Bowls SA Incorporated (No 2) - [2012] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
BOWLS SA INCORPORATED (No 2)
[2012] SAEOT 4
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
12 December 2012
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - MEMBERSHIP OF CLUBS AND ASSOCIATIONS
Application for the renewal of an exemption from s 35(1)(b) and s 39(1)(b)(c) and (d) of the Equal Opportunity Act 1984, to enable the applicant to continue to organise and conduct single gender lawn bowls competions - whether the exemption should be renewed. Order made granting exemption until 30 June 2014.
Equal Opportunity Act 1984 (SA) , referred to.
Bowls SA Incorporated [2010] SAEOT 1; Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308, considered.

BOWLS SA INCORPORATED (No 2)
[2012] SAEOT 4

On 26 February 2010, pursuant to s 92 of the Equal Opportunity Act 1984 (“the Act”), Bowls SA Incorporated (“Bowls SA”) obtained from the Equal Opportunity Tribunal an exemption from s 35(1)(b) and s 39(1)(b)(c) and (d) of the Act in relation to the conduct by it of lawn bowls competitions (“the previous exemption”). The previous exemption operated until 30 June 2012. The purpose of the previous exemption was to enable Bowls SA to continue to organise and conduct single gender lawn bowls competitions without breaching the Act. Bowls SA now seeks an extension of that exemption. In its application, it sought an exemption for a further two years. In submissions, Mr Collett sought an exemption for a further three years. An interim extension of the exemption was granted until this application could be heard and determined.
The Need for an Exemption
The Act provides, in s 35(1)(b) and s 39(1)(b)(c) and (d) as follows:
35—Discrimination by associations
(1) It is unlawful for an association to discriminate—
…
(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 other detriment.
39—Discrimination in provision of goods and services
(1)It is unlawful for a person who offers or provides—
…
(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 in s 5 of services to which this Act applies includes:
services to which this Act applies means—
…
(d)the provision of a scholarship, prize or award; or
(e)entertainment, recreation or refreshment; or
…
(g)the provision of coaching or umpiring in a sport; or …
Mr Collett raised the question of whether an exemption was necessary. That is not a matter for this Tribunal. It is not the function of this Tribunal to give advisory opinions. Even if it were appropriate for the Tribunal to give an advisory opinion, we could not do so on the basis of the material before us. A great deal more information about the game of lawn bowls, the manner in which it is played and the organisation of the competitions would need to be adduced. As matters stand, Bowls SA has applied for an exemption from s 35(1)(b) and s 39(1)(b)(c) and (d) of the Act, and we must deal with that application.
The Previous Exemption
The decision of the Tribunal in relation to the previous application for an exemption[1] set out some of the history of the matter, which we will not repeat here. Much of the material before the Tribunal on the previous occasion related to difficulties which had arisen as a result of the attempts which had been made to integrate bowls competitions which had previously been single gender. In granting an exemption from specified provisions of the Act, the Tribunal, on the previous occasion, said:
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 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 seek legislative change to clarify Parliament’s intention with respect to 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.
[1] Bowls SA Incorporated [2010] SAEOT 1
The Law
The Full Court of the Supreme Court, in Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College[2] said that, in considering an application for exemption from the Act, the Tribunal must have regard to the objects of the Act and must be satisfied that proper grounds for an exemption have been established, bearing in mind that an exemption qualifies the norms of conduct which the Act seeks to establish. White J, with whom the other members of the Court agreed, said:[3]
The grounds for 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 prohibition 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.
[2] [2007] SASC 308
[3] para 14
The Grounds for the Application
The application for the exemption sets out the following grounds for the application:
1.That since the Tribunal order of 26 February 2010 the Applicant has used the exemption currently in force to 30 June 2012 to ensure the practical and efficient restructuring of competitions.
2.That since the Tribunal’s order there has been an alteration to the structure of the competition but that further time is required to
2.1 continue to educate the participants in relation to the necessity for open gender competitions;
2.2 to examine other alternatives open to the Applicant in relation to the provision of single gender competitions; and
2.3 to continue to offer single gender competitions for the purposes of those bowlers wishing to advance to superior competitions in a way that complies with the Act.
