I find that the application of the provisions of section 66(1) to Australian Rules football is not substantially different than its application to sports such as softball or tennis. It is true that Australian Rules football involves physical contact, but a distinction made on this attribute for 12 and 13 year olds would be more the result of stereotyping than the criteria in section 66(1) of the Act. In large part my conclusions are consistent with Jernakoff, particularly in relation to those under 13 years. In Jernakoff the tribunal grouped those aged 13 years to aged 16 years and determined that, for persons of these ages, the Softball Association could exclude girls. If the tribunal had considered the ages 13 to 16, not as a group, but as four separate years, it may have come to a different conclusion in relation to those aged 13 years.

80 In the Somers[43] case Mr Wolters concluded that a netball competition between both sexes at around age 12 would be uneven because of the disparity between the strength of boys and girls. Ironically, this conclusion was based upon evidence given by Dr Walkley. The tribunal stated:

The Tribunal accepts Dr Walkley's evidence that there are clear disparities in the motor skills of boys and girls, even from an early age, which was thought to be caused by the greater availability of role models for boys and fewer family inducements to participate in sport, and that these disparities can give boys an advantage over girls in sports such as netball.

It also accepts his evidence that motor skills are not of themselves related to strength. They go more to the speed, agility, dexterity, readiness and nimbleness of the person, and, although they require training of muscles and the coordination of muscle groups, are not directly linked to the relative strength of the muscle or to physical `strength' or `physique' in the meaning of those words cited above.

Nevertheless, boys at the ages in question in this matter do not only have motor skill ability of a higher level than girls; they were also noted in studies cited by Dr Walkley as having, at the ages of 11 and 12, considerably and measurably greater abdominal, hip, shoulder, arm and leg strength, which, whether combined with higher order motor skills or taken by themselves, give boys advantages over girls in certain of the moves that are fundamental to netball play.

It can be said therefore, that a competition between both sexes at around age 12 would be uneven because of a disparity between the strength of boys and girls in some fundamental regards. This would trigger one of the grounds in section 66(1), with the result that the respondents could be said to have a valid ground for excluding boys from competition in `13 and under' girls only games.[44]

81 In my view some of these cases have failed to give sufficient emphasis to the very significant variations in strength, stamina and physique within the sexes for a particular age group, particularly in the 12 to 14 age groups. It can be misleading to concentrate on mean data, as it can create a false impression about boys or girls of a particular age group. It is better to also take into account the variation within sexes and to then consider the variation between sexes (as shown by the standard deviations) in that context.

82 I find that it was unlawful for the football associations to exclude girls from the MSJFL Australian Rules competition for those under 14 on 1 January 2003. But I also find that it was lawful for the football associations to exclude girls from the MSJFL Australian Rules competition for those under 15 on 1 January 2003. I make these findings because the relative differences between the strength, stamina and physique of boys and girls has not been shown to be sufficiently significant to be relevant in the participation in an Australian Rules football competition for under 14 year olds. But the relative differences have been shown to be sufficiently significant to be relevant to participation in an Australian Rules football competition for under 15 year olds.

83 I wish to make it clear that I am not giving my endorsement to a rule which excludes girls from under 15 football. Rather my decision is that it is lawful for a football association to adopt and apply such a rule. For my part, the decision as to whether girls play under 15 or, even, under 16 football should be left to the girls themselves. Not only is this consistent with notions of free choice, but also it can be achieved without disadvantaging boys. The issue of girls playing football with boys does not have a direct parallel in boys playing netball with girls. In the former case allowing girls to play will not provide boys with unfair competition, thereby inhibiting the participation of boys. But the converse is true in the case of boys playing netball with girls.

84 There is another factor which I believe is relevant. As I have illustrated by reference to the Grimmer study, boys over 13 who play football are typically stronger and fitter than boys of that age generally. There is an element of self selection at work. When it comes to girls playing Australian Rules football the same process of self selection is likely to occur; but to an even greater degree. This means that the girls who will typically wish to play Australian Rules football in the under 15 and under 16 competitions will be those with a physique, strength or stamina at the upper end of the range for girls of that age. They are also likely to be relatively highly skilled in the playing of football. A wise policy will be one which takes the self selection factor into account.

