EQUAL OPPORTUNITY (SPORTING COMPETITIONS) AMENDMENT BILL

Standing Orders Suspension

The Hon. M.F. O'BRIEN (Napier—Minister for Finance, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:31): I move:

That standing and sessional orders be and remain so far suspended so as to enable that Private Members' Business/Bills/Notice of Motion No. 1, set down for Thursday 25 July, to be taken into consideration forthwith and for the bill to pass through all stages without delay.

The DEPUTY SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Introduction and First Reading

Mrs VLAHOS (Taylor) (18:33): Obtained leave and introduced a bill for an act to amend the Equal Opportunity Act 1984. Read a first time.

Second Reading

Mrs VLAHOS (Taylor) (18:34): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Equal Opportunity (Sporting Competition) Amendment Bill 2013 amends the Equal Opportunity Act 1984 to address a concern with the provisions that prohibit discrimination on the grounds of sex, chosen gender or sexuality by associations, or in the provision of certain services, in Part 3 of the Act as the relevant provisions relate to competitive sporting competitions.

These concerns, which, I understand, members of this place are familiar with, have been raised by Bowls SA Incorporated, the organising body for the game of lawn bowls in South Australia.

Lawn bowls is one of the most popular sports in Australia. Bowls SA has 224 clubs in the metropolitan and country areas and over 18,000 registered members. In addition, Bowls SA estimates that more than 10,000 people participate in social bowls every year through its 'Night Owls' programs. Lawn bowls is played at the local, national and international level. It is approved as a 'core sport' by the Commonwealth Games Federation and has been included in the program for every British Empire or Commonwealth Games since 1930 (other than 1966).

Bowls SA is an 'association'' within the meaning of the Equal Opportunity Act 1984. As such, it is subject to the provisions of that legislation insofar as it prohibits unlawful discrimination by associations. In providing recreational services, it is also subject to the provision that prohibits unlawful discrimination in the provision of goods and services to which the Act applies.

I should make clear at this point that, subject to the concerns this bill will address, application of the Equal Opportunity Act to Bowls SA is entirely appropriate. Indeed, Bowls SA accepts that this is the case.

The Act provides, in sections 35(1)(b) and 39(1)(b) (both of which are in Part 3 of the Act) that:

in the case of section 35(1)(b), it is unlawful for an association to discriminate against a member of the association on the ground of sex, chosen gender or sexuality by refusing or failing to provide a particular service or benefit to that member, in the terms on which a particular service or benefit is provided to that member, or by expelling that member from the association or subjecting him or her to any other detriment; and

in the case of section 39(1)(b), it is unlawful for a person who offers or provides services to which the Act applies, (whether for payment or not) to discriminate against another on the ground of sex, chosen gender or sexuality by refusing or failing to supply the goods or perform the services or in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.

Section 3 of the Act defines services to which this Act applies to include the provision of a scholarship, prize or award, entertainment, recreation or refreshment and the provision of coaching or umpiring in a sport.

Bowls SA, like all lawn peak bowling associations throughout Australia, has traditionally organised its competitions along single gender lines, that is, men and women play in separate competitions. In this regard, lawn bowls is no different to many, if not the majority, of sports played in this country.

Sporting competitions are subject to a limited exemption from the provisions of Part 3. Section 48 of the Act provides that the provisions of Part 3 do not render unlawful the exclusion of persons of the one sex from participation in a competitive sporting activity in which the strength, stamina or physique of the competitor is relevant.

The problem that has arisen in the case of Bowls SA is the qualification that applies to the competitive sporting activity exemption: that, in order for the exemption to apply the particular competitive sporting activity must be one in which the strength, stamina or physique of the competitor is relevant.

Section 66 of the Equal Opportunity Act 1995 of Victoria has a provision very similar to section 48. This provision, and its application to the sport of lawn bowls, has been the subject of a decision of the Victorian Civil and Administrative Tribunal (VCAT). In South v Royal Victorian Bowls Association Inc [2001] VCAT 207, a female lawn bowls player claimed unlawful discrimination as a result of the Royal Victorian Bowls Association's decision to deny her affiliate membership on the basis of her sex. RVBA sought to rely upon the exemption in section 66, arguing that there were differences in the way men and women played the sport, based on the superior strength of men. The VCAT held, having heard evidence from a number of experts in anatomy, bio-mechanics and human movement and a number of experienced players that it was not satisfied that the exception in section 66 applied.

