 42:
    

    Clause 42 – Sport

    This clause provides an exemption from Divisions 1 and 2 of this Part in relation to participation in sporting activities where strength, stamina or physique are relevant but not to coaching, umpiring, refereeing, administration to any prescribed sporting activity or sporting activities by children under 12 years.

Relevant reports:

22. In at least two reports which would be relevant for the purposes of s 15AB(2) of the Acts Interpretation Act, the exemption has been construed in a way that is consistent with the SD Commissioner’s position.
23. The report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal15described the purpose of s 42 as follows:
    

    The original purpose of the exemption was not to deny sportswomen the opportunity to compete, but to ensure that women were not disadvantaged in competitions which rely on strength, stamina or physique. At the time the legislation was enacted it was felt that if mixed-sexed competitions were to become widespread and replace separate sex competitions women may win fewer contests and receive less recognition.16

24. In reviewing the arguably broader provision in s 38 of the Anti-Discrimination Act 1977 (NSW)17, the NSW Law Reform Commission in 1999 considered that:
    

    The purpose of the exception is not to exclude persons from competing in sporting activities because of their sex, but to ensure fair competition between persons who have different levels of strength, stamina or physique on account of their sex, although the provision is not currently so limited.18

25. That Commission proposed that an exception for sport be retained; however, it recommended that the exception should reflect the “more limited exception” relating to the criteria of strength, stamina and physique of competitors contained in the SDA.19

Case law in other jurisdictions:

26. There have been several cases in other jurisdictions, both in Australia and overseas, which have considered analogous provisions to the s 42 exemption.
27. Factually, there appear to be two possible scenarios where the exemption might be raised:

(a) The first scenario involves a situation where players of one sex seek to compete against players of the other sex. Where the evidence is that strength, stamina and physique are relevant to the sport, the exemption will operate and the act of discrimination will not be unlawful.20 Where, however the evidence is that strength, stamina and physique are not relevant to the sport, the terms of the exemption will not be made out.21

(b) The second scenario involves a situation where players of one sex seek to compete against players of the same sex. In these cases, the exemption was never intended to apply.22

28. An early Australian case on sporting exemptions is the decision of the South Australian Sex Discrimination Board, In the matter of the application by the Trotting Control Board under Section 37 of the Sex Discrimination Act 1975 (unreported, Sex Discrimination Board No. 1 of 1978). In that case, the applicant had sought an exemption entitling it to refuse to grant a licence to women drivers. The Board refused the application, noting that:
    

    One of the objects of the Sex Discrimination Act 1975 is to promote equality of opportunity between men and women. Today women are entering professions and fields of activity which would have been regarded by our parents as open only to men. The Board is of the opinion that women should be given the same opportunity as men to qualify as drivers.

29. In Commissioner for Equal Opportunity v Parsons & Ors (1990) EOC 92-278, the Supreme Court of South Australia considered the exemption provision under s 48 of the Equal Opportunity Act 1984 (SA)23, which by then had succeeded Sex Discrimination Act 1975 (SA). This case involved an appeal from a determination of the Equal Opportunity Tribunal which granted the South Australian Tennis Association an exemption allowing it to conduct single sex tennis tournaments. Jacobs J found that the Tribunal had misconstrued the exemption, noting:
    

    Section 48 undoubtedly permits a single sex competitive sporting activity of a kind which the Association wishes to undertake, but that activity must still in other respects comply with the provisions of the Act unless some specific exemption from those provisions is sought and granted.24

30. The leading recent Australian case on the analogous provision to the s 42 exemption is the decision of the Victorian Anti-Discrimination Tribunal in the matter of Robertson v Australian Ice Hockey Federation25. The applicant, a fifteen year old girl, sought to play goalie in a mixed male/female ice hockey competition. The respondent had refused permission for her to play on the grounds that comparative strength, stamina and physique were relevant to the game of ice hockey, and she would be seriously at risk if she played in the mixed competition. The respondent sought to strike out the complaint as misconceived, relying on the exemption in s 66(1) of the Equal Opportunity Act 1995 (Vic).26 The Tribunal allowed the application, but not in relation to the position of goalie, as the Tribunal considered on the basis of evidence before it that relative strength, stamina and physique were irrelevant to play for the position of goalie.
31. In considering the scope of the s 66 exemption, the Tribunal found:
    

    One interpretation of the subsection would be that it permits women to be excluded from a sporting activity which requires strength and stamina or particular physical powers from those who undertake it. On this basis, it would permit the exclusion of women from sports such as horse racing, because that is a sport which requires (at the very least) some strength and stamina from the riders. However, to accept this interpretation would be to ignore the rest of the sub-section. The sub-section must be read as a whole. It permits the exclusion of one sex from a sporting activity where strength, stamina or physique is relevant. In my view, this means that the sub-section only permits the exclusion of one sex from a competitive sporting activity where the relative strength, stamina or physique of each sex is relevant. In other words, the sub-section is directed to competitive sporting activities where, if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina and physique of men and women competitors. This interpretation is consistent with the objectives of the Act which include the elimination (as far as possible) of discrimination and the promotion of acceptance and recognition of everyone’s right to equality of opportunity (s3). Exceptions to the prohibition should be construed strictly and in the light of the objectives of the Act. It would not be consistent with the Act to construe one of these exception provisions to authorise discrimination against one sex or the other in competitive sport, where there is no disparity between the requisite strength, stamina or physique of men and women that would prevent them competing together in the sporting activity.

