EQUAL OPPORTUNITY (SPORTING COMPETITIONS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. CARMEL ZOLLO (18:17): I move:

That this bill be now read a second time.

Within the indulgence of the chamber, given the state of my voice, 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 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 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 sex 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 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.

This amendment will allow sporting associations to conduct single sex competitions for the purpose of increasing the participation of men or women but only if 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.

Debate adjourned on motion of Hon. J.S.L. Dawkins.