IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA ADELAIDE DISTRICT REGISTRY
No. AZ154 of 2002
TRUDY ANN GARDNER
ALL AUSTRALIA NETBALL ASSOCIATION LIMITED
SUBMISSIONS OF THE SEX DISCRIMINATION COMMISSIONER
Scope of this submission
- The Sex Discrimination Commissioner ("SD Commissioner") seeks leave to make the following written submissions and supplement them with brief oral submissions. If appropriate, and with the leave of the Court, the SD Commissioner may also seek to make further submissions on matters arising during the hearing of this matter that are not evident from the submissions of the parties.
- These submissions are limited to a consideration of s 39 of the Sex Discrimination Act 1984 (Cth) ("SDA"). No submissions are made in relation to the factual issues in the present proceedings.
- The submissions of the SD Commissioner can be summarised as follows:
- nt with established principles of statutory interpretation, s 39 of the SDA should be narrowly construed.
- Section 39 does not provide an unlimited exemption to voluntary bodies to discriminate against persons on the ground of their sex, marital status or pregnancy.
- In defining the limits to s 39, the key concept around which the section should be understood is "membership". The primary purpose of s 39 is to permit voluntary bodies to define and regulate their internal relationships.
- The words "in connection with" may therefore expand the scope of the section in two specific ways:
- they expand the scope of the protected actions of a voluntary body ("admission" and "provision"); and/or
- they extend the protection of the section to cover the provision of benefits, facilities or services to a class of "de facto" members.
- Applying either construction, the actions of the respondent do not fall within the parameters of s 39.
- The construction advocated by the respondent is unduly broad, and is not required to enable the respondent to exclude male netballers - the exemption under s 42 of the SDA exists for that purpose.
Approach to exemptions under the SDA
- In construing legislation designed to protect human rights, the courts have a special responsibility to take account of and give effect to the purposes and objects of the legislation.(1) In accordance with this principle, exemptions and other provisions which restrict rights should be construed narrowly.(2)
- Further, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object; s.15AA Acts Interpretation Act 1901 (Cth). This approach does not only apply in circumstances where there is an ambiguity or inconsistency in the Act.(3)
- The objects of the SDA are set out in s 3 and include, relevant to the present matter:
- to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and
- to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs.
- A narrow construction of exemptions under the SDA is required to give effect to the object of the SDA to "eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services" (emphasis added).
- The structure of Part II, Division 4 of the SDA seeks to promote this object. The particular exemptions provided for in that Division are designed to cover only particular fields, while maintaining the unlawfulness of acts of discrimination falling between the exemptions. A broad construction of an exemption such that it overlaps with or completely subsumes other exemptions defeats the purpose behind the manner in which the Division is structured, as well as being contrary to the objects of the SDA as a whole.
- Section 3(a) of the SDA provides that one of the objects of the SDA is to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).(4) A related principle of the common law is that a statute is to be interpreted and applied, so far as its language admits, in a manner which is consistent with established rules of international law and which accords with Australia's treaty obligations.(5) That approach is not limited in its application to ambiguous statutory provisions.(6) Rather, wherever the language of a statute is susceptible to a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail.(7)
- Conversely, if the Parliament intends to legislate inconsistently with Australia's international obligations, it should express that intention clearly. Such a requirement does not infringe upon the principle of Parliamentary supremacy. Rather, it contributes to greater integrity in the legislative process by ensuring that Parliament squarely confronts situations where proposed legislation breaches binding international obligations, being obligations which the Executive has entered into on behalf of Australia.
- The following provisions of CEDAW impose upon Australia legal obligations which are relevant to the operation of the SDA and require a narrow interpretation of exemptions:
- States parties to CEDAW undertake to eliminate discrimination against women in all its forms: Articles 1 and 2. While the definition of "discrimination" in Article 1 refers to any "distinction, exclusion or restriction made on the basis of sex", that phrase is to be given a broad and beneficial interpretation and can include acts that would also amount to discrimination on the ground of pregnancy.(8) The measures States parties are required to undertake, for the purposes of eliminating discrimination against women in all its forms, include ensuring through competent national tribunals the effective protection of women against any act of discrimination (Article 2(c)) and taking all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise (Article 2(e)). In the context of this case, those obligations require this Court to adopt an interpretation of s 39 that, in so far as is possible, eliminates any acts of voluntary bodies that constitute discrimination (in all its forms) against women.