A decision of the VCAT is not binding on the South Australian Equal Opportunity Tribunal, and the application of section 48 of the Equal Opportunity Act to lawn bowls has not been tested before the South Australian Equal Opportunity Tribunal. Bowls SA does not concede that section 48 does not apply.

In 2007 a complaint was made to the Commissioner for Equal Opportunity about single gender lawn bowl competitions. The complaint did not proceed to a hearing and determination. The parties, instead, negotiated a settlement, part of which was that Bowls SA would establish a committee to examine the issue of mixed gender competitions. This committee produced a policy entitled 'Parameters for the Implementation and Operation of Open Gender Competition Policy', which was adopted by Bowls SA in 2008. The Policy has been in place since the 2008-09 season. Without going into any great detail, the Policy ensures that every member of Bowls SA has the opportunity to play in an open competition, with selection based on merit rather than gender.

The implementation of the Policy has been accompanied by a campaign aimed at educating Bowls SA members as to need for, and merit of, open gender competitions and the promotion of the alignment of men's and women's sections of Members Clubs within the same association and the promotion of the amalgamation of men's and women's Associations.

In October 2009 Bowls SA applied to the Equal Opportunity Tribunal for an exemption from sections 35 and 39 of the Equal Opportunity Act to allow it to continue to run single-sex competitions (albeit alongside mixed gender competitions). In February 2010 the Tribunal granted the application and exempted Bowls SA until 30 June 2012 (sufficient to cover the 2010-11 and 2011-12 lawn bowls seasons). In granting the exemption the Tribunal made clear it was doing so to provide Bowls SA with time to give further consideration to the issue of discrimination, to consider other ways, apart from the Policy, in which the objects of the Equal Opportunity Act could be met and its provisions complied with, and, if necessary, to seek legislative change to clarify Parliament's intention with respect to lawn bowls.

In mid 2012 Bowls SA applied to the Tribunal for a three year extension of the exemption. While the Tribunal granted an extension, it did so only until 30 June 2014. The Tribunal has indicated that a further extension beyond this date is unlikely.

The imminent end of the exemption creates uncertainty for Bowls SA. The Policy to which I alluded earlier, developed and implemented following the 2007 complaint, makes provision for open gender competitions. Bowls SA advises that it has taken steps to educate its members in relation to the necessity for open gender competitions and has, in accordance with the Tribunal's original order, examined other alternatives for the provision of single gender competitions. However, Bowls SA must continue to offer single gender competitions to those bowlers wishing to advance to elite-level competitions as the competition pathways to participation in international events is by way of single gender competition.

To enable it to continue to offer a mix of open gender and single sex competitions free of the risk that it is in technical breach of the Equal Opportunity Act, Bowls SA has asked that the Act be amended to allow both open gender and single sex competitions to continue. The alternative is for Bowls SA to continue operating under the Policy until someone complains that it is in breach of the Act, and to seek a judicial determination from the Equal Opportunity Tribunal as to whether Section 48 of the Equal Opportunity Act applies to the lawn bowls.

Notwithstanding the uncertainty as to whether Bowls SA's Policy, insofar as it provides for single sex competitions, is in breach of sections 35 and 39 of the Act, Bowls SA does not wish to wait for a complaint to be made and litigated in order to resolve the issue.

I do not believe this to be an unreasonable position to take.

The Equal Opportunity (Sporting Competition) Amendment Bill 2013 amends the Equal Opportunity Act to broaden the exclusion in section 48.

Currently section 48 (which provides an exclusion where the sporting activity is one in which the strength, stamina or physique of the competitor is relevant) applies only to discrimination on the ground of sex.

The Bill also includes two new exclusions. These are based on amendments to the Victorian Equal Opportunity Act aimed at addressing the problem now confronting Bowls SA in that State.

