Victorian Civil and Administrative Tribunal|2008-12-24|Before: Morris J

The Applicant must monitor the consequences of the granting of this exemption and, by 30 September in each of the years 2009, 2010 and 2011, report in writing on the results of this monitoring to the Victorian Equal Opportunity & Human Rights Commission.

The Applicant must provide suitable opportunities for boys aged 12 (but under 13) and aged 13 (but under 14) to participate in netball competitions.

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

This exemption is granted for a period of approximately 3 years. The period commences when the exemption is published in the Government Gazette and ends on 1 December 2011. The exemption is subject to conditions.

In October 2008 the Applicant (Netball Victoria) applied to VCAT for exemption from s65 of the Equal Opportunity Act 1995 (the 'EO Act') to enable it and its members to conduct girls only competitions, where those competitions are organised for girls aged 12 but under 13, or for girls aged 13 but under 14. Justice Morris (as he then was), the then President of VCAT, granted in September 2005 a similar exemption to Netball Victoria. That exemption expired on 12 September 2008.
I directed that notice of this application be published on Netball Victoria's website. That notice invited submissions from the public on the proposal. I directed that a copy of the application be sent to the Victorian Equal Opportunity & Human Rights Commission (the 'Commission').
Neither VCAT nor Netball Victoria has received any submissions opposing the application. The Commission has not made submissions o the application.
I first discuss the law. I then make findings on the material before me. Finally, I consider whether the exemption should be granted, particularly in the context of the Victorian Charter of Human Rights & Responsibilities Act 2006 (the 'Charter').

Section 83 of the EO Act gives the Tribunal broad discretion to grant exemptions from the provisions of the Act to persons or classes of persons, activities or classes of activities, or in specified circumstances. The section does not limit the discretion given to the Tribunal. In re BAE Systems (Australia) Ltd[1] I said this. One must first ask: Is there possible prohibited discrimination involved in the proposal? If so, one must then weigh the interests served by the exemption against the important interests served by the prohibition in the EO Act - namely, protection from discrimination and redress for its victims. The objectives, prohibitions and general purposes of the EO Act must be borne in mind. Those objectives include promoting the acceptance and recognition of everyone's right to equality of opportunity and eliminating, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes. I must also bear in mind that the effect of granting an exemption is to take the exempt conduct out of the prohibitions in the Act.
The Act's prohibitions, though very important, are not at large. They do not apply to every attribute or every area of activity. The Act contains express exceptions from its prohibitions. The question must be whether the interests served by the exemption are powerful enough to warrant taking the relevant conduct out of the prohibitions of the Act. Examples of interests that might be powerful to do this might be what is commonly called positive discrimination - positive measures to address disadvantage or discrimination. The Act's prohibitions should not be lightly overridden. In the BAE case, I doubted whether commercial advantage or disadvantage, alone, would be a powerful enough factor to justify removing conduct from the Act's prohibitions. A relevant matter is also whether there is a less restrictive way in which the purpose of the exemption might be achieved.
Netball Victoria's seeks exemption from s65 of the EO Act. That section prohibits a person from discriminating against another person by refusing or failing to select the other person in a sporting team, or by excluding the other person from participating in a sporting activity. It is clear from s64 that sporting activity means more than competitive sporting activity. It expressly includes a game or pastime. The section also defines sporting activity to include coaching, umpiring, refereeing, or participating in the administration of a sporting activity.
Because one of Netball Victoria's submissions concerns s66 of the EO Act, I mention it here. Section 66(1) provides that:

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

Section 66(3) states that the exception in s66(1) does not apply to a sporting activity for children aged under 12 years. Section 64 defines 'competitive sporting activity' to include an exhibition or demonstration of a sport, but to exclude coaching, umpiring, refereeing, participating in the administration of a sporting activity, or the non-competitive practice of a sport. I say more about s66 later.

