Victorian Civil and Administrative Tribunal|2001-02-28|Before: Ms J

South v RVBA [ac al 131200] [2001] VCAT 207 (28 February 2001)

Anti-Discrimination - lawn bowls - refusal of affiliated membership on the basis of sex - discrimination in sport - whether exception applies - whether the strength, stamina or physique of competitors is relevant - Equal Opportunity Act 1995 ss12, 65, 66 and 136

RESPONDENT Royal Victorian Bowls Association Inc

DATES OF HEARING 21, 22, 23 August and 18 and 19 October 2000

Having heard the evidence and representations that the parties have made the Tribunal pursuant to s.136(a) of the Equal Opportunity Act 1995 (the Act) finds that the complaint is proven and pursuant to s. 136(a)(iii) orders that the Respondent forthwith amend its rule defining affiliated membership by deleting the requirement that only males can be affiliated members.

COMPLAINANT Ms F. Hampel Q.C. with Ms J. Bornstein instructed by Wisewoulds

RESPONDENT Mr H. Borenstein with Ms M. Richards instructed by Deacons

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

1. Miss Emily South, the complainant in these proceedings, is a 19 year old who plays lawn bowls. She is a keen player, who has been a member of the St Kilda Bowling Club (the Club) for approximately seven years. The Club is an affiliated member of the Royal Victorian Bowls Association (the RVBA), which is the respondent.

2. The RVBA conducts a Metropolitan Pennant Bowls Competition held on Saturday afternoons. Miss South wants to play in this competition because she is unable to play in the Women's Pennant Competition played during the week at a time which conflicts with her school and university commitments. She wishes to play lawn bowls at the highest level and the Club considers that she is capable of effectively playing in the RVBA Saturday afternoon pennant competition. One cannot play bowls in the RVBA Saturday afternoon pennant competition unless the club is affiliated with the RVBA and one is an affiliated member.

3. In that context, on 20 June 1998, Mr David South, the Club's honorary secretary, wrote to the RVBA requesting that Miss South be registered as an affiliated member of the Club.

4. On 29 July 1998, the executive officer of the RVBA, responded to Mr South as follows :

"We refer to our telephone conversation and your recent request to affiliate Emily South as a Junior affiliated member of the RVBA.

Your cheque was banked in error and we now enclose for your attention, our cheque in refund of the $8.00 subscription.

We are unable to accept the affiliated request because as you would know, the Association's Constitution Clause 3 indicates that an affiliated member is a male member of any affiliated Club.

We would suggest that you redirect the affiliation application to the Victorian Ladies Bowling Association".

5. The refusal to accept her request for affiliation led her to lodge a complaint with the Equal Opportunity Commission (the Commission) against the RVBA on 8 December 1998.

6. In her complaint to the Commission she stated that she believed that the decision of the RVBA constituted discrimination on the basis of sex, in contravention of ss.98 and 65 of the Equal Opportunity Act 1995. She stated that because she is female, the RVBA refused to allow her to play in Saturday pennant competition, and is prohibiting the Club from selecting her to represent the Club in that competition.

7. On 16 February 1999, the Commission referred the complaint for conciliation. On 30 November 1999, the Commission notified Miss South that it was not considered reasonably possible that the complaint may be successfully conciliated.

8. On 6 January 2000, the Commission received written notice from Miss South requiring the Commission to refer the complaint to this Tribunal. On 6 March 2000, the Tribunal received the complaint.

9. Directions were made for the filing of particulars of complaint and defence, of statements from all witnesses on whom the parties relied and of statements of legal contentions. The hearing commenced before me on 21 August 2000. It continued until 23 August 2000 and was adjourned, resuming on 18 October 2000. A number of witnesses gave evidence and were cross-examined and submissions were made. All witnesses tendered statements, gave evidence and were cross-examined. Miss South gave evidence. She also relied on the evidence of her father, David South, who is Secretary of the Club; Mr Dave Sutherland the Club's President; Mr David Hanlon a member of the Yarraville/Footscray Bowls Club and Dr Jeff Walksley, Associate Professor, Department of Human Biology & Movement Studies at RMIT University.

10. The RVBA relied on the evidence of Mr Don Meikle who has an M.A. and teaches in universities in the areas of anatomy and kinesiology; Mr Geoffrey Hosford who has an Honours Diploma of Physical Education and who lectures in Human Movement Science and Sports Bio-mechanics; Mr Noel Lythgo who has a Masters Degree in Bio-mechanics and is a lecturer in Bio-mechanics at the Australian Catholic University; Ms Melissa Arkinstall who obtained a Bachelor of Applied Science and Human Movement at RMIT in 1994 and is currently undertaking a Master of Applied Science by research in the Department of Human Biology and Movement Science at RMIT University; Mr Lachlan Tighe, National Development Manager of Bowls Australia; Mrs Valmai Lewis Immediate Past President of the Victoria Ladies Bowling Association and Mr Graeme Hosken a board member of the RVBA.

11. Miss South seeks an order from the Tribunal that the RVBA refrains from committing any further contravention of the Act in relation to her; an order that the RVBA register her as an affiliated member; and an order that the RVBA alter its constitution so as not to contravene the Act in that it discriminates against members of affiliated clubs on the basis of their sex.

12. It is common ground that the RVBA has refused to register Miss South as an affiliated member, and has not permitted the Club to select her to play in the RVBA's Saturday metropolitan pennant bowls competition because she is not a male member of an affiliated club.