Firstly, Part 3 of the Act will no longer render unlawful the exclusion of persons from participating in a competitive sporting event on the ground of sex if the exclusion is genuinely intended to facilitate or increase the participation of persons, or a class of persons, of a particular sex. This is subject to two qualifications: it must be unlikely that there will be participation, or an increase in participation, of persons of the particular sex if the exclusion is not made (having regard to all of the circumstances of the person or class of persons); and there are reasonable opportunities for excluded persons to participate in the sporting activity in another competition.

Secondly, Part 3 of the Act will no longer render unlawful the exclusion of persons from participating in a competitive sporting event on the ground of sex if the exclusion is reasonably required to enable participants to progress to elite level (national and international) competitions. This will enable a sporting association to conduct single sex competitions where qualification to an elite level of the sport must occur through single sex qualification tournaments, as is the case with lawn bowls.

To address concern that the exclusions could be used by sporting associations to run segregated sporting competitions for young children, or to exclude children of one sex from participation in a particular sport, an additional amendment ensures that the exclusions do not apply to competitive sporting activities for children aged under 12. This is consistent with the position in a number of other jurisdictions.

I believe the amendments in this bill represent a balanced solution to the situation now confronting Bowls SA and other South Australian sporting organisations wrestling with the same complex issue.

I commend this bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This Act may be cited as the Equal Opportunity (Sporting Competitions) Amendment Act 2013.

2—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Equal Opportunity Act 1984

3—Substitution of section 48

Section 48—delete section 48 and substitute:

48—Sport

This Part does not render unlawful the exclusion of persons from participation in a competitive sporting activity on the ground of sex in the following circumstances:

(a) if the sporting activity is one in which the strength, stamina or physique of the competitor is relevant to the outcome of the competition;

(b) if the exclusion is genuinely intended to facilitate or increase the participation of persons, or a class of persons, of a particular sex in the sporting activity and—

(i) it is unlikely that the those persons will participate, or that there will be an increase in participation by those persons, in the sporting activity if the exclusion is not made (having regard to all of the circumstances of the persons or class of persons); and

(ii) there are reasonable opportunities for excluded persons to participate in the sporting activity in another competition;

(c) if—

(i) the exclusion is reasonably required to enable participants in the sporting activity to advance to competitions at a level higher than that in which the exclusion is to occur (being a requirement that is due to the structure of, or restrictions in, the higher level competitions); and

(ii) there are reasonable opportunities for excluded persons to participate in the sporting activity in another competition;

(d) in such other circumstances as may be prescribed by the regulations.

Mr PENGILLY (Finniss) (18:34): I am absolutely delighted to speak in favour of this piece of legislation. It is an effort to fix something that, through no fault of anybody in this place, as this bill was put into place some 20 years ago. I was approached by some bowlers in my electorate some months ago who raised concerns over the fact that there had been a couple of female bowlers appeal to the Equal Opportunities Tribunal a couple of years ago in relation to their ability to play in a men's side.

Quite happily, in a lot of country South Australia particularly, and also in metropolitan areas, there are clubs without the numbers and the women will play in the men's side, and they have their men's bowls, women's bowls and open bowls. This is an attempt to just make this situation bearable for the bowls community—not for me; I don't play bowls. There are some 17,000 bowlers in South Australia, and tens of thousands around the nation, but I am particularly talking about the state.

Last month, I tabled a petition from over 5,000 bowlers calling for action on this. I commend the member for Taylor on working with me, and we introduce this legislation hoping for a quick passage through the house. It will settle the bowls community down. I am not going to get into the subject of afternoon tea at bowls—that is for them to sort out, quite frankly—but this issue is important. It is important for people around the state. I do not think I need to dwell on it; it is quite clear in the bill what we need to do. So, with those few words, I hope everyone supports the bill and we move forward.

