Ferneley v The Boxing Authority of New South Wales

WILCOX J: 1 The issue in this case is whether New South Wales legislation preventing females from registering as boxers is affected by the Commonwealth Sex Discrimination Act 1984.

The New South Wales legislation 2 Section 4(1) of the Boxing and Wrestling Control Act 1986 (NSW) ("the NSW Act") constitutes a corporation called "Boxing Authority of New South Wales" ("the Boxing Authority"). Section 4(2)(b) provides this authority "shall, for the purposes of any Act, be deemed to be a statutory body representing the Crown". The reference in that paragraph is to a New South Wales Act, as distinct from a Commonwealth statute: see s 13(b) of the Interpretation Act 1987 (NSW). However, counsel for Ms Ferneley, Dr Gavan Griffith QC and Ms Kate Eastman, accept that, applying common law principles, the Boxing Authority is to be treated, for the purposes of the Sex Discrimination Act as "the Crown in right of a State". 3 Section 6 of the NSW Act provides for the prescription, by regulations, of classes of boxers according to the style of fighting practised by them. Section 7 requires the Boxing Authority to keep a register in respect of each class recording the names and addresses of persons who are registered as boxers of that class. Registration is important because it is an offence, under s 15 of the NSW Act, for a person to "engage in a boxing contest involving a particular style of fighting" if the person is not registered as a boxer of the appropriate prescribed class. The term "boxing contest" is widely defined (by s 3) to include virtually all boxing contests, displays and exhibitions involving monetary reward. 4 Section 8(1) of the NSW Act provides: "A male person of or above the age of 18 years may make an application to the Authority to be registered as a boxer of a prescribed class." 5 The Act makes no provision for a female person to apply for registration. It follows there is no way in which a female can avoid the application to her of s 15 of the NSW Act; it is always a criminal offence for a female to engage in a "boxing contest" in New South Wales. 6 The exclusion of women from registration was deliberate. In his Second Reading Speech on the Bill for the NSW Act, the responsible Minister, Mr M A Cleary MP said: "I turn now to the question of women boxers and women kick boxers. Women have not sought in great numbers to take part in professional or amateur boxing. However, since kick boxing began to grow in popularity in the past few years, a number of contests have been staged that have included women participants. Under this legislation, women will not be allowed to fight as boxers or kick boxers, amateur or professional. Part of the reason is that the spectacle of women attacking each other is simply not acceptable to a majority of people in our community. It may be said that people do not have to go along and watch such spectacles. However, the Government is unwilling to condone behaviour that is unacceptable by community standards. However, the Government is unwilling to condone behaviour that is unacceptable by community standards. In addition, on the advice available to the government, it would appear that women are more at risk from this kind of sport than men. I have received advice from the State branch of the Australian Sports Medicine Federation which says, in part: 'Special risks for women appear to be associated with injury to the reproductive organs and, in particular, to a potential risk to an unborn foetus if a women were pregnant at the time of her involvement in a boxing match.' The advice goes on to describe the risks to women in some technical detail. It is not very edifying material, and I do not propose to read it in full to honourable members. It is probably enough to say that it recommends that women boxers should wear breast plates and abdominal shields. Any sport that requires that sort of protection for women is too much of a risk for the Government to allow. There would be, of course, enormous risks associated with pregnant women. It is totally impractical to carry out pregnancy tests in a gym or before a fight at a licensed club. The dangers are simply too great. I have also obtained legal advice from the Crown Solicitor's office. I am told that the proposed ban on women boxers and kick boxers does not contravene the Commonwealth Sex Discrimination Act. There is another risk to which women are particularly vulnerable. That is the risk of becoming freaks in some sort of roman circus disguised as a sporting contest. To sum up, I, and the Government, feel that to allow women to compete in these sports would be dangerous to them, would put them at risk of becoming sideshow freaks, and would be unacceptable by current community standards. Women with a genuine interest in these sports will still be allowed to take part as referees or officials. There is no question of barring them from any involvement in a sport they may enjoy. The Government simply is not prepared to expose them to risks that no responsible government should condone. I commend the bills."