13. On its face, this is in breach of s.65 of the Act which states :

A person must not discriminate against another person -

(a) by refusing or failing to select the other person in a sporting team;

(b) by excluding the other person from participating in a sporting activity."

14. The RVBA contends that their actions do not breach s.65 because of the operation of s.66 which states:

"66. Exception - competitive sporting activities

(1) A person may exclude people of one sex from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

(2) A person may restrict participation in a competitive sporting activity -

(c) to people with a general or particular impairment.

(3) Sub-section (1) does not apply to a sporting activity for children under the age of 12 years".

15. The RVBA submits that the competition from which Miss South is excluded, is a competitive sporting activity in which the strength, stamina or physique of competitors is relevant, so that the RVBA is permitted by s.66(1) to exclude females from the competition. Further, it submits it is permitted to require affiliated clubs to exclude females from the sides they enter in the competition and that the clubs do not contravene s.65 by complying with this requirement.

16. Who must satisfy the Tribunal that the exception in S66(1) applies?

17. In the parties' statements of legal contentions, Miss South submitted that so far as the Respondent relies on the exception in S66(1), it is for the Respondent to prove that pennant bowls is a competitive sporting activity in which strength, stamina or physique of competitors is relevant and therefore exempts it from the operation of S.65. The RVBA submitted that it was the complainant who has the onus of excluding the application of the exception.

18. During the hearing Miss Hampel, counsel for Miss South, sought to split the case and to lead evidence first to prove Miss South's exclusion from the sport on the basis of her sex and submitted that then the Respondent should be called upon to adduce evidence on which it relies in order to support its positive defence that bowls is a game in which strength, stamina or physique are relevant and therefore justify the exclusion.

19. Ms Hampel submitted that the very words of S66 made it clear that the onus rests upon the person who relies upon the exception. She contrasted that section with S33 of the 1984 Act, which was the Act that was being considered in the Heinz case and Keefe v McInnes [1991] VicRp 64; [1991] 2 VR 235. She referred to the very different form of wording used in S33 and the different form of exception referred to.

20. Mr Borenstein, counsel for the RVBA submitted that once the RVBA has discharged the evidentiary onus of introducing evidence raising the matters in s.66(1) of the Act, Miss South has the onus of excluding these matters. He submitted that unless Miss South can disprove the matters set out in s.66(1) she will not establish unlawful discrimination, and it relied on a decision of the Court of Appeal in H J Heinz Company Australia Ltd v Turner [1998] 4 VR 872 at 877-8. Counsel submitted that that was supported by s.12 of the Act which makes clear that the Act does not prohibit discrimination if an exception in Part 3 of the Act applies. As I understand his submissions about S12, a section not contained in the 1984 Act, it is that the prohibition in S65 that the applicant is relying on does not even arise unless the person relying on it excludes the application of S66(1). He submitted that S66(1) is permissive and although it does not use the same words as S33, there is simply a semantic difference arising from the current style of framing legislation. He submitted S66 says one may exclude and it follows directly after S65 which says that one must not discriminate, whilst S12 says it is not discriminatory if there is an applicable exclusion.

21. The Heinz case involved the application of s.21 of the Equal Opportunity Act 1984 and, in particular, s.21(4)(d). However, in this case, we are concerned with the application of the 1995 Act.

22. The Tribunal's predecessor, the Anti-Discrimination Tribunal, considered the question of who had the onus, under the 1995 Act, of proving that an exception applied in Ellis v Mount Scopus Memorial College, an unreported decision of the then President McKenzie dated 29 March 1996. I quote from her reasons :

"Under the 1984 Act, there was often included in the same section a provision making discrimination in a particular respect unlawful and another provision that the first provision did not apply in certain circumstances. A section in this form is s33. That section was considered in Keefe v Mcinnes [1991] VicRp 64; [1991] 2 VR 235 at 243-4). In that case, Marks J held that it was for the Complainant to prove that there was unlawful discrimination under s33(1), and also that the exception provision in s33(3) was inapplicable. On the other hand, the burden of introducing evidence of an exception in s33(3) lay on the Respondent. His Honour based his conclusion on the view that, properly characterised, s33(3) was not a true exception but was part of the description of unlawful discrimination.

The Equal Opportunity Act 1995 deals with `exceptions' in a different way. `Exceptions' are placed apart from the description of unlawful discrimination. An example is Division 3 of Part 3, which deals with discrimination in education. S37 describes what discrimination is prohibited. Sections 38 to 41 set out a number of exceptions. Each of the sections containing exceptions is headed `exception -`, which is then followed by a brief description of the particular exception. Each begins (with minor variations) `an educational authority ... may', and goes on to specify that permissible conduct.

Part 4 of the Act is headed `General exceptions to and exemptions from the prohibition of discrimination'. It sets out a number of other exceptions to the Act. This heading makes it unnecessary for each section in the Part to be headed with the word `exception'. Some sections are expressed positively, in similar terms to the exceptions in Division 3 of Part 3 - `a person may ...' (eg ss69, 70 & 72). Others are expressed negatively - `nothing in Part 3 affects', or `nothing in Part 3 applies to' (eg ss 71, 74, 75 & 76).

Section 12 covers all the exceptions and exemptions. It provides that the Act `does not prohibit' excepted or exempted conduct.

