Judgment Delivery - Transcript of Video
Ferneley v The Boxing Authority of New South Wales  FCA 1740
10 DECEMBER 2001
[Justice Wilcox sitting at bench inside court room]
Justice Wilcox: The Boxing and Wrestling Control Act of New South Wales makes it a criminal offence for an unregistered person to participate in a boxing contest, a term defined in the Act to include virtually all boxing contests, displays and exhibitions involving monetary reward. The Act sets up a registration regime that registration is available only to males over 18 years of age. There is no way in which a woman may become registered under the Act, or lawfully engage in a boxing contest in New South Wales.
The applicant, Holly Ferneley, is a professional kickboxer. She lives in Sydney but has to go interstate or overseas for kickboxing bouts. The bouts are always against women, never men, and are controlled by organisations such as the International Sports Karate Association. Ms Ferneley sought registration under the New South Wales Act. However, because she is female, the boxing control authority of New South Wales refused to consider her application.
Ms Ferneley says that this conduct infringed the Commonwealth Sex Discrimination Act. She brings this action to obtain declarations of right and money damages. It is important to emphasise that the question I have to decide is whether the Boxing Authority’s conduct breached the Sex Discrimination Act. It is not my task to decide whether professional kickboxing should or should not be allowed, or whether women should be permitted to participate in kickboxing contests. I do not express any opinion about those matters. I am concerned only with the legal questions that turn on the proper interpretation of the Sex Discrimination Act.
The Sex Discrimination Act contains a provision section 18 that makes it unlawful for an authority in power to confer an occupational qualification to discriminate against a person on the ground of that person’s sex. If that provision bound the Boxing Authority, it clearly would make the Boxing Authority’s conduct unlawful. The only reason why the Authority refused to consider Ms Ferneley’s application was that she is female. However, section 18 is not binding on state governments, and the Boxing Authority is an instrument of the New South Wales Government. So section 18 does not assist Ms Ferneley’s case. Recognising that, her counsel placed reliance on section 22 of the Sex Discrimination Act, a section that does bind state governments.
Section 22 outlaws sex discrimination by people who provide goods or services or make facilities available. [Scan of the court room including the public gallery. Back to close up of the judge.] The argument for Ms Fernely is that consideration of an application for registration under the Boxing and Wrestling Control Act is a service, so the Authority’s refusal to consider Ms Ferneley’s application was a breach of section 22. The problem about that argument is that it is impossible to read the general words of section 22 as extending to the special case dealt with by section 18. Although section 18 does not bind state governments, it is part of the Sex Discrimination Act and must be taken into account in interpreting other parts of it.
A subsidiary issue was raised by counsel who appeared for the Boxing Authority and the New South Wales Government. They said that if section 22 did apply to a qualifying body like the Boxing Authority, it would be excluded in the present case by section 42(1) of the Sex Discrimination Act. That subsection overrides various provisions of the Act, including section 22 insofar as they exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors was relevant. Strength, stamina and physique are relevant to boxing including kickboxing.
The Sex Commissioner, appointed under the Sex Discrimination Act, intervened in the case in order to argue that section 22 has no application to same sex sports. She said it applied only to mix sex sports where there might be a need to protect women against their disadvantage as compared with men, in strength, stamina or physique. I think this argument is correct. However, as section 22 does not cover this case, the Boxing Authority’s conduct does not contravene the Sex Discrimination Act. Accordingly, Ms Ferneley’s claim must fail.
I make the following orders:
I publish my reasons for judgment. They will be immediately available on the court’s website as judgment no. 2001 FCA 1740.
I’ll adjourn now for a few minutes. [Fades out]