Mr PEGLER (Mount Gambier) (18:36): I indicate that there have been quite a few bowlers in my electorate that have approached me about this matter, and I am pleased to see that this bill has come before us. It was an absolute nonsense that people had to play in mixed bowls rather than in same-sex bowls. I certainly support this bill, and will be voting for it.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (18:37): I rise to speak on the Equal Opportunity (Sporting Competitions) Amendment Bill 2013, and indicate that I will be supporting the bill. I would just like to place, in context, the reason that we are here. The Equal Opportunity Act 1984 has in its charter an obligation to:

...promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds...

In particular, part 3 of the act prohibits discrimination on the grounds of sex, chosen gender or sexuality. As the opposition spokesperson for women, and lower house spokesperson attorney-general, I think it is important that we recognise that an amendment to this act is not doing something to introduce a new or novel exemption, because the current law allows for exemptions. We currently have exemptions specifically under the act to cover charities, measures intended to achieve equality, sport, insurance and religions bodies.

I just wish to place that on the record, because the introduction of this bill does not actually introduce a new area. Currently, we already allow for exemptions to sport, in recognising that where there is 'competitive sporting activity in which the strength, stamina or physique of the competitor is relevant.' It clearly acknowledges that this is a pre-existing exemption and recognises that.

What we are doing is adding a new provision in the exemption of sport—a redefinition to allow that exemption to be exempt from being rendered unlawful in circumstances where the single-sex competition (such as bowls competitions, as is being considered here), is intended to facilitate or increase the participation of persons, and in particular, to recognise that it would be unlikely that those persons would be able to participate, or that there would be an increase in participation by those persons, if the sporting activity was not able to be excluded as such. This is actually a way of ensuring that more women are able to be active in this sport.

The practical consequences of this type of legislation have been identified, particularly in regional areas of South Australia, where the opportunity to be involved in a single-sex competition is necessary to ensure that they have the opportunity for participation. As the shadow minister for women, who is keen to secure the ultimate objective in relation to this legislation, I would not be tampering with this lightly.

The Equal Opportunity Commissioner herself has determined that temporary exemption be given and she has really issued notice to Bowls SA that continued temporary exemptions would not be an acceptable way to proceed and they should really present back to the parliament to consider this legislative amendment. For all those reasons, it is a mild amendment; it is an appropriate amendment; and it will remedy the situation and enable many more people to enjoy this sport in South Australia. I wish them well in their competitions.

Mr PEDERICK (Hammond) (18:40): I too rise today to support the Equal Opportunity (Sporting Competitions) Amendment Bill 2013 and note that, by the nature of the bill, it will affect more sports than just bowls, so I welcome that. What has happened here is that some people have challenged the way bowls can be played as a single-gender competition in this state.

From what I understand, one of the people who challenged this does not play bowls any more. I am a night owl bowler; I have not done it lately, but I was a night owl bowler at Geranium for probably 15 to 20 years. I am not sure whether I learnt any skill there but I am now a parliamentary bowler in the state parliamentary team and was elected the president of the parliamentary bowling team very recently.

Just on that, I will digress for a very short moment. Parliamentary bowls has had interesting outcomes over time and certainly has had some criticism from the media over many years, but what I have found in the time that I have been involved in this house is the many relationships you have with both sitting and past members and the things you can learn from the people in that competition and from the camaraderie at these events. It certainly is a sport that brings people together.

I certainly commend this bill, because the situation was that you could have the single gender competition in the higher events through to the world of bowling on the global scale, so it just seemed ridiculous that people were not going to be able to have their single gender events. I must say that we need also to acknowledge that we need to be able to have open bowls games, because some of the bowls clubs in my area are certainly short on members, but they did not want to be restricted to that. They wanted to be able to have a single gender competition as well.

With those few words I would just like to commend the members for Taylor and Finniss and I also acknowledge Leith Gregurke from Parrakie who contacted me on this issue, and I wish this legislation speedy passage through the house.

Mr VAN HOLST PELLEKAAN (Stuart) (18:43): I too rise to speak briefly on the Equal Opportunity (Sporting Competitions) Amendment Bill 2013 (affectionately known in this house as the Bowls Bill). I compliment the members for Taylor and Finniss for collaborating on this. As the member for Hammond quite rightly points out, technically it does not only apply to bowls. I know that the member for Taylor would be very well aware of that and would have written it deliberately that way, and it is quite appropriate, but it has come to our attention primarily through the bowls community.

