BOWLS SA INCORPORATED - [2010] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
BOWLS SA INCORPORATED
[2010] SAEOT 1
Judgment of Her Honour Judge Cole, Member Mr D Shetliffe and Member Ms A Bachmann
26 February 2010
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - MEMBERSHIP OF CLUBS AND ASSOCIATIONS
Application for exemption from s35(1)(b) and s39(1)(b) of the Equal Opportunity Act 1984, seeking to enable applicant to organise and conduct single gender lawn bowls competitions - whether exemption should be granted. Order made granting exemption until 30 June 2012.
Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1995 (Vic), referred to.
South v Royal Victorian Bowls Association Inc [2001] VCAT 207; Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308, considered.

BOWLS SA INCORPORATED
[2010] SAEOT 1

Bowls SA Inc (“Bowls SA”) applied to this Tribunal on 16 October 2009, pursuant to s 93 of the Equal Opportunity Act 1984 (“the Act”) for an exemption from the provisions of s 29, s 35(1)(b) and s 39(1)(b) of the Act.
Bowls SA is the organising body for the game of lawn bowls within the State of South Australia. At the hearing of the matter, Mr Kerin appeared as counsel for Bowls SA. Mr Kerin tendered a series of affidavits in support of the application.
Exemptions sought
The purpose of the exemptions sought is to enable Bowls SA to organise and conduct single gender lawn bowls competitions. The exemptions are sought for a period of three years.
The Act provides, in s 35(1)(b) and s 39(1)(b) (both of which are in Part 3 of the Act) as follows:-
s 35(1) It is unlawful for an association to discriminate –
(a)…
(b)against a member of the association on the ground of sex, chosen gender or sexuality –
(i)by refusing or failing to provide a particular service or benefit to that member; or
(ii)in the terms on which a particular service or benefit is provided to that member; or
(iii)by expelling that member from the association or subjecting him or her to any other detriment.
s 39(1) It is unlawful for a person who offers or provides –
(a)…
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of sex, chosen gender or sexuality –
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
The definition of services to which this Act applies includes:
(d)     the provision of a scholarship, prize or award;
(e)     entertainment, recreation or refreshment;
(g)     the provision of coaching or umpiring in a sport.
The Need for Exemptions
It was made clear by Mr Kerin that the application was being made as a precautionary measure. It was the evidence of Mr Scales, the General Manager of Bowls SA, that Bowls SA traditionally conducted competitions for single gender teams. In 2007, a complaint was made to the Commissioner for Equal Opportunity concerning the single gender competitions. That matter did not result in a hearing before this Tribunal. The parties to the dispute negotiated a resolution. As part of that resolution, Bowls SA established a steering committee to investigate the issue. That committee, after consultation with various entities, produced a policy entitled “Parameters for the Implementation and Operation of Open Gender Competition Policy” (“the Policy”), which, we understand, was adopted by Bowls SA, and has formed the basis for competitions for the last two seasons. The Policy is described in more detail below.
The Policy has now been in force for two lawn bowls seasons: the 08/09 season and the 09/10 season. Bowls SA has received a substantial amount of feedback from its members, which will be considered in more detail later in these reasons. The application now before us is a response to that feedback.
The Act provides, in s 48:
S 48 Sport
This Part does not render unlawful the exclusion of persons of the one sex from participation in a competitive sporting activity in which the strength, stamina or physique of the competitor is relevant.
The Equal Opportunity Act 1995(Vic) has an equivalent provision, which has been the subject of a decision of the Victorian Civil and Administrative Tribunal (VCAT). In South v Royal Victorian Bowls Association Inc [2001] VCAT 207, Miss South sought to play in the Royal Victorian Bowls Association (RVBA) Saturday afternoon pennant competition. It was a prerequisite for entry into that competition that she be an affiliated member of the RVBA. However, her application for affiliated membership was rejected because she was female. She complained to the Equal Opportunity Commission of Victoria. That complaint resulted in a hearing before VCAT. The RVBA relied upon s 66 of the Equal Opportunity Act 1995(Vic), which was in similar terms to s 48 of the South Australian Act. A number of experts in anatomy, bio-mechanics, human movement and the like gave evidence on each side, as did a number of experienced players of lawn bowls. In its decision, VCAT said that the onus was on the RVBA to satisfy it that s 66 applied. After setting out an analysis of the evidence before it, VCAT said:
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 the difference 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.