In my view the structure and form of the exceptions in the 1995 Act are so different from those of the exceptions in the 1984 Act that they require a different construction. In my view, they are true exceptions, and the onus lies on the Respondent to prove that they apply (as to the general rule relating to exceptions, see Sun Securities Ltd v National Companies and Securities Commission [1990] 2 ACSR 796). I am confirmed in this view by the explanatory memorandum to the bill for the Equal Opportunity Act 1995 (as to reference to explanatory memoranda see interpretation of legislation Act 1984 s35; Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 136-7). The note to clause 12 of the Bill in that Memorandum reads -

`Clause 12 makes it clear that if an exception under Part 3 or Part 4 or an exemption under Part 4 applied it is not unlawful discrimination. The onus lies upon the person who claims an exception to prove that the exception applies'."

23. Although Ellis' case concerned an application to strike out a complaint, the question of the ultimate burden of proof had a bearing on the principles to be applied in considering the application. I agree with the approach taken in that case that the onus lies on the person who claims an exception to prove that the exception applies. That was the approach adopted by the Tribunal in Re Hall v Victorian Amateur Football Association (1999) 15 VAR 183 in which the Presiding Member was Kellam J. In that case the exception in s.80(1) was in question. I quote from the Tribunal's reasons at p. 185 :

"Section 80 is included in Part 4 of the Act which is headed `General exceptions to and exemptions from the prohibition of discrimination'. Section 12 of the Act explains the effect of exceptions such as the one in s.80. If an exception applies to conduct, that conduct is not prohibited by Part 3 of the Act. It is common ground that the onus of proving that s.80(1) applies to the respondent's conduct in this case is on the respondent (see also explanatory memorandum to Clause 12 of the Equal Opportunity Bill 1995; Ellis & Ors v Mount Scopus Memorial College (1961) EOC 92-824; Colyer v State of Victoria (VSCA) unreported, 12 September 1997".)

24. The reference to the decision in Colyer's case is to the obiter remarks of Kenny JA, as she then was, in the now reported case Colyer v State of Victoria (1997) 12 VAR 175. In that case, the appellant had submitted that it was incumbent on the State, as the party seeking to bring itself within the exception, to establish the facts which would attract s.82(1). Section 82 is found in Part 4 of the Act which covers general exceptions to and exemptions from the prohibition of discrimination. The learned judge said :

"The appellant's submission may well have been correct, in my view, had the Tribunal been exercising the jurisdiction conferred by ss 134 or 159 of the Act. I do not think that the appellant's submission correctly states the position when the question arises under s 156(1)".

25. This case involves the hearing of a complaint under s.134 of the Act referred by the Commission under s.117 of the Act. What is in question here is the application of Division 7 of Part 3 and discrimination in sport. Though not an exception or exemption under Part 4 of the Act, S66 is clearly not part of the total statement of the prohibited discrimination. The unlawful discrimination is described in S65 and placed apart from that description are the exceptions in S66. In my view S66 is a true exception. I do not accept the respondent's submissions that the onus of establishing the exception is on the applicant. I proceed on the basis that it is for the respondent, who is the party seeking to bring itself within the exception, to satisfy me that the exception applies.

26. If the exception in S66(1) applies, S12 of the Act provides that the Act does not prohibit discrimination. S66(1) provides:

"A person may exclude people of one sex from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant".

27. The RVBA must satisfy me on balance that none of these factors (being strength, stamina or physique of competitors) is relevant. But in what way strength, stamina or physique must be relevant to the game of lawn bowls so that S66(1) applies, is not clear.

28. The Anti-Discrimination Tribunal in Robertson v Australian Ice Hockey Federation (McKenzie P, 26 March 1998) and this Tribunal in Re Somers v Mountain District Netball Association (1998) 14 VAR 235, considered what is meant by "relevant".

29. In Robertson's case, the President, as she then was, said :

"Section 66(1) refers to a sporting activity `in which the strength, stamina or physique of competitors is relevant'. What relevance must the strength stamina and physique of competitors have to attract the operation of s66(1)? Does it mean relevant to the sporting activity itself, or relevant to the outcome of the sporting activity? One interpretation of the sub-section would be that it permits women to be excluded from a sporting activity which requires strength stamina or particular physical powers from those who undertake it. On this basis, it would permit the exclusion of women from sports such as horse racing, because that is a sport which requires (at the very least) some strength and stamina from the riders. However, to accept this interpretation would be to ignore the rest of the sub-section. The sub-section must be read as a whole. It permits the exclusion of one sex from a competitive sporting activity where the relative strength, stamina or physique of each sex is relevant. In other words, the sub-section is directed to competitive sporting activities where, if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors. This interpretation is consistent with the objectives of the Act which include the elimination (as far as possible) of discrimination and the promotion of acceptance and recognition of everyone's right to equality of opportunity (s3). Exceptions to the prohibitions of the Act, like other statutory exceptions, should be construed strictly and in the light of the objectives of the Act. It would not be consistent with the objectives of the Act to construe one of these exception provisions to authorise discrimination against one sex or the other in competitive sport, where there is no disparity between the requisite strength, stamina or physique of men and women that would prevent them competing together in the sporting activity.

My conclusion as to the interpretation of s66(1) is broadly consistent with the rest of the section and with the few authorities in which provisions of a similar kind have been considered. Section 66(3) provides that s66(1) does not apply to a sporting activity for children under 12 years of age. By this sub-section, Parliament has made it clear that, with children under a certain age, exclusion of one sex from participation in a sporting activity on the basis of relative strength, stamina or physique is not covered by the exception.