It was not that long ago that I could not possibly imagine that I would ever have an interest in bowls but it is actually on the horizon, I can tell you that. I have played night owl bowls and I thoroughly enjoyed it, and I know that I will become a bowler, so I have a particular, personal interest in this. I also have a professional interest in this because many people in the electorate of Stuart have come to me and complained about the current situation, and they do not want to run on with exemptions.

Interestingly, it has primarily been women who have said 'We do not want to be forced into mixed competitions. We like playing with the women, and the men like playing with the men, and we like it when we choose to play mixed competitions as well. We want complete flexibility.' This bill does this, and I think it is very positive in that way.

There is another wrinkle which some members of this place would understand from their electorates but, certainly in the electorate of Stuart—and I am thinking particularly of the town of Wilmington where I live—the men and women play in totally different geographic areas. The men who play bowls from the Wilmington Bowling Club play north of Wilmington, through Port Augusta and Whyalla and all that way. The women actually play south, into Wirrabara and Laura in the Mid-North and down that way.

It would be a complete nightmare for them if anybody were to try and force them to merge, and to have to play together all the time. When they want to, they can, and they do have very enjoyable, very competitive, mixed competitions when that is appropriate as well. I also think that, given that the vast majority of people who play bowls are senior people in our community, I trust them to decide whether they want to play in a women's team or a men's team or a mixed team, so I wholeheartedly support this bill, because it gives them the opportunity to do that.

Mr BROCK (Frome) (18:46): I also congratulate the member for Taylor and also the member for Finniss for cooperating to bring one bill up into this house so that we can debate and discuss it. As other members here have discussed, I think this is an excellent bill that has come through, and I am only disappointed or surprised that it has come to the situation where we need to put a bill in here to ensure that what is happening out there in the communities of the regional areas can continue to go on.

I am not going to go any further, other than to say I sincerely agree with this bill, and I will certainly be supporting it. Like other members here, I have had numerous calls, not only from the electorate of Frome, but also from all across South Australia including Bowls SA but, certainly, this is a well-deserved and appreciated bill coming forward and I will be supporting it 100 per cent.

Dr McFETRIDGE (Morphett) (18:47): With Glenelg, Holdfast Bay, Somerton and Novar Gardens bowling clubs in my electorate of Morphett, I am very pleased to support this piece of legislation. While I may not have as many bowling clubs in my electorate as some of the country members, can I say that at Holdfast Bay in the last year we have had the Asia Pacific Bowls Championship and also the World Bowls Championship shared with Lockleys. What fantastic events they were. There are very, very strong bowling competitions in my bowling clubs down there, and I am very pleased to support this bill.

As a bit of an aside, a number of years ago a person who is familiar to this house, Ms Edith Pringle, came to see me about the Somerton Bowling Club, which was at that stage a male-only bowling club. She wanted to have it changed so that women could join, and she was successful in that process. Some men did resign in protest, but the club has since gone ahead in leaps and bounds. All of Somerton, Glenelg and Holdfast, and Novar Gardens to a lesser extent, are going ahead with expansions and developments, despite a fire at Holdfast Bay.

The Police Association was having a dinner dance there one night, when an arsonist came in and tried to burn down the place. Like the phoenix rising from the ashes, that club has come back better than ever. I think it has got one of the longest bars in South Australia, if not the longest. The club is bowling on fantastic greens, and all these clubs are a terrific part of the community. This move is something that I know they will strongly support.

Mrs VLAHOS (Taylor) (18:49): As a lawn bowler, the captain of the South Australian parliamentary bowls club, and the girls' unofficial mascot, and also as the patron of the Penfield Bowling Club, which originally raised this issue with me and who taught me how to lawn bowl and who I enjoy much time chiacking with about bowls and participating, I am pleased to move this bill.

Bill read a second time.

Third Reading

Mrs VLAHOS (Taylor) (18:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 18:51 the house adjourned until Thursday, 25 July 2013 at 10:30.