- States parties are to ensure, on a basis of equality between men and women, equal opportunities to participate in sports and physical education (Article 10(g)) and the right to participate in recreational activities, sports and all aspects of cultural life (article 13(c)). A broad construction of s 39 would allow voluntary bodies engaged in sporting activities to engage in a significantly wider range of distinctions or exclusions between men and women, in a manner which is inconsistent with those obligations.
The correct construction of section 39
- Section 39 of the SDA provides:
Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person's sex, marital status or pregnancy, in connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the body.
- It is important to note that s 39 does not provide an unlimited exemption to voluntary bodies to discriminate against persons on the ground of their sex, marital status or pregnancy. The exemption only applies to discrimination in the particular circumstances set out in that section.
- The words "in connection with" give the section a degree of flexibility. However, consistent with the principles outlined above, such flexibility must be carefully limited to avoid giving the section an unduly broad (or, indeed, unlimited) scope.
- The key concept around which s 39 should be understood is "membership". The exemption would appear to reflect a concern to protect the right of free association, which is a basic right of a democratic society (protected under the international instruments to which Australia is a party(9) ) and one with which the State has traditionally been reluctant to interfere. In the submission of the SD Commissioner, the primary purpose of s 39 is to permit voluntary bodies to discriminate in defining (via the admission process) and regulating their internal relationships.
- In this context, the words "in connection with" may expand the scope of the section in 2 particular ways:
- they expand the scope of the protected actions ("admission" and "provision"); and/or
- they extend the protection of the section to cover the provision of benefits, facilities or services to a class of "de facto" members.
Expanding the Scope of Protection Actions
- The words "in connection with" should be understood as expanding the scope of "admission" to include non-admission, or the terms, conditions or manner of admission and "the provision of benefits, facilities or services" as including the refusal to provide, or the terms, conditions or manner of provision of benefits, facilities or services to members.
- In other words, the section should be read as permitting:
- discrimination by a voluntary body in the admission (or non-admission, or terms and conditions of admission) of persons as members; and
- discrimination by a voluntary body in the provision (or the refusal to provide, or in the terms or conditions of provision, or the manner of provision) of benefits, facilities or services to members of the body.
- Such a construction reflects the fact that s 39 appears to be primarily directed at possible breaches of s 22 of the SDA (goods, services and facilities), the provision alleged to have been breached in this matter. The consideration of applications for membership (s 39(a)) is a service(10) and s 39(b) clearly contemplates breaches of s 22. However, ss 39(a) and (b) are each confined, in their terms, to the granting of certain rights or benefits: admitting members and providing benefits. The words "in connection with" allow the statutory defence to operate upon the broader matters that would otherwise be unlawful by virtue of s 22.
- Applying that construction to the facts of the present case, the applicant was not and can never be a member of the respondent: members can only be "properly constituted organisations controlling netball in each of the States and Territories of Australia". (11) The expansion of the protected actions of "admission" and "provision of benefits, facilities or services to members" achieved by the words "in connection with" does not result in s 39 applying so as to exempt the actions of the respondent.
"De facto" Membership
- The second way in which the words "in connection with" may expand the scope of the exemption in s 39 is through an extension of the activities covered by s 39(b) to include benefits, facilities or services provided to "de facto" members. Such a class would include persons who would otherwise fall within the (discriminatory) class of members to whom benefits, facilities or services are provided.(12) The benefits, services or facilities provided in this context must also be the same as (or a subset of) those provided to actual members.
- By way of example, a voluntary body providing men's relationship counselling would be able to hold sessions for members and male guests. Such "guests" fall within a class of "de facto" members as they fall within the discriminatory membership criterion. It would not be open to a woman denied entry to such a session to claim that she was being discriminated against on the basis of sex, as the discrimination would be relevantly "in connection with" the services provided to members.
- It would, however, be impermissible under this construction for the voluntary body providing men's relationship counselling to hold sessions open to all except pregnant women. Such discrimination lacks the requisite connection to the key relationship of membership.
- In the current matter, there is no issue of services being provided to "de facto" members. While services are being provided by the respondent to non-members (players) those persons cannot otherwise fall within the class of members. As noted above, members can only be "properly constituted organisations controlling netball in each of the States and Territories of Australia".(13)
The respondent's proposed construction of section 39
- If broadly construed, anything a voluntary body does could be said to be done "in connection with. the provision of benefits, facilities or services to members of the body" - it is the provision of such benefits, facilities and services to members that is invariably the reason for the establishment of such bodies. However, for the reasons set out above, to give s 39 such unlimited scope is contrary to the structure of the section and the purposes of the SDA. Contrary to the respondent's submissions, there is an alternative and appropriately narrow construction of s 39 open to this Court, being the construction outlined by the Commission above.