In Taylor v Moorabbin Saints Junior Football League & Anor[2] Justice Morris, President of the Tribunal (as he then was) in the course of considering a complaint by three girls against their exclusion from an Australian Rules football competition, extensively examined s66 of the EO Act in the light of the history of the legislation and of other Australian anti-discrimination legislation, and of relevant case law. Although his decision strictly applies only to the complaints before him, I follow his general approach. His reasons deal in some detail, not only with Australian Rules football, but with sports like netball.
He interpreted s66(1) in this way. The nature of the sport and the age of the competitors must be taken into account. The words, 'a competitive sporting activity of which the strength, stamina or physique of competitors is relevant' mean (in the context of excluding girls from a competitive sporting activity) that there is a difference in the relative strength, stamina and physique as between boys and girls (each looked at as a class and not as individuals), which is significant enough to be relevant (that is, to bear on) the relative ability of one sex to participate or compete effectively in the sport against the other sex. He found that the difference in strength, stamina and physique between boys and girls under the age of 14 was not significant enough to be relevant in the sense I have described. But he found that the difference between boys and girls aged 14 and over was relevant in this sense. Accordingly, s66(1) did not apply to boys and girls under age 14, but it applied to boys and girls who were aged 14 or over.
Justice Morris measured the relative strength, stamina and physique statistically. He used the measure of lean body mass of boys and girls, at a particular relevant age. To determine lean body mass, he used their mean weight at the given age, adjusted slightly upwards in the case of girls. In his decision, he recognises that this is a rough and ready way of measuring lean body mass, and it is not clear from his decision why he adjusted the weight of girls upwards to better reflect their lean body mass. However, it is also clear from the decision that there seemed at that time to be no better way of calculating lean body mass. He said that s66(1) was not confined to one sex (for example, the exclusion of girls from a boys sport) but could apply equally to the exclusion of either sex. It should not be read as if it dealt with exclusions which cause disadvantage to one sex. He also recognised that, as well as there being differences in the lean body mass of girls and boys at particular ages, there were also significant differences between people of the one sex in a particular age group which had a bearing on their ability to compete in sport.
In looking at whether a difference between the lean body mass of girls and boys at a particular age was significant for the purposes of s66(1) he used the method of standard deviations. He notes that, for a data set with normal distribution, 68% of the relevant population are within 1 standard deviation of the mean; 95% are with 2 standard deviations of the mean, and that 99% are within 3 standard deviations of the mean. He found that the lean body mass of boys and girls begins to become different at about age 13, and that by age 15 (or 14 ½ ) the difference is more than 1 standard deviation. He found that a difference of 1 standard deviation or more was significant enough to be relevant for the purposes of s66(1). That difference existed in boys and girls aged 14 or over, but not in boys and girls below that.
In Sommers v Mountain District Football Association[3], in dismissing a complaint by a boy excluded from a girls' netball team for those aged 12, the Tribunal held at s66(1) permitted that conduct. However, its approach was different from and, to my mind, inconsistent with the approach in Taylor. First, the evidence was different, and the evidence in the Taylor case is much more recent. Second, although the Tribunal based its decision in part on the different body composition (that is, strength or physique) of boys and girls, it also based its decision on the relatively greater skill of boys to girls. It did this while recognising that skill was not necessarily related to stamina or strength. Third, the Tribunal looked, not so much at the relevance of the relative strength, stamina and physique of boys and girls, but to whether the netball competition would be uneven if boys and girls played together.
In the Taylor case, Morris J pointed out that, unlike Australian Rules football, allowing boys to play sports such as netball might inhibit the participation of girls in that sport. He said that his decision might mean that boys could not lawfully be excluded from under 13 years of age and under 14 years of age competitions in sports such as netball, and that this potentially might discourage girls from playing that sport. This, he thought, would be undesirable. He invited submissions from bodies which controlled sports such as netball as to whether exemptions should be granted to enable girls only competitions in those sports for girls aged under 14. His decision indicates that he did not then contemplate that there might be an exemption for girls only competitions for girls aged 12.
Netball Victoria took up the invitation and made submissions about the matter. As a result, Morris J granted an exemption to Netball Victoria for girls only competitions for those aged 12 and those aged 13.[4] He took the view that the prohibitions in s65 of the EO Act might operate to discriminate against girls aged 12 and 13. Boys, being generally slightly stronger than girls at this age, and being generally more skilful and more competitive, would (if included in competition with girls) tend to dominate play and discourage girls from participating. The exemption was subject to conditions requiring the consequences of the exemption to be monitored, and the provision of suitable opportunity for boys aged 12 and 13 to play netball.