3.The exemption was originally granted pursuant to s 92(2)(c) of the Act.
4.The Tribunal has the power to grant an extension of the exemption application pursuant to s 92(2)(c) of the Act.
5.The exemption as originally sought and granted is within the spirit of the Act as it promotes the equality of opportunity for bowlers of both genders. An extension of the order at this time will encourage further participation in the sport of lawn bowls and further consideration of both open and single gender competitions.
An affidavit of Steve Glasson, an affidavit of Ivy Kluske and two affidavits of Benjamin Scales were tendered in the applicant’s case. Mr Glasson is the National Coach for Bowls Australia Inc. In his affidavit, Mr Glasson said that the competition pathways to participation in international events is, by way of single gender competition.
Ms Kluske is the President of Bowls SA. In her affidavit, Ms Kluske said that following the grant of the previous exemption, the Open Gender Steering Committee of Bowls SA formulated the 2010/11 Bowls SA Competition Policy. This Policy was then further refined for the 2011/12 competition. The purpose of the Policy, Ms Kluske said, was to ensure that every member of Bowls SA had the opportunity to play in an open competition, with selection based on merit rather than gender. Ms Kluske believes that offering an open competition as well as single gender competitions has alleviated many of the concerns about declining participation and unfair strengthening of teams. Ms Kluske acknowledges that some concerns remain. Ms Kluske says that she believes that “the best way forward” is a combination of single gender and open bowls competitions.
Mr Scales is the General Manager of Bowls SA. In his affidavit, sworn on 19 October 2012, Mr Scales said that the 2010/11 Policy said that every Controlling Body of Bowls SA “must endeavour” to offer an open competition where selection is based solely on merit. The Policy was changed for the 2011/12 version to say that every Controlling Body “must” offer an open competition where selection is based solely on merit. Mr Scales said that consultation had taken place with members and discussions had occurred at the Bowls SA Council meetings. Some promotion of the open competitions has taken place. A review of boundaries of the Bowls SA regions has occurred, and Mr Scales asserted that this assisted with the implementation of “a structure that would contribute to compliance with the Equal Opportunity Act”. Mr Scales said that the Boundary Review Committee “actively promoted the alignment of men’s and women’s sections of Members Clubs within the same association and the promotion of the amalgamation of men’s and women’s Associations.” This, he believed, would “enable the efficient offering of both open and single gender competitions to ensure every Bowls SA member has the ability to play in an open competition where selection is based on merit.” Mr Scales said that Bowls SA wishes to pursue the possibility of legislative change. Bowls SA has done very little to date in pursuit of this objective.
Decision on Exemption
The previous exemption was given principally to give Bowls SA an opportunity to explore and pursue ways of bringing its activities into compliance with the Act (or an amended version of the Act) with minimum disruption to the participation by its members in the sport of lawn bowls. Some progress has been made to this end, but the effort falls well short of what is required. We understand that the conduct of the functions of Bowls SA is a complex undertaking, and that resources are constrained, but it does not seem to us that an intention to continue into the future on the same basis as at present, seeking end to end exemptions under s 92 of the Act, would accord with the objects of the Act. The Act in s 92 contemplates exemptions for up to three years, which may be renewed from time to time. We do not consider that the legislature intended the Tribunal to facilitate exemptions from the Act on an on-going, open ended basis.
We will renew the exemption until 30 June 2014 on the basis that Bowls SA requires more time to pursue ways of bringing its operations into conformity with the Act, or to seek an amendment to the Act to accommodate its needs. We consider that the grant of this further time is in the interests of the participants in the sport, in that it will avoid sudden disruption to the competition. The exemption will be until 30 June 2014 rather than being for the longer period Mr Collett asked for, because it seems to us that an exemption for a total of four years is more than adequate to enable the necessary changes to be made.
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 2014.