Victorian Civil and Administrative Tribunal|2008-11-26

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)

S83 Equal Opportunity Act 1995-application for exemption-bowling clubs seeking to hold single sex competition- Charter of Human Rights and Responsibilities considered - application granted

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415

The Victorian Civil and Administrative Tribunal, has considered an application pursuant to Section 83 of the Equal Opportunity Act 1995 by Royal Victorian Bowls Association Inc. and Victorian Ladies Bowling Association Inc. The application for exemption is to enable the applicants to conduct the following single gender events at State Championship level:

State Title for Singles, Pairs, Triples and Fours
- State Champion of Champions
- Under 18 Singles Championship
- Under 25 Singles Championship
- Over 60 Singles Championship
- Novice Singles Championship

Singles, Pairs, Triples and Fours Championships
- State Champion of Champions
- Group Sides Championships
- Under 18 Singles and Pairs
- Under 30 Singles Championship
- Over 60 Singles and Pairs

UPON READING the material submitted in support of the application the Tribunal is satisfied that it is appropriate to grant an exemption from Sections 13, 100 and 195 of the Act to enable the applicants to engage in the exempt conduct.

The Tribunal hereby grants an exemption to the applicant from the operation of Sections 13, 100 and 195 of the Equal Opportunity Act 1995 to enable the applicants to engage in the exempt conduct.

This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 1 November 2011.

Catherine Holden, Secretary of the St Kilda Bowling Club

The Royal Victorian Bowls Association Inc. and the Victorian Ladies Bowling Association Inc. have made an application under Section 83 of the Equal Opportunity Act 1999 for an exemption.
Both organisations wish to be able to conduct certain single sex lawn bowls competitions. These are the events which they have listed;
For the VLBA these competitions are:

State Title for Singles, Pairs, Triples and Fours
- State Champion of Champions
- Under 18 Singles Championship
- Under 25 Singles Championship
- Over 60 Singles Championship
- Novice Singles Championship

Singles, Pairs, Triples and Fours Championships
- State Champion of Champions
- Group Sides Championships
- Under 18 Singles and Pairs
- Under 30 Singles Championship
- Over 60 Singles and Pairs