I have before me an affidavit by Netball Victoria's chief executive officer, Ms Crow. This affidavit exhibits many documents, including Netball Victoria's policy, research material and extracts from the material put before the Tribunal by Netball Victoria in support of the granting of the September 2005 exemption. My findings are these.
Netball Victoria manages and develops the sport of netball in Victoria. Its members include individual netball players, and clubs and associations which run netball competitions throughout Victoria, both in metropolitan and rural and regional areas. In 2007, Netball Victoria had 242 associations/club members, and 105,000 individual play members. Throughout Australia there are approximately 350,000 netball players. Sixty percent of Netball Victoria's members come from rural and regional Victoria.
Netball Victoria itself organises some competitions such as championship tournaments. However, the bulk of Victorian netball competitions are organised by its association/club members. All of its members agree to be bound by its rules and policies.
Currently, Netball Victoria and its association/club members conduct a variety of netball competitions for a variety of age groups. Competitions for children aged between 5 and 7 are played with modified rules. These include a lighter ball, a lower goal ring, and players being rotated through positions. At these ages, the element of fun and skill development is emphasised rather than competition. Boys and girls participate together until and including age 11. After this age, the large majority of competitions run by Netball Victoria and its members are for girls only. However, not all are. Some are for boys only, and some are mixed competitions for boys and girls together.
In 2007, the Melbourne East Netball Association (in conjunction with Netball Victoria) introduced a competition specially designed to appeal to boys called 'Fast and Furious'. This competition is growing in popularity, and other associations are interested in following this model.
Some of the mixed competitions (for boys and girls together) are played under modified rules. These limit the number of boys that can be on the court at any one time or provide that each boy on the court can only play within a restricted area of the court. These rules are designed to ensure that boys do not dominate the play or disadvantage the participation of girls in the mixed teams.
Mixed boys and girls competitions or boys only competitions are not conducted by all netball clubs/associations in Victoria. Netball competitions are primarily organised by volunteers, and the association has a lack of resources. Generally speaking, boys only or mixed competitions are conducted where there is a clear demand for these.
The number of boys who play netball (compared with girls) is relatively small. In 2007, at the age 12 and 13 levels, of 15,942 children registered with Netball Victoria to play in netball competitions, 343 (or just over 2%) were boys. This compares with approximately 5% at these age levels in 2003. Research shows that some of the reasons for this limited participation in netball by boys is what boys see as 'stigma' in playing a game of netball, and because it was only one of many choices available to boys in competitive sport.
Netball is a ball game. The ball weighs between 400 - 450 grams. It is a team game. Each team can consist of up to 12 members, with 7 of these on each team permitted to be on the court at any one time. It is a competitive game. The team which scores the highest number of goals wins. It requires skills of throwing, catching and passing the ball by hand. It requires footwork skills, because of the need to run, dodge, turn and jump to catch the ball. It requires stamina or endurance. Games last for an hour, consisting of 4 x 15 minute quarters. Junior competitions are shorter, lasting for 40 minutes, consisting for 4 x 10 minute quarters. It is a limited contact sport. Its rules penalise a player who comes into contact with an opponent so as to interfere with that opponent, who intimidates an opponent, or who obstructs an opponent who has the ball. In this game, then, strength, stamina, dexterity, coordination, fitness, agility and speed, and hand and foot skills are relevant. Balance is also important - not only in moving about the court and passing and throwing the ball, but so that a player can continue to move and run even when contact from an opponent occurs.
I have research material before me which shows that the majority of girl netball players in Victoria in the 12 and 13 age group prefer a girls only competition. Their main reason is that they feel more comfortable playing with other girls, and find the more aggressive style generally used by boys intimidating.
Research shows that the attitudes of boys and girls to sport vary. Boys tend to emphasise the competitive or 'hero' aspects of sport and emphasise winning. Girls tend to emphasise fun, enjoyment and the social dimension of sport. They tend to be less confident in their skills than boys.
The research emphasises the importance of physical activity for both boys and girls. It indicates that those who are physically active as children tend to continue so into adult life. Participation in team sports not only increases fitness, but also enhances socialisation - and this 'social connectedness' has been found to be a factor in reducing the risk of depression. A New South Wales study completed in 2007 shows that boys in Year 6 at school (aged 11) have an aerobic muscular strength comparable to or greater than girls 2 years older than this. Boys tend to achieve mastery of fundamental motor skills earlier than girls. The percentage of skill mastery in boys at age 11 is comparable to or greater than that of girls aged 13. Six percent more girls than boys drop out of sport by age 12.
Obesity levels in the community are increasing. From 1980 to 2000, the obesity levels in adult women increased from 8% to 21.7%, compared with an increase in obesity levels in mean from 9% to 19%. Research in 2002 showed that 5% of children were obese and 14% overweight.
Although mean lean body mass in boys and girls aged 12 and 13 differs by less than 1 standard deviation, there is nevertheless a difference. Twenty five percent of boys are heavier and taller than the mean height and weight of girls of those ages. The hand grip strength of boys is greater than that of girls in those ages.
I am satisfied that Netball Victoria has complied with the conditions to which the September 2005 exemption was subject. It has supported its member clubs and associations who wish to run mixed girls and boys competitions or mixed competitions with modified rules. It has supported the introduction by one club of a 'Fast and Furious' competition for boys. It has conducted research as to whether this exemption is still necessary.