A decision of VCAT is not binding in South Australia. The application of s 48 of the Equal Opportunity Act 1984(SA) to lawn bowls has not been the subject of any judicial determination in South Australia.
Bowls SA does not concede that its competitors do not fall within s 48. Bowls SA believes, in fact, that they may. Bowls SA does not, however, wish to wait for a complaint to be made and litigated in order to resolve the issue. Instead, it seeks to avoid coming into conflict with its members by means of the exemptions sought until a satisfactory way of arranging lawn bowls competitions is devised.
The Tribunal’s power to grant exemptions is contained in s 92 of the Act. Such an exemption may remain in force for a maximum of three years (s 92(2)(c)), but may be renewed.
The Present Situation
Bowls SA Inc is an incorporated association. For administrative purposes, for lawn bowls, South Australia is divided into twelve regions, four of which are metropolitan regions and eight of which are country regions. Regions are not separate legal entities, but each region has its own executive committee, members of which are elected by delegates of member clubs within the region. Each country region has within it a number of “associations”, which, again, are not separate legal entities. There are 46 associations; 22 men’s and 24 women’s. These associations are each administered by their own executive committee which is elected by delegates of the member clubs assigned by Bowls SA to that particular Association. There are 171 country clubs. In the metropolitan area there are 53 clubs. There are no associations in the metropolitan area.
In the metropolitan area, the Bowls SA Match and Program Committee administers the metropolitan pennant competition. This committee also produces the General Conditions of Play for pennant competitions.
In the country regions, it is the task of the associations to conduct pennant competitions in their areas, together with association and region championship events. The associations are permitted to modify the General Conditions of Play to take into account local circumstances and Member Club requirements.
At present, there are 224 member clubs of Bowls SA: 53 in the metropolitan area and 171 in the country. On 30 June 2009, there were 17,774 individual members of all the member clubs. 16,606 of these members had full membership; 11,227 men and 5,379 women.
Bowls SA lawn bowls competitions have traditionally been organised for single gender teams. That practice was changed when the Policy, referred to above, was implemented.
The Policy is contained in two documents; one for “major” competitions and one for “non major” competitions. Both documents provide:
Each Member Club shall have a Selection Policy based on merit.
For “major” competitions, the Policy provides for a system of “Open Gender Permits”. The Policy says:
2.     ELIGIBILITY
Any fully registered Bowls SA player wishing to be considered for selection in an opposite gender side shall apply through their Club Board of Management for a BSA Open Gender Permit (OGP).
2 (a)   OGP issuing procedures
i.The member is to request permission from their Club Board of Management for an OGP.
ii.The Club Administrative Secretary ticks the OGP box that appears on the Club’s database list of Registered Members or New Member’s form and retains a photocopy for their records.
iii.Clubs must provide a copy of the form to the relevant Association/s and Region as previously required.
iv.The Club Administrative Secretary must forward the original form to Bowls SA.
v.Bowls SA then processes the request and updates the data base.
vi.The Club or Association can be issued with a listing of OGP holders on request.
3.     POSITION IN RINK/TEAM
An OGP player shall be eligible to play in any position in the rink/team based on merit in accordance with the Selection Policy.
It was not clearly stated in the evidence before us, but we gained the impression that an Open Gender Permit would be granted automatically to any registered player upon request. The Policy for “non major” competitions simply provides:
2. ELIGIBILITY
All fully registered Bowls SA players are eligible to compete but those wishing to be considered for selection for regular pennant competitions shall put their name forward to the Club Selectors.
The Policy has been in force for the last two seasons of lawn bowls. We gather from the affidavits tendered that the various competitions continue to be primarily for either men or women, but that, in the case of a “major” competition, a man with an open gender permit may seek to be selected for a team which is to play in a competition which is primarily for women, and will be selected if he has the requisite degree of merit as a player. The same applies to a woman with an open gender permit seeking to be selected in a team which is to play in a competition which is primarily for men. In “non major” competition, the same applies, except that the person seeking selection need not have an open gender permit. We have not been provided with comprehensive information about the manner in which the policy has been implemented at every level of lawn bowls in South Australia.