- As outlined above, s 39 is a provision which operates to restrict fundamental human rights involving Australia's international obligations and therefore should be construed narrowly. Courts do not impute to the legislature an intention to abrogate or curtail such fundamental rights unless such an intention is clearly manifested by unmistakable and unambiguous language.(14) For example, Parliament might have:
- provided simply that nothing "renders it unlawful for a voluntary body to discriminate against a person on the ground of the persons' sex, marital status or pregnancy";
- included the words "or non-members" after the word "members" in s 39(b) of the SD Act;(15) or
- simply omitted the words "to members of the body" altogether.
- The respondent appears to suggest that the construction of s 39 it seeks to advance is necessary to enable the respondent to make it a condition of participation in the competition that a player be female. This is, however, not the case. The respondent would be able to exclude male netballers from participation in the Competition if it is able to satisfy s 42(1) of the SDA which provides that:
(1) Nothing in Division 1 or 2 renders it unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
- It is not therefore necessary to resort to broadening the definition of s 39 to achieve the result advocated by the respondent in relation to male netballers. Section 42, and the other general exemptions contained in Division 4, Part II of the SDA, are applicable to the relationships of a voluntary body and the public generally. The example demonstrates the manner in which the various exemptions to the SDA operate when properly, and narrowly, defined.
- It is an analogous principle of construction that general provisions not be construed in a manner that derogates from special provisions. As Deane J stated in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 (emphasis added):
As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. `The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ...' (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.(16)
- In the present case, the construction advocated by the respondents would broaden the exemption provided under s 39 in a way such that it would encroach upon the subject matter covered by other exemptions, carefully defined by Parliament, of which s 42 is one.
- Other hypothetical fact situations may be used to further illustrate the surprising breadth of the respondent's proposed construction of s 39 of the SD Act. For example, the respondent's proposed construction of s 39(b) would equally support a ban arbitrarily imposed by the respondent preventing pregnant women from attending competition games as spectators. Applying the reasoning in paragraph 8 of the respondent's submissions, the respondent would be supplying similar services to both its member clubs and potential spectators: being the provision of a sporting fixture or spectacle. Yet it plainly cannot have been the intention of Parliament that that so called "connection" would be sufficient to lead to the conclusion that s 39(b) of the SD Act applied to such a situation.
24 February 2003
Solicitor for the Sex Discrimination Commissioner
1. Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 and 41- 42 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J
2. X v Commonwealth (1999) 200 CLR 177 at 233 per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR 280 at 333 and footnotes 168-169, per Kirby J
3. Mills v Meeking (1990) 91 ALR 16 at 30-31, per Dawson J
4. Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). The Convention is set out in the Schedule to the SD Act.
5. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation In Australia (5th Ed, 2001) at [5.14].
6. See eg Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms  2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions, the concept of 'ambiguity' in this context is construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
7. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ; Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.
8. See, by way of analogy, Thomson v Orica Australia Pty Ltd  FCA 939 at .
9. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) ("ICCPR"), Article 22. Note also that article 2 of the ICCPR requires States parties to ensure to all individuals the rights recognised in that covenant without distinction of any kind, including sex.
10. IW v City of Perth (1997) 191 CLR 1, Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306.
11. See Article 2(a), Articles of Association, All Australian Netball Association Ltd, annexure A (page 18) to the affidavit of Ms Pamela Smith sworn 9 September 2002.
12. The benefits, services or facilities provided in this context must also be the same as (or a subset of) those provided to actual members. This is necessary to limit the operation of s 39 to the relationship of membership.
13. See above, n 11.
14. Plaintiff S157 of 2002 v Commonwealth of Australia  HCA (4 February 2003) at  per Gleeson CJ.
15. See, for example, s 31 Discrimination Act 1991 (ACT) which provides an exemption for voluntary bodies "in connection with. the provision of benefits, facilities, or services to persons, whether those persons are members of the body or otherwise" (emphasis added).
16. Cited with approval by Wilcox J in Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306 at 318.
Last updated 22 August 2003.