Leaving the Charter issue to one side, I am satisfied that it should be. The proposal involves possible prohibited sex discrimination.
Netball Victoria submits that s66(1) applies to what it wants to do. If this were the case, I would not grant the exemption but would instead refuse the application for exemption on the basis that the proposed conduct was, by s66(1), already taken out of the prohibitions of the EO Act. But I think that s66(1) does not so clearly apply that I should refuse this exemption application. I have already mentioned some difficulties with the decision in the Sommers case which, in my view, cast doubt on its general application. I prefer the approach taken in the Taylor case, a case which was based on more substantial and recent evidence. That approach indicates that the difference, at ages 12 and 13, between the strength, stamina and physique of boys as a class and girls as a class (expressed in terms of mean lean body mass) is not sufficiently different to be relevant in the sense used in s66(1). Taking the approach in the Taylor case, and on the evidence before me, I am not convinced that s66(1) clearly applies.
The evidence before me is that, at ages 12 and 13, boys have slightly more aerobic strength than girls and somewhat greater physical fitness. These factors would give boys a significant competitive advantage over girls in netball - a sport in which these factors are vitally important. Speaking generally, it is likely that, if there were only mixed competition at ages 12 and 13 in netball, boys would be the stronger and more effective competitors and would tend to dominate the play, to the disadvantage of girls. Girls, particularly those with less self confidence, fitness and skill in netball, would be likely to be disadvantaged because they could compete less effectively, and would be likely to be discouraged from continuing in the sport. There is clear evidence that, at the ages of 12 and 13, girls tend to be less physically active than boys. There is clear evidence of the advantages to health that come from physical activity, and of the advantages to fitness and socialisation that come through team sports. Girls who are discouraged from continuing to play netball are likely to lose these advantages.
The protection of health is already an interest served by exception provisions in the EO Act, although those provisions (s80) do not directly apply here. Another interest served by the EO Act is the provision of special services, benefits or facilities to redress disadvantage suffered by those with an attribute in specified areas (although the relevant provision, s82, is not directly applicable here).
Ultimately, what this proposal seeks to do is to ensure that girls are not discouraged from continuing to play a competitive sport because they are matched with boys against whom they are at a serious competitive disadvantage. In this way, the exemption seeks to give girls equality of opportunity to participate and compete effectively in netball - an aim consistent with that objective of the EO Act which is to promote the recognition and acceptance of equality of opportunity.
Weighing the interests served by this exemption against the important interests served by the prohibitions in the EO Act, and taking the scheme and objectives of that Act into account, I am satisfied that (except for one issue) it is appropriate to grant the exemption. I would impose the same conditions on the exemption as those in the September 2005 exemption. However, I would change the first condition slightly and require that annual reports on the consequences of the operation of the exemption be made to the Commission. On the renewal of this exemption the Tribunal may, among other factors, take into account the extent to which these conditions have been complied with. The second condition requires Netball Victoria to continue to provide to boys aged 12 and 13 opportunities to play competitive netball. This condition minimises any disadvantage that boys may suffer as a result of the granting of the exemption.