It is not our task to determine whether the system as it has been for the last two years conforms to the requirements of the Equal Opportunity Act 1984. We are dealing with an application for exemptions for future bowls seasons. Much of the material put forward in support of the application, however, relates to the reaction of some of the club members to the system as it has been since the Policy came into existence.
Members Opinions
Bowls SA tendered affidavits from Ms Gaynor Pitcher, a member of the Mannum Bowling Club, and Mr Jeffrey England, a member of the Kingston Bowling Club. Ms Pitcher said that it was her observation that some female bowlers are uncomfortable playing in competitions with male bowlers. She said that some female bowlers were uncomfortable with the language used by some of the male bowlers. She also said that in some teams men have come into teams as skippers and thirds, when women would previously have had those positions. Ms Pitcher previously enjoyed the company of women in women only competitions and is concerned about the change to mixed gender competitions from a social point of view. Mr England made similar observations in relation to men’s competitions.
An affidavit of Mr Littlejohn, the High Performance Manager for Bowls Australia Inc, was also tendered. Mr Littlejohn said that he oversees the selection processes for lawn bowlers to play for Australia in international events. He said that international competitions are “gender specific events” which we take to mean that they are single sex.
Bowls SA surveyed its members about their experience of the competition since the introduction of the Policy. Bowls SA received 3,829 responses to that survey. Mr Scales summarised the result of the survey as he saw it in paragraph 15 his affidavit (A1):
15.1 60% of those members that responded expect that the number of participants would decrease should the practice of open gender be required in all competitions.
15.2 70% of metropolitan members that responded believed that the number of participants would decrease should the practice of open gender be required in all competitions.
15.3 23% of those members that responded believe that it is the Women’s competitions that have improved the most from the introduction of an open gender competition.
15.4 28% of those members that responded believe that it is the Men’s competitions that have improved the most from the introduction of an open gender competition.
15.5 41% of those members that responded believe that it is the Women’s competitions that will suffer the most from a continuation of the open gender competition.
15.6 16% of those members that responded believe that it the Men’s competitions that will suffer the most from a continuation of the open gender competition.
15.6 56% of respondents believed that the introduction of the Open Gender policy has not benefited the sport of bowls in South Australia, with this figure being 68% for the metropolitan area.
15.8 70% of respondents felt that sides had been unfairly strengthened in critical games, with the policy being manipulated and “stacking” occurring in both gender competitions.
15.9 In relation to the preferred make-up of Bowls SA competitions, 69% of respondents wanted single gender competitions, being 40% preferring single gender competitions only and another 29% wanting both single gender and open gender competitions.
In a letter to the Tribunal, Mr Hutton, a bowls club member, criticised the use of the survey on the following basis:
·this survey was poorly designed
·only 22% of possible respondents returned questionnaires, a small sample
·the responses have been reported selectively; and
·in the interpretation there are numerous assertions based on what people believe, but which are unsubstantiated with data.
Mr Kerin argued that the matters upon which Bowls SA relied were not matters which were capable of being the subject of “scientific proof”. Mr Kerin argued that there was a reasonable basis for the genuine apprehension which the Board of Bowls SA holds that the Policy was having the effect of diminishing participation in lawn bowls, and that it was contributing to a decline in the membership of lawn bowls clubs. Documents in evidence show that there has been a decrease in the number of registered male and female bowlers over the last few years. The decrease was greater from 08/09 to 09/10 than it was from 07/08 to 08/09. On the basis of a considerable volume of anecdotal data, Bowls SA attributes some of that decline to the implementation of the Policy.
Mr Scales provided to the Tribunal all of the letters he has received regarding the Policy. Of the fifty letters provided, forty eight were broadly opposed to the Policy, and two were in support of it. Five petitions in opposition to the Policy were included, with a total of 102 signatures. Many of the letters presented points both for and against the Policy.
