1 I order that the following notice be published in the Government Gazette:

The Victorian Civil and Administrative Tribunal grants an exemption to Netball Victoria from the operation of section 65 of the Equal Opportunity Act 1995 to enable it to conduct netball competitions for girls only, if the competition is organised for persons who are 12 years or 13 years. This exemption remains in force for a period of three years from the date this notice is published.

2 It is a condition of this order that Netball Victoria must monitor the consequences of the granting of this exemption and, upon being requested to do so by the Equal Opportunity Commission, Netball Victoria must provide the results of such monitoring to the Equal Opportunity Commission.

3 It is a condition of this order that Netball Victoria must provide suitable opportunities for boys aged 12 years and 13 years to participate in netball competitions.

1 In Taylor v Moorabbin Saints Junior Football League[1] I considered the question of discrimination against girls in Australian football. I found that it was unlawful for football associations to exclude girls from Australian Rules football competitions for those aged under 14 years. This finding followed a detailed examination of the relevant provisions of the Equal Opportunity Act 1995 ("the Act") and the consideration of evidence.

2 In the Taylor case it had been argued that the law prevented football associations from excluding girls from Australian Rules football competitions, but did not operate so as to exclude boys from, for example, netball competitions. In this regard, it was said that section 66 of the Act provided a one-way exemption. I did not accept this, for detailed reasons given in my decision.[2] However I was concerned that my decision could have the implication that boys could not be lawfully excluded from under 13 and under 14 competitions in sports organised for girls, such as netball. I commented:

There is the potential that this may discourage girls from playing competitive sports, which would be undesirable. It may be that the law needs to be further considered and, possibly, revised.

In the light of these comments, I indicated that the tribunal would invite written submissions as to whether it should exercise the power to grant an exemption under the Act to allow males to be excluded from participation in certain competitive sporting activities organised for girls.

3 In early 2004 an advertisement was placed in The Age newspaper inviting submissions about the making of such an exemption. Various submissions were received. One such submission, from the Equal Opportunity Commission of Victoria, expressed the view that a broad exemption was undesirable and the matter should be approached on a case by case basis. I accepted this view.

4 A specific request was made by Netball Victoria that an exemption be granted in relation to the playing of netball. I decided not to convene a hearing on this matter forthwith, so as to better ascertain the consequences of the Taylor decision; and also to see if the Parliament might take up the invitation to effect legislative change.

5 After the passage of approximately 18 months, the matter has now been brought to a hearing, at which both the Equal Opportunity Commission and Netball Victoria were represented. Interestingly Football Victoria was also represented and gave a report on the impact of the Taylor decision. The tribunal is grateful to Football Victoria for providing such a report.

6 I was informed by Football Victoria that there have been no complaints about the consequences of the Taylor decision. It would seem that girls are increasingly playing football with boys up to the under 14 level. Further, there have been initiatives enabling girls to play in girls-only competitions when they graduate from the under 14 competition. The response of Football Victoria and the football community to the Taylor decision is commended.

7 As for legislative change, notwithstanding that a parliamentary committee has examined the Act, none seems forthcoming.

8 In this situation, I believe it is necessary to deal with the question of netball and the application by Netball Victoria.

9 For the reasons given in the Taylor decision, I have a genuine concern that anti-discrimination laws in relation to sporting competition might operate to discriminate against girls. In essence this is because boys aged 12 and 13, generally being slightly stronger and with better ball skills, and often being more competitive, will dominate play and discourage girls from participating. This view was supported by detailed information provided by Netball Victoria as well as Women Sport and Recreation Victoria Inc, a broad based organisation designed to promote women's sport. Further, the tribunal was provided with a detailed study by Associate Professor Geraldine Norton and Professor John Carlson, which was to the effect that girls aged 11 to 14 years must have the right to choose whether or not they play competitive, low contact sport against aged matched males. [3]

10 In the circumstances, it is appropriate that an exemption be granted. The exemption will be for three years from the date that notice is published in the Government Gazette. I intend to impose two conditions upon the exemption. The first requires that the effect of the exemption be monitored and that a report be provided to the Equal Opportunity Commission if called for. The second requires Netball Victoria to provide suitable opportunities for boys aged 12 and 13 years to play netball. I will not seek to define what is meant by a "suitable opportunity", as this will depend upon the circumstances. I am confident that Netball Victoria will abide by both these conditions as, I find, it is committed to advancing the interests of both boys and girls in relation to the playing of netball.

[1] [2004] VCAT 158.

[3] The law does not allow any discrimination in relation to boys or girls aged under 12 years. This decision is not concerned with boys or girls less than 12 years.