Similar provisions to s66(1) appear in other jurisdictions (see for example Equal Opportunity Act 1984 (SA) s48; Discrimination Act 1991 (ACT) s41; Human Rights Act 1993 (NZ) s49; Sex Discrimination Act 1984 (Commonwealth) s42). In other jurisdictions, exclusion of one sex from participation in a sporting activity is only permissible if it is reasonable to do so, having regard to the strength, stamina and physique of competitors (see for example Anti-Discrimination Act 1992 (NT) s56; Anti-Discrimination Act 1991 (QLD) s111).

The South Australian Sex Discrimination Board held that an exception in the South Australian Sex Discrimination Act 1975 in similar terms to s66(1) of the Equal Opportunity Act 1995 (Vic) did not permit the exclusion of female drivers in trotting races for horses, because the main requirement for those races was the ability to drive in those races (Re application by Trotting Control Board_, Sex Discrimination Board No 1/1978, unreported CCH Equal Opportunity Law and Practice volume 1, p 58, 504). On the other hand, in relation to tennis for boys and girls under 13, the South Australian Supreme Court agreed with the conclusion of the South Australian Equal Opportunity Tribunal the physical attributes (including strength) of male and female competitors were a relevant factor in the outcome of that sporting activity. These views were expressed when discussing a provision of the South Australian Equal Opportunity Act 1994 similar to s66(1) of the Victorian Act (_Commissioner of Equal Opportunity v Parsons and Ors [1989] EOC 92-278).

30. Mr Borenstein, in the submissions he addressed during the hearing referred to earlier decisions in relation to s.66(1). Referring to the construction adopted in those cases, and proceeding on the basis that the applicant had to prove the exception, he submitted :

"With respect, it is submitted that this construction of section 66(1) of the Act requires words to be read into the subsection that are not there. Section 66(1) of the Act says nothing about the strength, stamina or physique of each sex, or uneven competition, or disparity between the sexes with regard to one of those matters. That these additional factors are not to be read into the sub-section is reinforced by the fact that the issue of even or effective competition is dealt with in a separate exception in section 66(2)(a) of the Act. To give section 66(1) the construction adopted by the earlier decisions would make it otiose.

Section 66(1) does not speak in terms of the skills or strength of the individual complainant, nor of advantage or disadvantage. The generality of the concepts of strength, stamina and physique, and the use of the plural `competitors' requires the Tribunal to look at the circumstances relevant to playing of the competitive sporting activity generally. It is not permitted for the complainant to point to some limited part of the sporting activity that does not require strength, stamina or physique, and in reliance upon that, split the activity into `bits' for the purpose of avoiding application of the section. The section neither provides for nor permits such a `splitting' process. To allow the process would create a new segregation, namely, one within teams, and there is no reason in the section to think that such an outcome was intended or envisaged by the legislature.

The Tribunal in Robertson did decide that case, which was a strike out application, on the basis of the Complainant being suitable to play in one position on the team, but not others. It is submitted that, being a strike out application, the Tribunal had only to decide the matter on the preliminary basis that it was not unarguable. That is far from a holding that the proposition, upon an ultimate final ruling would be upheld. The submission against the permissibility of `splitting' set out in paragraph 10 above, is reiterated, and it is submitted that on a final hearing such as the present, the ruling in Robertson should not be followed.

It is submitted that all that is required for section 66(1) to be invoked, is that strength, stamina or physique is involved in the playing of the activity. It is apparent that the section is based on the general assumption about differentials of strength stamina and physique which were referred to and accepted by Professor Walkley at transcript p.112.22. If that be so, then it is for the Complainant to prove that none of the three elements is involved in the playing of lawn bowls, and this she has not done. Further, even if the onus in relation to this matter were on the Respondent, contrary to our earlier submission, the evidence is overwhelming from both sides, that at least strength is involved in the playing of lawn bowls, for example, Mr Hanlon at transcript pp. 185 line 16 and 192.19 - 193.13.

In the alternative, it is submitted that the section requires that strength stamina or physique has a bearing on the outcome of the game. What that means in the present case, is that the Complainant must prove to the Tribunal on the balance of probabilities that strength, stamina or physique has no bearing on the outcome of the game.

The Respondent has drawn attention to one shot, the drive, which is said to be produced by the application of strength. The shot is an important tactical shot which may decide the outcome of a game (see Attachment A to Tighe's statement, p.144). The Complainant must prove that strength is not relevant to the production of the drive, and, that the drive shot has no bearing on the outcome of a game of bowls.

It is submitted that the Respondent's evidence raises the exception and the Complainant's evidence does not discharge the onus of excluding its application. Indeed, the evidence as a whole supports its application.

The Complainant's evidence comprises of the observations and anecdotal comments of a number of bowlers and the evidence of Professor Walkley".

31. Ms Hampel submitted that the interpretation of s.66(1) in Robertson's case is correct and that it is the one that should be followed. She submitted Ms McKenzie in that case had pointed out the very vice in the interpretation that had been urged by the respondent. If its interpretation of s.66(1) were correct, it would permit exclusion of women from sports where strength, stamina or physique were relevant to the sporting activity itself, and not to the issue of where there was a relevant difference in the strength, stamina or physique of men and women which made competition uneven or unequal in participation in that particular sport.