85 There is also a strong case for sporting associations to advance equal opportunity by allowing smaller or physically weaker players to choose to play in a younger age group. Such an approach is consistent with all the expert evidence given in this case. It reflects the fact that there is a huge variation in physique within each sex at a particular age. It also reflects the fact that, especially during the period of 10 to 16 years, people do not grow at the same rate. In some New South Wales schools there is a rule that a player can weigh down to a younger age group in Rugby if they are more than one standard deviation below the mean for their age group. I have no doubt that this sort of rule promotes equal opportunity. In Australian Rules football, the rule might be that a player can choose to play in a younger age group for the season if the player's height and weight are more than one standard deviation below the means for their age group at a fixed date at the commencement of the season. In under 13 and under 14 competitions the rule might be relaxed in relation to the weight of girls to better reflect relative lean body mass.

86 I am confident that there will be no adverse implications if girls are permitted to play Australian Rules football with boys in under 14 competitions and below. Boys will not be disadvantaged. And, typically, the girls who choose to play will be the stronger girls or girls with higher endurance or skills than the mean for girls.

87 However a factor which causes me concern is that the decision in this case, standing alone, may also mean that boys cannot be lawfully excluded from under 13 and under 14 competitions in sports organised for girls, such as netball. 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.

88 There is provision in the Act for the tribunal to grant an exemption from any of the provisions of the Act in relation to a class of persons, including granting the exemption on its own initiative. Such an exemption remains in force for a period, not exceeding three years, as specified in the notice of exemption. The exemption may be granted from any of the provisions of the Act in any circumstance specified by the tribunal.[45] The tribunal has decided to invite written submissions as to whether it should exercise this power to grant an exemption from section 65 of the Act in relation to the exclusion of males from participating in a competitive sporting activity organised for persons under 14 years (that is, for 13 year olds). At this stage the tribunal does not contemplate that such an exemption would apply to a competitive sporting activity organised for persons under 13 years (12 year olds), but it will receive submissions on this. The reason for considering this matter is that the grant of such an exemption may be desirable to promote equal opportunity as envisaged by the purposes of the Act; and to encourage female participation and competition in sport. However before deciding this question it is appropriate that the parties to this case be given an opportunity to make submissions in writing. The tribunal will advertise the matter and will also consider any written submission made by a member of the public, including any sporting association. All written submissions must be made before 26 March 2004. A decision on the exemption will be made shortly after that date.

89 The complaints by Penny Cula-Reid and Emily Stanyer, which relate to the under 15 competition, have been found not proved and will be dismissed.

90 The complaint by Helen Taylor, which relates to the under 14 competition, has been found proved. Section 136 of the Act sets out possible orders the tribunal may make in such circumstances. However the football associations would not be acting unlawfully if they excluded girls from the under 15 competition in 2004. Thus it is inappropriate to make an order that the respondents refrain from committing any further contravention of the Act in relation to Helen Taylor. I could order some monetary or other compensation[46], but I regard this as inappropriate having regard to the subject matter, the fact that the breach was in relation to a class of persons rather than Helen Taylor as an individual and the fact that this case was obviously brought as a test case. Thus, notwithstanding that the complaint by Helen Taylor is proved, I decline to take any further action in the matter.

91 Whether the three complainants can play in the coming season rests with the football associations. It is lawful for the football associations to exclude them from the under 15 and under 16 competitions. It is equally lawful for the associations to allow them to play.

[1] The scheme of the Act is that a complaint must first be made to the Equal Opportunity Commission. If the Commission cannot resolve the complaint by conciliation, the complaint is referred to the tribunal. (See, generally, Part 7 of the Act.)

[2] Smith v Football Victoria Ltd [2003] VCAT 936; 20 VAR 119.

[6] The expression competitive sporting activity is defined in section 64 of the Act to include any exhibition or demonstration of a sport, but to exclude coaching, umpiring, administration and the non-competitive practice of the sport. It is also to be noted that section 65 is broader in operation than section 66(1) as it extends to non-competitive sporting activity.