The reason why the associations need an exemption to hold these competitive events is that if the associations were to conduct exclusively male bowls competitions or exclusively female bowls competitions, they would be in breach of the Equal Opportunity Act.
In the year 2000 Emily South made a complaint to this Tribunal against the Royal Victorian Bowls Association Inc. when it refused her the opportunity to play lawn bowls in a male only competition. In that case, South v RVBA [2001] VCAT 207, Deputy President Coghlan found that the Association had indeed discriminated against Emily on the grounds of her sex, and so found her complaint proven.
There are, of course, many sports in the community in which there is a division in competition between male and female players. Section 66 of the Act recognises that sporting clubs may exclude people of one sex from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. The South case, therefore, dealt with the question of whether lawn bowls was a sport in which the strength, stamina or physique of competitors was relevant to the outcome.
Deputy President Coghlan found that it was not. In the case Lawn Bowls was determined to be a "gender neutral" sport.
Therefore, as lawn bowls is not a sport which can take advantage of the exception under s66 of the Equal Opportunity Act, if either association was to conduct the single sex events which are the subject of this application, then that association would be acting in contravention of the Act.
Section 83 of the Equal Opportunity Act allows the Tribunal to grant an exemption from the provisions of the Equal Opportunity Act in relation to either a person or class of people, or an activity or class of activity which would otherwise have been in contravention of the Act.
This power to grant exemptions has been used in many different circumstances. In this case, if the application is granted, it will transform what would otherwise be a breach of the Act into lawful activity.
This is not the first time an application for exemption has been made by these applicants for these single sex events.
Shortly after the South decision, there was a great deal of concern in the Victorian bowling community about the ramifications of the decision. The problem the associations faced is that although it was, of course, possible for all of their competitions, which had previously been separated into male and female competitions, to be absorbed into multi sex competition, its winning players were substantially disadvantaged in qualifying to play in national and international competitions.
The reason for this is that competitors in national competitions become eligible by winning the relevant state title. If one assumes, for instance, that a male was to win the relevant Victorian State title and a female was the runner-up, then the male would be disqualified by reason of his sex from participating in the next level of competition in the national arena and the runner-up would be disqualified because she was not the winner of the State competition. Therefore, until national and international competition embraces the principles of equal opportunity under which the Victorian lawn bowlers must play, the best Victorian players may well be excluded from national and international competition.
It was because of this problem that these applicants previously made application for exemption to this Tribunal. The application was heard by His Honour Judge Bowman in September of 2003. The application was contested by those members of the bowling community who did not wish the effect of the South decision to be watered down in any way.
In coming to a decision as to whether or not the exemption should be granted His Honour reviewed several previous decisions on exemption applications. In 2001 His Honour Judge Duggan had been asked to exempt the Victorian Ladies Bowling Association Inc. for the purpose of enabling it to continue to require that a person be female in order to be an affiliated member, or to compete in its competition. That application was refused.
In 2002 Deputy President Coghlan dealt with an application by the Sunraysia District Ladies' Bowling Association for an exemption in relation to the holding of a particular tournament for women only by the name of the Dot Jenkinson Ladies' Pairs. That event is a prestigious womens' only event in ladies' bowling tournaments in Victoria commemorating the achievements of a champion woman bowler. Deputy President Coghlan allowed the exemption on the grounds that the event commemorated a champion woman bowler, and as a women only event, encouraged the participation of women in the sport of bowling. (I have recently extended this exemption for the same reasons.)
Judge Bowman also referred to and applied the principles set out by Deputy President Cate McKenzie in re Fernwood Fitness Centre (1996) EOC 92-782. This decision is a major analysis of the principles to be considered by the Tribunal in exercising the exemption power.
In that case an exemption was granted to a fitness centre to accept memberships from women and exclude men. In granting the exemption, the then Chairman of the Equal Opportunity Board and now Deputy President of this Tribunal Cate McKenzie, suggested that in dealing with exemptions one should first ascertain that there is an arguable case that the circumstances which are the subject of the exemption constitute discrimination. If the answer is yes, then the next question to be asked is whether the exemption is appropriate in the light of the objectives and scheme of the Act. In considering that question the Tribunal will need to take into account the particular circumstances of each case, the reasonableness of the exemption sought, how close the resemblance is to the various statutory exceptions in the Act, and various other factors.
As I have said, the granting of an exemption has a profound effect. It converts what would be an unlawful act into a lawful act. It prevents a person making what would otherwise be a valid claim of discrimination. The exemption may be granted on the Tribunal's own initiative or on the application of a person whose interests, in the opinion of the Tribunal, are or may be affected by the exemption.
Thus, successive cases regarding exemptions have sought to lay down basic guidelines to be applied in the exercise of the clear discretion given.
The reason for the importance of the Fernwood case and cases following it is that there is very little in section 83 of the Act which gives any guidance at all as to what factors should be taken into account in granting an exemption.
In exercising his discretion to grant the exemption previously sought for these events, Judge Bowman analysed the purpose of the exemption sought in each event and decided to grant the exemption only to events which were part of what was described as the elite pathway leading to national and international championships. He determined that events at a lower level did not require an exemption as the purpose of the exercise of the exemption power was purely to redress the disadvantage which would otherwise be caused to both males and females by reason of not being able to progress to the elite levels of their chosen sport.
The application before me is almost identical to the application which was before Judge Bowman. Given the level of interest in the matter when it was last before the Tribunal, I decided to require the applicant to advertise the application through its website so that all members would have the opportunity of making their views known to the Tribunal on the application.
I also ordered that notification be sent to all clubs, either by email, or where email contact was not possible, by post. I further ordered an advertisement to be placed in the Herald Sun newspaper giving notice of this application.
As a result of this, I have received a very substantial number of responses indeed. I estimate that I have received responses from over 1,000 individual club members. Of those responses, I have only been able to identify two responses which were opposed to the granting of the exemption in the terms sought.
Some of the responses supporting the applicants indicated that those respondents would prefer to go back to the situation as it existed before the case of South was decided - that is, that the applicant associations should be free to conduct single sex competitions without any restriction at all. As I have said, this is not the purpose of this application before me.
However, it is clear from all of the submissions made in favour of the application that the present exemption appears to be working well. It provides plenty of opportunity for mixed play. This has had the advantage that clubs which may not have been able to attract sufficient numbers for a single sex side are able to field full teams, and so reinvigorate their play. It has had the advantage of attracting younger members to the clubs, for I am told that younger members are less likely to want to play in single sex teams. It has also allowed the elite players to be able to compete in single sex competition at the State Championship level, and thereby qualify for national and international recognition.
As I have said, there were two submissions received against the application. One of these appears to me to have been misconceived, as the writer appeared more concerned about the lack of single sex teams at pennant level.
The other included support for the exemption for elite games but included this comment:

'To my mind it is appropriate that the ladies continue to seek the separation because - their bowls are often lighter than those of men - they can still be intimidated or overawed by the thought of such contests, especially at club level. However, as women become more and more comfortable competing with men, this may well be a situation that disappears within about five years. Similarly, it would be helpful to require initially that at least one woman bowler and at least one man be a member of each triples or fours team at every level. This could be termed as positive action towards anti-discrimination. Otherwise we may remain divided forever.'

I further have affidavit material from the applicants, confirming that neither applicant is aware of any dissatisfaction with the operation of the existing exemption, nor of any detrimental effect on bowlers of either gender arising from the operation of the exemption. In particular Joan Eileen Adams, the President of the Victorian Ladies Bowling Association Inc. has deposed in her affidavit that the selection processes and competition structures made possible by the original exemption granted in 2003 and the extension granted in September 2005 have worked efficiently and have provided a structure that increases opportunities for state, national and international selection for Victorian players.
There were many club members who attended the hearing. Catherine Holden, the Secretary of the St Kilda Bowling Club, appeared to register interest in being heard in respect of this application. She told me that she was content for the exemption to be granted for elite competitions, but that clubs such as hers were keen to continue to promote mixed team play, as this was very popular with members, and single sex teams were a barrier for younger potential members.
I invited the Victorian Human Rights & Equal Opportunity Commission to be represented in this proceeding. The Commission declined that invitation, but sent a letter setting out the Commission's views. In respect of the issues considered so far, the Commission's comment is as follows:

'I note that similar exemptions have been granted in the past and that it appears the Tribunal has adopted a satisfactory approach to ensure any exemptions granted are least restrictive as possible by only granting the exemption in respect of competitions that are part of the "elite pathway" to national and international competitions which are substantially organised as single gender competitions.

The Commission did not suggest that this application should be refused.
Thus, on the authorities discussed above, and taking into account the matters raised in the submissions to me which I have identified, it is my clear view that it is appropriate to grant an exemption in the terms requested. This is because the purpose of the exemption sought is to redress what would otherwise have been a significant disadvantage to both male and female players which is brought about by the fact that national and international competitions are not mixed gender competitions.
The purpose of the exemption is complementary to the purpose of the Act in that it facilitates the playing of mixed gender competitions within the bowls community without bringing mixed sex competitions into disrepute because of their deleterious impact on elite players. It embodies a practical solution to an otherwise insoluble problem.
In redressing this disadvantage, the exemption is consistent with the principles established in Fernwood, taking into account the objectives and scheme of the Equal Opportunity Act, the reasonableness of the exemption sought and its public policy objective.

The question which next needs to be considered is whether any of the foregoing analysis is changed by reason of the application of the Victorian Charter of Rights and Responsibilities ("the Charter").
I requested the applicants to provide submissions to me as to whether the Charter did apply, and if it did apply, to what extent the Charter would require me to consider matters further than those so far outlined.
The Commission has made submissions on the Charter as follows:

'It has been the Commission's view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission's position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.'