32. Counsel submitted that it went without saying that one requires strength in order to do just about any activity and she referred to Professor Walkley's evidence. The question she submitted is not whether there is any strength, stamina or physique requirements in respect of any activity or this particular sport, but rather whether the relative difference in strength, stamina or physique between men and women would make competition uneven. Counsel submitted that to adopt the interpretation contended for by the respondent would be to strip the sub-section of any meaning at all and to apply an interpretation which is wholly inconsistent with the objects of the Act.

33. She further submitted that S66(1) is directed to participating in the competitive sporting activity and not to winning or who is strongest. Thus, she argued, S66(1) does not apply to permit the exclusion of women from a previously male only sporting activity, because as a general proposition, men are stronger and there is a strength requirement in the act. She submitted that s.66(1) only applies where the relative difference between the sexes would make participation uneven or competition unequal.

34. I agree with the respondent's submission that the generality of the concepts of strength, stamina and physique and the use of the plural "competitors" requires one to look at the circumstances relevant to the playing of the competitive sporting activity generally. I do not accept that all that is required for S66(1) to be invoked, is that strength, stamina or physique is involved in the playing of the activity. That interpretation would strip the section of any meaning. Strength, stamina or physique must be relevant to something more than the activity itself. The RVBA submitted that it means it must have a bearing on the outcome of the game. That interpretation implies that it must be relevant to the result. The section however, refers to participation in a competitive sporting activity consistent with Ms Hampel's observations that the section is directed to participation in a competitive sporting activity and not to winning or who is the strongest. I agree with the approach in Robertson's case; and that s.66(1) applies where if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors. That interpretation is consistent with the objectives of the Act to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.

35. I proceed then on the basis that, for the exception in S66(1) to apply, the RVBA must satisfy me that if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors.

36. From the evidence before me, it is clear that the objects of the game are the same for men and women; the types of games played in competition are the same; the scoring is the same and the layout and size of the green is the same. Bowling balls are made with wide or narrow biases, in various sizes and weights and with each size also being available in different weights. Choice of bias, size and weight of bowl is the individual choice of each person whether male or female.

37. There are a range of shots in bowls, of which by far the most commonly used is the draw shot. This is a shot where the bowl moves to a chosen finishing position and finishes near that position. The draw shot is curved, using the bias of the bowl. As I understand it, this is the shot played by the lead player, who might always play in that position in the team.

38. By contrast, the drive shot is an attacking or defensive shot that is used to most effect to trail the jack into the ditch or remove a bowl from the head. It is delivered with the maximum possible pace, in order to overcome the bias and make the bowl go straight. Whilst it can be played at any time during the game, it is a shot that is generally retained for thirds and skips and on very rare occasions the second.

39. The evidence led by the RVBA focussed on the difference in strength between men and women and what impact that had on the production of the drive shot. The respondent led evidence of two tests that were conducted for the purpose of this case.

40. The first was conducted by Messrs Hosford and Meikle for the RVBA. It was a comparative kinematic and muscular film analysis of the lawn bowl drive. In the report, the purpose of the study, formulated in consultation with the RVBA, is expressed to be "to determine gender differences, if any, in the lawn bowls drive across age groups". They were apparently to investigate various parameters in the skill and see if there was a relationship to strength in the drive shot.

41. A number of assumptions were made in the course of the study. First, that all performers bowled to the best of their ability and second that the testing protocols simulated as closely as possible the demands of the drive. The study was conducted at an indoor facility to provide uniform conditions and consistency of bowling surface, weather and lighting conditions.

42. A total of 36 bowlers were invited by the RVBA to participate. It was planned that there would be 3 age groups, each group consisting of 12 bowlers of whom 6 would be elite and 6 sub-elite with equal gender representation. Each bowler would perform 5 sequential repetitions of the drive.

43. Data collected measured angular velocities of the bowling arm, linear velocity and acceleration of the bowling ball, the accuracy of each bowl within 1 m of the jack, the number of skeletal segments used in the performance of the drive and any additional muscular recruitment, the range of motion of segments involved and any addition muscular recruitment and the deviation of the bowling arm and trunk from the respective planes of motion. The video material tendered showed various different parameters and different techniques at either end of the spectrum.

"It is apparent from this study that male bowlers executing the drive shot will have a distinct advantage over female bowlers due to their ability to sum forces of body segments more effectively. This can be attributed to greater muscle bulk and attendant strength, larger ROM, greater propulsive force generated by the lower extremities, the more efficient transferrence (sic) of this force to the bowling arm and the more efficient stabilisation of the body's central axis. In conclusion this study reveals that males perform the drive shot at significantly higher velocities giving them greater potential to break the "Head"."

45. There were a number of issues about the study that emerged in cross-examination.

46. First, Mr Meikle believed 34 persons had formed the basis of the study. According to Mr Hosford only 30 persons had. Apparently one group, the sub-elite 13-34 age group, had not come up to expectations according to Mr Hosford and was removed from the study. Thus, it was completed without that particular comparator.

47. Messrs Hosford and Meikle relied on the RVBA, the respondent in these proceedings, for the recruitment of the participants. The study was conducted without checking what instructions, if any, had been given to the participants beforehand; without any control over the recruitment of the participants; without any control over or knowledge of the bowls they actually used, assuming that they were what the participants usually used and without checking that the participants were in the correct level and age groups. The study was conducted without factoring in what training, if any, the participants had had; the length of time they had been playing; their skill level; the frequency with which they played; whether they had had any coaching or what position they usually played.

48. Whilst each participant executed 5 drive shots, the study only analysed one shot per person which was the shot closest to the jack. We know nothing about the accuracy or otherwise of any of the other shots; whether for instance the drives with the greater velocity actually were more or less accurate than those of lesser velocity.