[7] The expression gender identity, which is defined in section 4 of the Act to mean, essentially, the identification on a bona fide basis as a member of a particular sex, was introduced into the Act on 9 October 2000. It is implausible that the parliament intended the introduction of this provision to alter the meaning of section 66(1) of the Act, as it stood before the amendment, in relation to persons of a particular sex who identified as being of that sex. Hence section 66(1) can be analysed without the need to introduce the complexities that the concept of gender identity may have introduced.

[10] [1996] VADT 16 (McKenzie P). See also Re Hall and Victorian Amateur Football Association (1999) 15 VAR 183, at 185 (per Kellam J, McKenzie DP and Scholes).

[11] [1998] 4 VR 872, at 877 to 878.

[12] [1991] VicRp 64; [1991] 2 VR 235.

[14] Which is 1 January 2003 in the case of the present complaints.

[15] I take strength to mean the ability to exert a force using muscle; stamina to mean endurance or fitness; and physique to be the structure of a person's body.

[16] The Macquarie Dictionary (Third Edition) defines the word to mean bearing upon or connected with the matter in hand; to the purpose; pertinent.

[17] [1998] VADT 112. The quotation is from the eighth page.

[18] [2001] VCAT 207. The quotation is from paragraph 34.

[19] (1998) 14 VAR 23.

[20] [2001] FCA 1740; (2002) EOC 93-185.

[21] (1998) 194 CLR 355, at 384, per McHugh, Gummow, Kirby and Hayne JJ.

[22] See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at 15 (per Brennan CJ and McHugh J), 22-23 (per Dawson and Gaudron JJ) and 58-59 (per Kirby J).

[24] Section 48 Equal Opportunity Act 1984 (SA); section 35(1) Equal Opportunity Act 1984 (WA); section 41(1) Discrimination Act 1991 (ACT); section 49(1) Human Rights Act 1993 (NZ).

[25]Section 38 Anti-Discrimination Act 1977 (NSW); section 29 Anti-Discrimination Act 1998 (Tas).

[26] Section 111 Anti-Discrimination Act 1991 (Qld); section 56 Anti-Discrimination Act 1992 (NT).

[27] I was provided with a booklet The Laws of Australian Football as an exhibit. I was reminded of a case before Hedigan J of the Supreme Court of Victoria when the same document was tendered in evidence and he commented: So this is the book that no one has read, but everyone knows what's in it.

[28] Melbourne legend, Jim Stynes, a recruit from Ireland, once commented that the playing time for an Australian Rules match, which is longer than all other football codes, was very demanding.

[29] The reasons why this rule is extraordinary are articulated in my reasons for granting an interim injunction in this matter.

[31] For example, evidence given on behalf of the complainants by Dr Andrew McIntosh that there is no evidence to demonstrate that injury rates are affected by size mismatches. Although Dr Walkley thought that boys are more likely to cause injuries to other players than girls, because they are more aggressive and can hit harder, they were just as likely to cause these injuries to other boys.

[32] Karen Grimmer and Jenny Williams, 'An investigation of the rate, type and nature of injuries associated with modified Australian Rules Football', (2000) Centre for Allied Health Research, University of South Australia.

[34] For any international readers, I note that Australian Rules football is somewhat popular in Adelaide.

[35] This does not extend to grossly illegal and unfair conduct, such as striking another player behind the play.

[36] I should note that I do not agree with the comment on the 13.00 to 13.99 year old graph that about 25% of boys are significantly taller and heavier than the girls. Rather the graph shows that the range of heights and weights for boys is greater than for girls, at both the lower and higher ends of the spectrum.

[37] By way of contrast, in his book Aussierobics, published in 1977, Perce Russo quotes a survey he conducted of children in Sydney which showed remarkable differences in size as they passed through adolescence. He argued that team selection should not depend totally upon chronological age. He added:

"Another interesting result from the survey was that girls up to the age of 14 were stronger than boys, in arm strength and up to the age of 16, in leg strength. Maybe it would be worthwhile to include some girls in younger-aged football teams. This may, however, embarrass some of the members of the `stronger' sex." (at page 120.)

[38] (1990) EOC 92-278.

[40] (1993) 23 CHRR D/397.

[41] (1999) EOC 92-981.

[43] (1998) 14 VAR 235.

[44] (1998) 14 VAR 235, at 241.

[46] Pursuant to either section 136(a)(ii) or (iii) of the Act.