The Commission has not expressed a view, one way or the other, as to whether the logical analysis which I have reproduced above should lead me to any different conclusion in this case as to whether or not the exemption should be granted.
Section 32 of the Charter tells me that so far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. It further tells me that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
The applicants' first argument to me was that the Charter was not relevant to this application. This was said to be because no interpretation of s83 is required. That is, s83 is clear on its face, and it simply gives this Tribunal a wide power to grant an exemption. If the section of any Act which I am considering is clear and unambiguous, the applicants suggested that a s32 analysis was not required.
In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights.
If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.
As I have said, s83 gives me the power to grant an exemption, but does not provide any guideposts for me as to how that power should be exercised. The Commission's submission is that in interpreting the word 'may' in s83, I must interpret it in a way that is compatible with human rights and therefore I must not use the discretion provided in that section to sanction an exemption if the terms of that exemption are not compatible with human rights.
In other words, the discretion under section 83 of the Equal Opportunity Act is not unlimited. Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.
This is not a very different principle from that suggested by Cate McKenzie in Fernwood. The Tribunal already looks at proposed exemptions to see if they are consistent with, or compatible with, the objectives of the Equal Opportunity Act and with redressing disadvantage_._
This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption.
It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.
In that case the then President of this Tribunal granted an exemption to the Boeing group of companies to discriminate on the ground of race in employing staff to sensitive defence projects, because that discrimination was required by US security regulations as a condition of receiving US defence contracts.
Although that case was agreed by all to not attract the application of the Charter, the Commission had made submissions at that hearing similar to the submissions which have been made before me in this case, and anticipating the Charter arguments that have been raised in this case.
The essence of those submissions was that the discretion to be exercised under s83 of the Act must be exercised by applying a reasonable limitations test of the type articulated in section 7 of the Charter, and in international human rights norms.
The President's view expressed in Boeing was that an exemption could be granted even though unrelated to the objectives of the Equal Opportunity Act, and possibly even if diametrically opposed to them, if the exemption could be justified by some public or private interest.
In his view, factors similar to those set out in the present s7 of the Charter should not necessarily be the starting point in exemption applications. He considered the correct question to ask to be whether the exemption was necessary or desirable to avoid an unreasonable outcome. Thus, prohibited discrimination could be taken into account, but also to be taken into account was community or economic interest and questions of practical convenience.
In her recent decision of BAE Systems Australia Ltd (2008) VCAT 1799, Deputy President McKenzie referred extensively to Boeing and indicated a difference in approach. In her view, the discretion under s83 needed to be exercised in the light of the objectives and scheme of the Act as a whole, and taking into account that the effect of an exemption is to take the relevant conduct out of the Act's prohibitions and to deny the redress which the Act otherwise gives to a person who is a victim of that conduct. She suggested that the purpose which the exemption was to serve must be powerful to justify such a step and that the important prohibitions and protections in the Act should not be lightly overridden.
In applying those principles to the case before her, she allowed the exemption. In allowing it she indicated that she was satisfied that the applicant was in all other respects committed to equality of opportunity for its workforce and had in place comprehensive procedures, designed to educate and train its workforce as to the prohibitions on discrimination. She also found herself satisfied that there were no realistic non-discriminatory alternatives to what was sought in the exemption and that the applicant had attempted to conduct its business without seeking an exemption. She further took into account that the dilemma faced by the applicant in that case was not of the applicant's making, or within its control - that is, it was constrained by United States law and United States Government policy to seek the exemption which it did.
She specifically did not give great weight to the commercial advantage which the applicant might gain by being granted the exemption, or the commercial disadvantage which it might suffer if the exemption were not granted and she doubted whether commercial advantage alone would be a powerful enough reason to grant an exemption which would have the effect of overriding the prohibitions in the Equal Opportunity Act.
Deputy President McKenzie did not consider herself to be bound by the Charter in deciding BAE. I have indicated that I consider myself clearly am bound by the Charter in this proceeding. I turn therefore now to consider the factors which must be applied under section 7 of the Charter.
Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption.
The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination.
The word "discrimination" is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited.
In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex.
This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.
I must then decide whether or not the limit on those rights which the exemption would create is a reasonable limit which, in the words of section 7(2):

can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.'