49. Mr Meikle and Mr Hosford who are experts in the field of structural and applied anatomy and sport bio-mechanics respectively both conceded that women were capable of executing a drive shot. Indeed, their results show that all the women who performed the shots got the bowl to within one metre of the jack, which was the stated discriminator.

50. In cross-examination Mr Meikle agreed that he was not really in a position to draw a conclusion about the force of the drive shot required to break up a head, and that he was simply able to talk about the anatomical difference between men and women.

51. Mr Hosford said that the investigation was into who could release the ball with the greatest velocity in order to have the greatest impact on the jack and the bowls. Whilst the results of the 30 particular bowls examined indicate that more of the men bowled with greater velocity than the women and the study gives anatomical reasons for why that may be so, that was all that was examined. Games were not simulated, nor any other bowls involved. Whilst no one would doubt that the strongest male would bowl with greater velocity than the strongest female, no one suggested that merely bowling with the greatest velocity is what counts. Whilst greater velocity is required for a drive than for a draw shot, the drive shot must be combined with skill and accuracy to be effective. According to the National Bowls Coaching Manual commenting on the speed of delivery of the Drive Shot: "It is the end result that counts and no extra points are added for speed. Therefore always drive within your capabilities and do not forgo accuracy for speed". Overall, I found the results of the study to be of limited assistance.

52. Both witnesses opined that their results would indicate a trend as to what one could generally expect to find. Neither claimed to be an expert in statistics. There was much debate about what type of statistical methods could reliably be employed, with divergent views expressed by Professor Walkley and Mr Lythgo about that. Given the reservations I have raised about the study, any statistical extrapolations are of little assistance.

53. The second test was conducted by Ms Melissa Arkinstall, who is a Master's student studying exercise physiology.

54. She was engaged by Bowls Australia to conduct research into the effect of gender on lawn bowling performance across age and competition levels. She had understood that she was asked to do the study for information for presentation in proceedings. Her research was designed to test the "null hypothesis" that there are no significant differences in performance accuracy between male and female lawn bowlers across age and competition level.

55. She conducted game analysis tests designed to identify trends in play and quantify performance. In those tests the participants chose what shots to play. Performance tests were also conducted where bowlers executed set shots, and with those mean accuracy and velocity were measured over two different lengths.

56. Her results showed males overall to be more accurate than females. Ms Arkinstall concluded that muscular strength has a significant effect on the accuracy of the lawn bowl delivery. The reason she postulates, as I understand it, is that because females have less active muscular mass, they depend more on the lever system to generate force and thus use a greater range of joint motion to achieve the same, leading to a greater potential for error.

57. Putting aside those parts of her report she was in no position to give any expert evidence about, again there were concerns which emerged about a number of matters pertaining to the study that might affect how one might regard her conclusions. These included the recruitment of the participants and what they may or may not have been told about the research and its purpose, which one would imagine might colour how the participants performed. This is of some importance given the views, which apparently emanate from Bowls Australia, expressed in the introductory parts of the report about the benefits of single sex competition. In cross-examination, Ms Arkinstall would not accept that there was a possibility that the results might be skewed. She did not control the selection of the participants and it was not clear that placing them within the respective performance categories, was truly representative, such that like was being compared with like. The sample size was relatively small, and apparently certain results were substituted when a participant subsequently withdrew and again the same concerns about what extrapolations could properly be made from her findings arose, as it had with the Meikle and Hosford material.

58. Ms Arkinstall's reasons for concluding that strength had a significant effect on bowl accuracy were that women engage in a greater range of joint motion than men, to generate the same force. This seems at odds with the Meikle and Hosford material which sought to demonstrate that men were more accurate yet employed a greater range of motion than women in executing the drive shot. Ms Arkinstall's research concentrated upon the relative differences between the sexes and her results were formulated as means and averages. It was not designed specifically to test whether any disparity made competition uneven.

59. To my mind, her results show what one could anticipate, which is that on average men have greater grip strength and velocity than women. Those are the indicators Ms Arkinstall relied on to establish her conclusions about the differences in strength between men and women. It may well be that on the day and with these participants in the context already referred to, the men overall were more accurate. With the reservations I have already expressed about the way the study was conducted and what it was designed to test, I did not find it to be of assistance in satisfying me that disparity in strength between men and women would make competition uneven in the game of lawn bowls. Further confidence in her report was not inspired when a fresh chapter 3 was produced to correct numerous errors in the figures in the text and tables of the report that had been filed.

60. The RVBA called Mr Lachlan Tighe. His statement was tendered, he gave evidence and was cross-examined. He is employed part-time as the National Development Manager of Bowls Australia. Bowls Australia is the national body for men's bowls and the RVBA is one of its affiliated members. He is a registered bowls coach and has played since 1986. His evidence focussed on the game of bowls, its object, the equipment, types of games, the layout of the green and the various shots. His evidence was that bowling skill is a combination of many factors, principally delivery, practice, experience, physical fitness, temperament and innate ball skill. He made no claims related to the relative strength of men and women. Annexed to his statement were certain extracts from the National Bowls Coaching Manual to which my attention was drawn, as I understand to illustrate the relevance of strength and stamina.

