Unlawful discrimination

Discrimination has a significant effect on participation rates, performance levels and club morale. Each organisation should have in place a system whereby players, officials and spectators are made aware that the organisation does not tolerate unfair or discriminatory treatment, and have procedures to deal with complaints by people associated with the club. It is possible for a person (including an incorporated body) to be vicariously liable for discriminatory acts done by their employees or agents, unless the person can show that they took all reasonable steps to prevent it.

The Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act) makes it unlawful to treat people unfairly on the basis of personal characteristics such as gender identity, sex, age, race or religion. The full list of attributes that are covered are listed in s 7 of the Act. There are also a suite of Commonwealth laws that cover particular groupings of characteristics:

It may be possible that both state and federal legislation cover a particular instance of discrimination in which case a complainant must choose one to bring their complaint under. However, it is more realistic that only one or the other of the legislative schemes will apply in social sport or neither. The area of law is complex, and it is recommended that you consult the Discrimination and Human Right chapter.

One reason why it is complex is that discrimination is only unlawful in certain areas of life. For professional athletes, they may be able to allege that they were discriminated against in the employment area (e.g. on the grounds of religious beliefs). But for social athletes dealing with local clubs, the situation is more difficult.

Both state and federal legislation cover club membership and affairs, however, the meaning of ‘club’ is not always the ordinary meaning of the word and it is defined differently in both levels of legislation. For example, under the Queensland legislation, a ‘club’ is defined in sch 1 of the Anti-discrimination Act as an association formed for a sporting purpose, but it must also be carried on for the purpose of making a profit. Section 4 of the Commonwealth Sex Discrimination Act defines ‘club’ as a sporting association, but it must have 30 or more members, maintain its facilities from club funds and sell or provide liquor for consumption on the premises. The Disability Discrimination Act defines ‘club’ as an association (whether incorporated or unincorporated) of person for sporting or athletic purposes that provides and maintains its facilities from the funds of the association. The Racial Discrimination Act does not cover clubs per se.

Likewise, the provision of goods and services is also an area where discrimination is prohibited, but a sporting club is unlikely to fall into this category under Queensland law. Section 46 of the Anti-discrimination Act makes it clear that an association formed for sporting purposes does not provide goods or services. Therefore, a not-for-profit sporting association, for the purposes of the Queensland law, is likely neither a club nor providing goods or services (see David Yohan representing PAWES v. Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No. 2) [2010] QCAT 471).

However, the four Commonwealth Acts utilise the ordinary meaning of ‘providing goods and services’ or ‘providing access to facilities’. Hence these Acts can potentially cover local sporting clubs, even where the services or facilities may be provided without a fee. A person must not be refused the goods, services or facilities, or provided with them on less-favourable conditions, on the grounds of their attribute.

Only in the Disability Discrimination Act (s 28) is there a specific prohibition of discrimination in sport. This makes it unlawful to exclude a person from a sporting activity (which includes administrative and coaching roles, and probably officiating too) on the grounds of disability. However, it does not apply where the person is not reasonably capable of performing the actions reasonably required for the activity, nor does it apply where sporting participants are selected by a reasonable method relative to the sport and each other (e.g. selection trials for a football team).

It should be noted that the legislation also prohibits sexual harassment and racial vilification, and these are not limited to specific areas of life (see ch 3 for sexual harassment, s 124A for racial vilification, s 131A for criminal offences for serious vilification on grounds of race, religious, sexual orientation or gender identity (Anti-discrimination Act); pt IIA of the Racial Discrimination Act and pt 2 div 3 of the Sex Discrimination Act).

Exemptions to discrimination law for sport

In addition to matters discussed in the previous section, there are also specific exemptions in the legislation for sport. These allow sporting organisations to restrict participation in a competitive sporting activity to (s 111(1) Anti-discrimination Act and respective Commonwealth legislation):

  • either males or females (over the age of 12) if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity (s 42 Sex Discrimination Act)
  • people who can effectively compete (s 28(3) Disability Discrimination Act)
  • people of a specific age or age group (sport is not specifically mentioned in the Age Discrimination Act, but it could come under a general exemption for ‘positive discrimination’ in s 33)
  • people with a specific or general impairment/disability (s 28(3) Disability Discrimination Act).

Junior sporting organisations in particular must be aware of the application of these exemptions. Boys or girls under 12 cannot be prevented from playing a particular sport by reason of sex, and after age 12 only if the restriction is reasonable because of strength, stamina or physique requirements of the sport (Queensland law) or relevant (Commonwealth law). And importantly, there is nothing in the legislation that requires a sporting club or federation to discriminate on the grounds of sex (see Taylor v Moorabbin Saints Junior Football League and Football Victoria [2004] VCAT 158).

It is important to note that it is possible for a club or association to apply for an exemption from the Anti-discrimination Act (s 113) by applying to the Queensland Civil and Administrative Tribunal. Some female-only gymnasiums have utilised this option to ensure they comply with the legislation.