The applicants say that the importance of the purpose of limitation is that the exemption seeks to promote equal opportunity around Australia for elite bowlers of both genders. That is, as I have previously expressed it, the Act currently prevents the applicants from running competitions exclusively for male or female bowlers. Without an exemption, this extends to State Championship level competitions, which pave the way for national and international competitions, which are almost entirely single gender competitions. Victorian players of both sexes are at a disadvantage because without single gender competitions at State Championship level, it is likely that they will not be promoting their best male and female players.
Further, a person of one gender may lose an opportunity to compete at national level due to someone of the other gender winning their respective competition at the State level. For example, if a male bowler wins a female State Championship, he will not be able to move onto the national level because of the gender-specific nature of those competitions and the best performed female bowler will not progress along the pathway either.
The importance of the purpose of the limitation was therefore said to be that it will prevent the inequality of opportunity arising in such situations by allowing the best male and female Victorian bowlers the opportunity to move from their respective State Championship to the National Championship.
The nature and extent of the limitation was submitted to be as narrow as possible, being limited only to competitions which are part of the elite pathway to national and international competitions. It is not sought to expand the exemption to any competition which does not lead on directly, either at present or in the future, to a national pathway.
Further, it was submitted that the relationship between this limitation and its purpose is rational and is neither arbitrary nor unfair, nor based on irrelevant considerations, nor designed to confer some commercial advantage.
The last point is of significance. This is an application made purely in the interests of the sport of lawn bowls, and not for any commercial reason.
The applicants further submitted that there are no other, less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve for as long as national and international competitions remain gender-segregated.
Further, the applicants submitted I could take into account the evidence before the Tribunal that the exemption is presently working well.
All of the above factors combine to persuade me that the exemption proposed in this case is a reasonable limit on the right which I have identified of a person to play lawn bowls without being discriminated against on the grounds of sex.
The exemption may not be reasonable forever. Its reasonableness depends upon the factual circumstances I have outlined, and particularly on the continuing problem that national and international competitions are single sex competitions. Should this circumstance change, the future need for this exemption may well fall away. On the facts as I have found them, it is unlikely that this will occur in the near future. I have therefore decided that the length of the exemption should be the maximum of three years.

Is the Tribunal a public authority in granting an exemption?

There is a question remaining as to whether, in granting an exemption, this Tribunal needs to make a determination as to the nature of the exemption proceeding itself. In particular, the question arises as to whether in granting an exemption, the Tribunal is acting as a public authority. Section 38 provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. If the Tribunal is acting as a public authority when it grants an exemption, it must comply with the requirements of s38.
Deputy President McKenzie considered the nature of the power exercised under section 83 in BAE and said this:

'An exemption proceeding is a proceeding of an unusual kind. It can commence on application or on the Tribunal's own initiative. Generally there is no "dispute" or "respondent". An exemption, if granted, has future application and operates by notice published in the Government Gazette. It may relate to a class of people, activities or circumstances.'

A Court or Tribunal can be characterised as a public authority in some circumstances. Section 4(j) provides that a Tribunal or a Court is not to be so regarded, except when the Tribunal is acting in an administrative capacity.
I am aware that there is a substantial debate as to the circumstances in which a Court or Tribunal can be said to be acting in an administrative capacity, and therefore be defined as a public authority under the Charter.
However, it appears to me that in this case the resolution of that question will make no practical difference to the issues which I am to decide. I have already indicated my view that in interpreting s83, I must do so in accordance with s32 of the Charter. For all practical purposes, this means that I am obliged, in making my decision, to give proper consideration to the relevant human right engaged. This will lead to the same result whether I regard my obligation as arising out of s32 or s38 of the Charter.

The applicants suggest, and I agree, that whether this application is analysed purely in accordance with s83 and the unchallenged authorities on its interpretation, or whether it is analysed under s83 as interpreted in accordance with the Charter, the exemption is reasonably justifiable having regard to all of the factors I have mentioned above.
In the circumstances therefore I propose to grant the exemption sought.

Opportunity Act 1995

S83 Equal Opportunity Act 1995

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)

At a glance

Court

Decision date

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Judgment (29 paragraphs)

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)

Legislation Cited (2)