61. In those extracts is a diagram illustrating the various components of bowling skill. There is a reference to physical fitness, along with delivery, practice and experience. Under physical fitness there is mention of exercise along with nutrition and rest and as a component of exercise a reference to mobility, strength and stamina. I do not think anyone would doubt that stamina and strength gained through exercise is an important component of physical fitness. That in my view is all that reference represents. Nor do I think the RVBA's case is assisted by the reference in the manual to "speed of delivery" referring to drive shots. It recognises that greater speed is required for a drive shot than a draw shot and emphasises that accuracy should not be foregone for speed.

62. Mr Graeme Hosford gave evidence and was cross-examined. His statement was tendered in evidence. He has been a board member of the RVBA for the past 12 months and has also held the position of chairman of its match committee for that time. He has been a councillor of the RVBA for the past 5 years and in that capacity represents 24 clubs from the western suburbs. He has played bowls for the past 18 years, has played in Division 1 of the Pennant Competition and last season played in Division 2. His statement covered Pennant Competition and various other competitions.

63. He gave evidence of his own observations about the very aggressive and competitive way men's Pennant competition is played and how men tended to use a drive shot more so than women, to the extent that it is a regular feature of men's Pennant. In comparison he stated women bowlers tended to draw rather than drive bowls out; the reason he thinks is that some of the women do not have the strength to drive a bowl in a consistent fashion. He did not believe there is a real difference in bowling action, but that there was a difference in ability to play aggressive shots.

64. It may be that the men have a greater tendency to use the drive shot. He attributes the tendency to lack of strength, yet this does not sit well with what emerged in response to a question from the Tribunal which was that he was well aware of many men who were very poor drivers and who were never called upon to do a drive. Were they poor drivers because they lacked strength? He does not say women cannot and do not drive. His observation that men's pennant is played very aggressively suggests the reason they choose to play the drive shot more so than women may be that it is simply a matter of style of play.

65. Mrs Valmai Lewis, the immediate past president of the Victorian Ladies' Bowling Association (the VLBA) prepared a statement which was tendered in evidence. She gave evidence and was cross-examined.

66. She has played bowls for the past 25 years. She gave evidence about the women's Pennant competition and how it is organised and what other competitions are available.

67. Her statement set out her observations about what she sees is a difference in the way ladies and men generally play bowls, which is that men tend to play a drive shot when the head builds up, whereas ladies will continue to play draw shots. In her opinion men play the drive more often because men tend to be bigger and stronger and strength is a definite advantage in playing the drive shot.

68. Her evidence is not that women do not or cannot drive. It is about the differences in the way men and women generally play bowls and her personal observations of a style of play and choice of shot and her views about why that particular style or choice of shot is used. Whilst men and women's style may be different, Mrs Lewis does not express any views on whether that style, or choice of shot make competition uneven or unequal, such as might assist in establishing that relative strength would make competition unequal.

69. Ms South called a number of witnesses. Ms South, her father Mr David South, and the current club president Mr Dave Sutherland all tendered statements and gave evidence of their views formed through their respective experiences and observations of the game. In summary their views were that lawn bowls is not a sport where strength, stamina or physique is relevant to effectively competing and that women who play with men are neither advantaged nor disadvantaged by being female.

70. Mr David Hanlon tendered a statement gave evidence and was cross-examined. He is an experienced player who competes at the elite level. During the 1999/2000 season he played as a skipper of the Yarraville/Footscray Bowls Club in the premier division team in the Victorian Pennant Competition organised by the RVBA. He has been involved in competition in which both men and women have competed. In his opinion, lawn bowls is essentially a game of skill, technique and concentration and that while a level of fitness is required to be able to sustain the numerous hours of competition that games can extend over, in his opinion strength, stamina and physique of competitors are not generally matters of significant relevance to a person's ability to be competitive in competition. He stated that save for elite women bowlers, women do not drive with the same force as men, but that these days with the narrow bias bowl women tended to use the drive shot more readily. From his own knowledge, he stated that there were women capable of playing strong drive shots. Moreover, in his view it was more common today to see the execution of a controlled drive shot, which is one which requires a reduced amount of force behind it to keep it on a straight line or as straight a line as is necessary to achieve the shot played.

71. He conceded in cross-examination that strength, stamina and physique are relevant to one's bowling ability but he qualified that, saying it depended upon the level of competition at which one played. I do not understand that that concession is a statement about the relative strengths of men and women, any more than it is a reference to the relative strengths etc between one person and another. Nor do I think that what emerged during cross-examination about the drive shot, which was that more strength is required to execute a drive shot than a draw shot, that a minimum assessment of force is necessary to drive the bowl straight and that the force one uses depends on the goal one sets which was evidence referred to in the RVBA's submissions as supporting its case, was anything more than affirming what is obvious. That evidence does not detract from his evidence that women were capable of playing strong drive shots. Overall, I found Mr Hanlon to be a well informed and balanced witness with a wide range of experience at the top level. I was impressed with his extensive knowledge of the game and I accepted his evidence which in no way suggested that the relative strength of men and women would make competition uneven.

72. Dr Jeff Walkley, Associate Professor Department of Human Biology and Movement Science at RMIT University tendered a statement. He gave evidence and was cross-examined. In his opinion, lawn bowls is not a physically demanding sport. He states that the level of strength, endurance and stature, although different among adults, would not unfairly advantage or disadvantage one gender with regards to the sport of lawn bowls.