This is a summary of the points presented by members of lawn bowls clubs to Bowls SA in opposition to the Policy:
·on the whole, men play with larger, heavier bowls, and the smaller bowls generally used by women are easier for the men to dislodge.
·on the whole, men can drive with greater speed and length, which puts them at a competitive advantage when playing against most women.
·the style of play which men are used to is different from the style of play engaged in by women, and this makes for an uncomfortable situation in mixed play from time to time. More aggression has been traditionally acceptable in men’s play, compared to the way women play, and comments acceptable among men whilst playing have, on occasions, given offence to women in mixed play.
·few women are choosing to play in the competition which was formerly for men only; many more men are playing in the competition which was formerly for women only.
·men are taking skipper and third positions in the competition which was formerly for women only, thus depriving women of the opportunity to play in these positions.
·if men continue to take the position of skipper and third in the women’s teams, women will lose the skills necessary for those positions, or will fail to acquire those skills.
·the elderly and those of lesser ability are finding it difficult or impossible to maintain their place in a team.
·some men and women simply prefer single sex competition and valued the social interaction around that and are sad to lose it.
·some clubs are stacking sides in what the women’s competition with Premier 1 men to improve their chance of winning. Consequently, clubs which are not inducing men to seek selection in those teams are at a competitive disadvantage.
·the change has been divisive within clubs and has caused ill feeling.
·the general understanding of policy and legislation affecting the matter is quite poor among lawn bowls players.
·some players have stopped playing lawn bowls in response to the effects of the implementation of the Policy. More women have stopped playing than men.
This is a summary of points presented by members of lawn bowls clubs to Bowls SA in favour of the Policy:
·without the Policy, some clubs would not be able to field a team in the pennant competition. Some clubs would not survive without it.
·some married couples are enjoying playing together.
·some of the bad language and behaviour experienced in some clubs in the men’s competition has been cleaned up, making the sport more attractive to the younger generation.
·the skill level of the elite women has improved because they are playing against men who are at a higher skill level.
·clubs have greater flexibility in their selection.
·the Policy has led to better coaching for women.
·the Policy is convenient for those players who had other commitments on the traditional competition night for their sex.
It was evident from some of the submissions that there are competitions other than the pennant competition (eg. club championships, state events, Round Robin, Prestige medley and interclub tournament competition) in relation to which the Policy may not be being implemented.

Many of the submissions expressed the desire for an open gender competition to be conducted as well as a single sex men’s competition and a women’s competition. Approving reference was made in several submissions to a practice, which we gather was in place prior to the Policy, of permitting players of the other gender to fill in for a team if all the places in the team could not otherwise be filled.
Many of the submissions gave us the impression that it was not understood by members in some of the clubs that the Policy was an attempt to comply with the Equal Opportunity Act 1984. Many of the submissions seemed to have been written on the basis that the Policy was a matter for Bowls SA alone, and that there were no constraints upon Bowls SA’s ability to deal with the issue of discrimination.
Some of the submissions were well informed and well argued. Some were amusing. Some dealt with the matter philosophically. A significant proportion, however, had notes of distress, sadness, disappointment, anger and resentment.
The Law
In Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College, [2007] SASC 308, the Full Court of the Supreme Court considered the basis for the granting of an exemption pursuant to s 92 of the Act. White J, with whom Nyland J and Kelly J agreed, said at paragraph 13:
Section 92(6) identifies one particular circumstance in which an exemption may be appropriate, namely to permit discrimination for the purpose of redressing the effect of past discrimination. An exemption for this purpose would promote the purposes sought to be achieved by the EOA. Section 92 does not otherwise provide assistance as to the criteria for the grant of an exemption. It provides instead that the Tribunal may have regard to any other factors which it considers relevant.
