The Charter, at last, is the lead story in the Herald Sun. And not, as I would have predicted, to pillory the statute for freeing a rapist or terrorist or some such. How could I miss the fateful interaction between Victorians’ human rights and Victorians’ main obsession? Alas, I’d voice my own views on AFL here, pursuant to Charter s. 15(2), were it not for Charter s. 15(3)(b)…
The issue is girls in footy (as opposed to women on the Footy Show):
A 14-YEAR-old girl is attempting use Victoria’s new Charter of Human Rights to allow her to play finals footy with her local team. In what could be a precedent-setting case, Evelyn Rannstrom’s parents are arguing their daughter should be able to continue playing in the under-14s team at Gembrook Cockatoo Junior Football Club as they push for the finals. Ms Rannstrom has been denied an age exemption by the Dandenong Ranges Junior Football League to play in the under-14s as AFL Victoria rules exclude girls from playing once they turn 14 and discourage them from playing with boys above the level of under-12s.
Earlier this year, Ms Rannstrom’s parents lodged complaints against AFL Victoria at the Victorian Equal Opportunity and Human Rights Commission. However this failed and today the case moved to the Victorian Civil and Administration Tribunal where it was argued that under the terms of Victoria’s new Charter of Human Rights, she should be allowed to play. The Charter became law on July 25 last year.
Apart from that last sentence – a year out and ignoring the crucial commencement dates – this is an accurate summary. Nice to see that everyone’s dropping the Responsibilities these days.
The case looks set to be a test (if far from the only one) for the interesting question of the interaction between the Equal Opportunity Act 1995 and the Charter. Here’s my quick take on the issues:
First, the key issue is the effect of the Charter on this statutory provision:
66(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.
(3) Subsection (1) does not apply to a sporting activity for children under the age of 12 years.
In a series of judgments, VCAT has held that s66(1) allows either males or females to be excluded from a sport if their relative physical attributes would make a difference to the game. This is tricky test that has produced some nuanced outcomes: girls over 14 can be excluded from ice hockey that involves adult players, except as goal keepers; women can’t be excluded from lawn bowls (despite the valiant argument of the relevant associations, citing various experts, that women can’t do drive shots); and under 14s can’t but under 15s can be excluded from Aussie Rules. The issues are complicated by a sub-section on age discrimination, the Act’s exemptions regime – which has excluded some men from some women’s lawn bowls events – and other rules covering clubs. But I think s66(1) is the big question.
(As far as I can see, the AFL or its various affiliates is no public authority – it may well be exercising functions of a most public nature but surely not on behalf of the state of Victoria? – so its internal rules are not directly implicated by the Charter.)
Second, the relevant right is, obviously enough, this one:
8(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
The tricky issue is the Charter’s definition of discrimination:
3(1)… discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis of an attribute set out in section 6 of that Act
This clearly picks up the attributes of sex (and, if necessary, age) from the EEO. The technical issue is whether it also picks up exemptions like s66(1). I think the terms of the EEO are against that view, as the provision that sets out the ‘meaning of discrimination’ doesn’t mention exemptions, whereas the provision on the exemptions says that they narrow the protection offered by the statute, not the meaning of discrimination. On this approach, the exemptions all can be regarded as in breach of Charter s. 8(3), at least to the extent that they make the law’s protection against discrimination either less ‘equal’ or less ‘effective’.
Third, so the question is whether s66(1) can be reinterpreted in light of the Charter’s interpretation mandate. I’m not sure there’s a lot of room for reinterpretation, because VCAT has already done its best to interpret s66(1) as narrowly as possible, e.g. rejecting the view that the mere role of stamina in sport is good enough to qualify and placing the burden of proof on the person claiming the exemption. But one interesting angle is the argument that s66(1) should be limited to discrimination against stronger rather than weaker sexes. So, boys can be barred from netball, but girls can’t be barred from basketball. This approach – itself discriminatory, of course – gets some backup form Charter s. 8(4):
8(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
Well, some. This provision is about redressing people who are discriminated against, not people who are weak. People who actually know something about AFL will no doubt no more than me about the reasons behind the absence of women’s teams from the front of the sport pages. VCAT has already held that this alternative interpretation is a linguistically plausible one, but rejected it after mulling over the history of the provision and the arguments that do exist for keeping weaker players out of stronger leagues. In Charter terms, this mostly comes down to whether the ‘one-way-discrimination’ reading is consistent with the purpose of s66(1), whatever that is.
Fourth, regardless, there’s Charter s7(2) to consider:
7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including- (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
If the current reading of s66(1) is a reasonable limit on human rights, then there’s no reason to re-interpret it. (Not everyone agrees with this, but I’m pretty damn sure that the VCA will followed the New Zealanders on this.) And, if s66(1) cannot be re-read in a way that fits Charter s. 8(3), then there’s the prospect of a declaration of inconsistent interpretation to consider (although VCAT will have to punt that issue over to the Supreme Court, who would then, at best, be able to dropkick it over to Parliament. Man, I need to build up my sporting vocab.) Again, that’ll come down to Charter s7(2) and whether or not s66(1) is a reasonable limit on Charter s. 8(3). Is the purpose of s66(1) – whatever it is – important enough to trump the Charter’s equality rights? And does it achieve that purpose by proportionate means?
I won’t venture an opinion on the application of Charter s7(2) to s66(1) – I’ll leave that to people who actually know anything about AFL or sport – but this is a great opportunity to quote the US Supreme Court’s most entertaining (and smartest) judge, Antonin Scalia. In 2004, the US Supreme Court ruled that the US Professional Golf Association had to drop its then rule that barred the use of golf carts in major tournaments, on the ground that this breached the federal anti-discrimination law. Scalia, disputing the majority’s view on whether professional sporting contests were caught by that statute – an issue that is beyond dispute in Victoria – had this to say on the resulting task for the Court:
[W]e Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U. S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
The Victorian issue isn’t in the same terms, but one argument the AFL (or Victoria, if there’s a difference) might want to make is that single sex teams are part and parcel of footy. (Indeed, as Scalia points out, they could just change the game rules to make that a fait accompli. What rules could be changed to make a penis mandatory? Oh, if only I knew something about sport.) Perhaps Andrew Gaze (not to mention the Victorian community he consulted) intended to leave it the the Supreme Court of Victoria and the nuances of international human rights law to determine what is the essence of footy (and basketball and the rest.)