32. Robertson has been applied in subsequent Tribunal decisions in Victoria. In Re Somers v Mountain District Netball Association27, the complainants, both twelve year old boys, had been refused permission to play in an under 13 girls only netball competition. The respondent, relying on s 66(1), defended the complaint on the basis that strength, stamina and physique were relevant to the under 13 competition. The Tribunal accepted the respondent’s evidence and dismissed the complaint, approving Robertson and noting that a competition between both sexes at around age 12 would be uneven “because of a disparity between the strength of boys and girls in some fundamental way.” Similarly, in South v Royal Victorian Bowls Association28, the Royal Victorian Bowls Association (“RVBA”) had refused to register the complainant as an affiliated member or permit her to be selected to play in its competition because she was not a male member of an affiliated club. On the evidence in that case, the Tribunal was not satisfied that strength, stamina and physique were relevant to the sport of lawn bowls, and the complaint was found proven. In commenting on the s 66(1) exemption, the Tribunal observed:
    

    I do not accept that all that is required for s 66(1) to be invoked, is that strength, stamina or physique is involved in the playing of the activity. That interpretation would strip the section of any meaning. Strength, stamina or physique must be relevant to something more than the activity itself. The RVBA submitted that it means it must have a bearing on the outcome of the game. That interpretation implies that it must be relevant to the result. The section however, refers to participation in a competitive sporting activity consistent with Ms Hampel's observations that the section is directed to participation in a competitive sporting activity and not to winning or who is the strongest. I agree with the approach in Robertson's case; and that s.66(1) applies where if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors. That interpretation is consistent with the objectives of the Act to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.29

33. Robertson was also followed by the Equal Opportunity Tribunal of Western Australia in Jernakoff v WA Softball Association (Inc). In that case, the complainant, a fourteen year old girl, had sought to play in a softball team in a men’s competition. The respondent had refused to let her play, relying on the s 35(1) of the Equal Opportunity Act 1984 (WA).31 The Tribunal accepted expert evidence that strength, stamina and physique were relevant to the activity and, adopting the observations in Robertson32, dismissed the complaint. 
34. The most relevant overseas decision in relation to an exemption similar to s 42 of the SDA is the decision of the UK Industrial Tribunal in Couch v British Boxing Board of Control Ltd33. Those proceedings involved a complaint by a 29 year old female welterweight boxer who had been refused a licence to participate in professional bouts. The respondent submitted, inter alia, that it was entitled to an exemption by virtue of s 44 of the Sex Discrimination Act 1975 (UK).34 In rejecting the respondent’s argument on this point, the Tribunal observed:
    

    As to section 44 of the Sex Discrimination Act 1975 the Tribunal finds that the Respondent cannot claim any protection from this section. Section 44 is an exemption which excludes discrimination from being unlawful only in circumstances in which women are seeking to compete against men in the same event. It is clear in this case that the Applicant was seeking a licence to permit her to fight against other women.35

35. The effect of s 44 of the UK Act as illustrated by Couch may be contrasted with the decision of the UK Court of Appeal in Bennett v FA Ltd36. In that case a twelve year old girl lodged a complaint under the Sex Discrimination Act because she wanted to play in mixed teams or teams which would be playing against boys. The Court rejected her appeal, finding that the respondent was exempted from the statute.
36. There have been two Canadian decisions which have touched on issues relating to the exemption in s 42 of the SDA. The decision of the Ontario Court of Appeal in Blainey v Ontario Hockey Association37involved a twelve year old girl who was refused permission to play ice hockey after she was selected as a player on a competitive basis because she was a girl, and the respondent’s rules required that all members be male.  A complaint alleging sex discrimination was refused by the Ontario Human Rights Commission on the grounds that s 19(2) of the Ontario Human Rights Code exempted the matter of sex discrimination in sports.   The Ontario Court of Appeal found that the exemption was clearly discriminatory, and inconsistent with s 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees equal protection and equal benefit of the law.  The Court considered s 1 of the Canadian Constitution, which provides that there can be limits on rights if they are ‘reasonable and demonstrably justifiable’, did not apply to s 19(2). It accepted that “distinctions which have a different impact on participants by reason of their sex may be reasonable, if there is a valid purpose for such a distinction,”noting that such a distinction can be found in s 44 of the Sex Discrimination Act 1975 (UK).  Accordingly the Court found that the complainant could file a complaint of sex discrimination with the Commission.
37. In a similar decision in Casselman v Ontario Soccer Association38, an Ontario Board of Inquiry found that “since the Blainey case, the law has been clear that the right to equal treatment under the Human Rights Code means that in sports, girls and women have access to the team of their choice, provided they can make the grade athletically. The OSA officials ought to have known that they had a legal duty to let these girls play.”

Conclusion

38. It is apparent from a consideration of the objects and purposes of the SDA, the drafting history of s 42 and its subsequent interpretation by specialist bodies and courts and tribunals, that the exemption in s 42 has always been intended to apply only to competitive sporting activities as between different sexes.
39. Sport is an important social and cultural institution in Australia. This is the first time that s 42 has been considered by this Court. The Court is urged to adopt the interpretation suggested by the SD Commissioner.

2 November, 2001

Nicholas Poynder
Frederick Jordan Chambers
Counsel for the Sex Discrimination Commissioner