Netball Victoria made brief submissions that the granting of the exemption would be consistent with the Charter. The Commission has not made any submissions on the application of the Charter.
I take a similar approach to the Charter issue as was taken in Royal Victoria Bowls Association Inc[5].
Section 32(1) of the Charter requires that, as 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. Section 38(1) 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.
Section 83 of the EO Act gives a broad discretion which must be read in the light of that Act as a whole and in the light of the Charter. This means that the discretion to grant exemptions must be exercised in a way consistent with human rights. If VCAT were a public authority to which s38 of the Charter applies, the obligation would be the same. Because of this, it is unnecessary for me to decide whether VCAT is a public authority for Charter purposes.
I first ask: What rights under the Charter appear to be engaged? I then ask: Does the exemption represent a reasonable limit on those rights as can be demonstrably justified in a free and democratic society, based on human dignity, equality and freedom, having regard to the factors specified in s7(2) of the Charter? These factors are all relevant factors including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose and any less restrictive means of achieving the purpose which the limitation seeks to achieve.
In my view, the human rights which appear to be engaged are the right to enjoy human rights without discrimination, equality before the law, equal protection of the law without discrimination, and equal and effective protection against discrimination (s8(2) and (3)).
Does the exemption place a reasonable limit on these rights? In my view, it does. It is restricted to people aged 12 and 13. Its purpose is to prevent girls being disadvantaged by being able to choose only to play in mixed competition - a competition in which they would suffer a competitive disadvantage - and also being discouraged from leaving the sport. The nature and purpose of the limitations are as narrow as possible, and the conditions ensure that boys are not disadvantaged also. The proposal is not for commercial advantage and is not an arbitrary measure.

Although I have granted this exemption, I need to say something about its future renewal. It should not be assumed that the exemption will be automatically renewed everlastingly. Current research will need to be presented on each renewal application to show that the basis of the exemption still exists. Research about relative differences in strength, stamina and physique between boys and girls is still limited, and new research may alter the situation.
I note that the exemption permits, but does not require, the running of girls only netball competitions for people aged 12 and 13. If, for example, an association or club member of Netball Victoria was satisfied that in its region there was an overwhelming demand to play mixed competition and not girls only competition, I would expect that Netball Victoria would allow its member association or club to make that choice.
Finally, it is clear that relative differences in strength, stamina and physique between genders is not the only factor that can disadvantage competitors. The research shows that differences in strength, stamina and physique within one gender at a particular age can also affect competitiveness.

[4] Re Netball Victoria [2005] VCAT 1934

Opportunity Act 1995

Responsibilities Act 2006

Victorian Netball Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2651 (24 December 2008)

Victorian Netball Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2651 (24 December 2008)

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Legislation Cited (2)

Cases Cited (1)

Victorian Netball Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2651 (24 December 2008)