Looked at generally it can be seen that the EOA seeks to establish norms of social conduct. It does so by making discrimination on the specified grounds of sex, sexuality, marital status and pregnancy unlawful. The grant of an exemption pursuant to s 92 has that effect that certain conduct which would otherwise be unlawful is to be permitted. While it is the policy of the EOA that there may be a derogation of its prohibitions in some circumstances, the effect of an exemption is to qualify the norms of conduct which it seeks to establish. This is an important factor to be considered by the Tribunal in the exercise of its discretion to grant an exemption. It leads naturally to the inference that the Tribunal must, in considering an application for an exemption, have regard to the general objects of the EOA and must be satisfied that proper grounds for the exemption are established. The applicant has the onus (on the balance of probabilities) of establishing the facts relied upon for such grounds and of persuading the Tribunal that the grant of an exemption is appropriate. The grounds for an exemption will usually be found in one or more of three circumstances: the exemption is desirable, if not necessary, to achieve a purpose of the EOA; the general prohibitions would be unreasonably harsh or burdensome in the applicant’s particular circumstances; or there is a wider public interest (perhaps to be found in other legislation) which the grant of the exemption will serve. The redress of the effects of past discrimination is an example of the first purpose. I do not intend by this to state exhaustively the circumstances in which the grant of an exemption may be appropriate. The circumstances of particular cases may reveal other occasions in which the grant of an exemption will be appropriate. It is to be expected, however, that an applicant for an exemption will need to establish more than that compliance with the relevant prohibitions is inconvenient or irksome.
Whatever purpose the applicant seeks to achieve, it is to be expected that the Tribunal will scrutinise the evidence relied upon with some care. In many cases, the Tribunal will be required to balance the benefits sought to be achieved by the grant of an exemption against any detriments which may occur by permitting the applicant to engage in conduct which would otherwise be unlawful. This may require the Tribunal to consider the availability to the applicant of alternative means of achieving its stated purpose.
Any exemption which is granted should be defined with some specificity and should be no more extensive than is necessary to achieve the applicant’s purpose. Both the applicant and the community should have certainty as to the extent to which conduct which would otherwise be proscribed is permitted.
The preamble to the Act says that it is:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate participation of citizens in the economic and social life of the community; and to deal with other related matters.
Decision on Exemption
In his submissions, Mr Kerin argued very strongly that the anecdotal material and the statistics adduced in evidence formed a basis for concern that the objects of the Act are being eroded by Bowls SA’s attempt to comply with the Act by implementing the Policy. The unintended consequence of permitting men to play in the women’s competition without the need for special circumstances, in particular, has reduced the opportunities for women to play bowls in some clubs, rather than enhancing those opportunities. Mr Kerin argued, in effect, that the cultural change being wrought by the implementation of the Policy was reducing participation in lawn bowls, (which is an important part of the social life of the community), rather than facilitating participation, which is what the Act seeks to do. We accept Mr Kerin’s submissions.
The organisation of lawn bowls in South Australia is a large and complex task. The structure of the executive and the administration of Bowls SA is intricate. 17,774 members are affected by the implementation of the Policy. Many of those members have been involved in lawn bowls for many years and have a detailed expectation of what that involvement entails, and what benefit it will bring to them. Changing those expectations has had some unintended consequences in many clubs.
The interpretation of the relevant provisions of the Act and the formulation of a scheme to bring the activities overseen by Bowls SA into compliance with those provisions is a difficult task. It seems to us that an exemption should be granted to enable Bowls SA to give further consideration to the issue of discrimination, in consultation with those affected. Many of the submissions received were from members who believe that lawn bowls is a sporting activity to which s 48 of the Act applies or should apply. It may be that Bowls SA may wish to consider that question afresh, or to seek legislative change to clarify Parliament’s intention in respect of lawn bowls. It may be that there are other ways, apart from the Policy, in which the objects of the Act can be met and its provisions complied with, without the unintended consequences presently being experienced.
We will grant the exemption sought for a period encompassing the 2010/2011 and 2011/2012 lawn bowls seasons. We have fixed upon this period in the expectation that the necessary work can be done within that time. Should that prove to be overly optimistic, a renewal of the exemption can be sought.
There will be an order in the following terms:
Bowls SA Incorporated is exempted from the provisions of s 35(1)(b) and s 39(1)(b)(c) and (d) of the Equal Opportunity Act 1984 in relation to the conduct of lawn bowls competitions from the date of this order until 30 June 2012.
We direct that notice of the grant of this exemption be published in the Government Gazette forthwith.