73. In his opinion lawn bowls is not a competitive sporting activity in which strength, stamina or physique of competitors is relevant. He believed it to be a gender neutral sport, which required one simply to have a threshold of strength to participate. He expressed this opinion based on his experience and knowledge in the area, and with reference to an article in the Journal of Sports Sciences on psychological and psychomotor skills associated with prowess at ten-pin bowling. His knowledge was essentially as an observer of the game and in the context of his academic experience. In that context and given that he saw the issue of relevance of strength as a need for a threshold level of strength only, I simply observe that his view supports and adds weight to those of Miss South, Mr South, Mr Sutherland and Mr Hanlon.

74. There was no evidence before me to suggest that women cannot or do not use the drive shot. In so far as there is evidence that men employ the drive shot, which does require more strength than the draw shot, more often than women, the RVBA has not satisfied me that this is related to the difference in strength between men and women or that if it is related to differences in strength, that employing the drive makes competition uneven. I am not satisfied that the exception in S.66(1) applies. In those circumstances I find that Miss South's complaint of discrimination is proven.

75. S.136 of the Act sets out what the Tribunal may order. It states:

After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may-

(a) find the complaint or any part of it proven and make any one or more of the following orders-

(i) an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;

(ii) an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.

76. The RVBA submitted that if I found that the exception in s. 66(1) does not apply, I should exercise the discretion in s.136 and refuse the remedies sought by Miss South. Under s. 136(b) the Tribunal may find the complaint proven but decline to take any further action on the matter. The RVBA further submitted that if I were minded to make orders, that they should be confined to Miss South's admission into the pennant competition.

77. It was submitted that the move to overturn the existing situation, which affects tens of thousands of bowlers comes from one woman and attention was drawn to the fact that no other female bowler had come forward to give evidence in support, submitting that this gave rise to a Jones v Dunkel inference.

78. Ms Hampel submitted that if Miss South has made out her case, the RVBA should be ordered to refrain from committing any further contravention of the Act, to register Miss South as an affiliated member and to alter its constitution so that it does not to contravene the Act by discriminating against members of affiliated clubs on the basis of their sex.

79. She submitted that what was put in relation to discretionary relief is simply not supportable. She referred to what she described was at best anecdotal or opinion evidence of those who have an interest in maintaining the status quo of segregation in the sport, submitting that such evidence could not provide any satisfactory foundation for limiting the relief sought.

80. Counsel submitted that there was in fact evidence of a demand to be able to play in the pennant competition from other women in the Club, and submitted that it was unreasonable and unrealistic to reverse the onus to suggest that Miss South should have been required to call other women in order to prove a demand. She submitted that that was not the issue; it was whether the rules discriminate against Miss South and if they do, they have to be changed.

81. The RVBA referred to the evidence of Mrs Lewis and Mr Hosken. As the Immediate Past President of the VLBA, Mrs Lewis was not aware of any demand from women wanting to compete in mixed pennant. She was aware that among the older group of players, there is no desire to change the way pennant competition is administered. She went on to say that many VLBA members did not want to play in competitions that are open to men and that if they are made to do so, she was concerned that they will withdraw from the sport. Mr Hosken also expressed his concerns if women were allowed to play in the men's pennant and vice versa.

82. Mrs Lewis and Mr Hosken are expressing their own apprehensions about the ramifications of potential orders of the Tribunal. Mrs Lewis' statement does not indicate that she speaks on behalf of the VLBA. This is not an application that affects the VLBA pennant competition and it may well be that there would be entirely different considerations involved with that. Those matters are not before me.

83. Mr Hosken, as I understand it, was expressing his own opinion about what might happen. He did not produce any evidence of any formal authorisation to express that opinion on the RVBA's behalf, nor any petition or survey for example that might have demonstrated that vast numbers of players would drop out of competition were women permitted to compete.

84. I am not satisfied that these mere apprehensions are such as to persuade me that having found the complaint proven, I should decline to take any further action in the matter.

85. The RVBA Competition rules provide that Metropolitan Pennant Competition shall only be open to a side or sides from affiliated clubs. Clause 5(2) of the RVBA's Constitution, in setting down the requirements for a Club to be affiliated with the RVBA specifies that a Club must have not less that 16 members who are eligible to be affiliated members. Clause 3(1)(b)(i) of the Constitution defines an affiliated member as meaning a male member of the affiliated club.

86. The loss suffered by Miss South is the loss of opportunity to be selected by her Club to be a member of its RVBA pennant competition team and to play in the pennant competition. To redress this loss, which arises from the contravention, and to permit her to play in the RVBA pennant competition, since her qualification to play is dependent upon being an affiliated member of an affiliated club, the rule defining affiliated membership should be amended forthwith to delete the requirement that only males can be affiliated members. Miss South can then apply to become an affiliated member. Although she had applied for affiliated membership and it was the rejection of that application that gave rise to this complaint, at the time she was not eligible because of the meaning of affiliated member and the fee was returned. In my view she needs to reapply and therefore I decline the request that there be an order that she be registered as an affiliated member.

87. I decline to make the further order sought that the RVBA refrain from committing any further contraventions of the Act, because it anticipates future contravention which is speculative.

Anti-Discrimination Act 1992(NT)

Opportunity Act 1995

Discrimination Act 1984

South Australian Sex Discrimination Act 1975

South Australian Equal Opportunity Act 1994

Opportunity Act 1984

Human Rights Act 1993

South v RVBA [ac al 131200] [2001] VCAT 207

At a glance

Court

Decision date

Before

Source

Judgment (135 paragraphs)

South v RVBA [ac al 131200] [2001] VCAT 207 (28 February 2001)

Parties

Legislation Cited (7)