Frequently asked questions: Sport
See also our sport subject area page
- What does the DDA say about sport?
- Can people with infectious diseases be excluded from sport on health grounds?
What does the DDA say about sport?
Section 28 of the Disability Discrimination Act makes it unlawful to exclude a person from a sporting activity on the basis of a disability of the person or his or her associates.
This includes coaching and administration as well as selection and participation as a player.
There are however exceptions to this, if
- a person is not reasonably capable of performing actions reasonably required in relation to the sporting activity; or
- people who participate in the sporting activity are selected by a method which is reasonable on the basis of relevant skills and abilities; or
- a sporting activity is conducted only for persons who have a particular
disability and the person does not have that disability.
Can people with infectious diseases be excluded from sport on health grounds?
Section 28 and other anti-discrimination provisions of the DDA are subject to an exception for actions reasonably necessary to protect public health in relation to infectious diseases.
What is reasonably necessary will depend on the circumstances including the nature of the sport; how readily transmissible a person's infection is in those circumstances; and what preventive measures are available other than exclusion from an activity.
The DDA does not provide any detailed standards on what is necessary and therefore permitted. Interested parties should refer to resources from sports health experts , such as
- the material provided by the Victorian government Better Health Channel at http://www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/HIV_AIDS_hepatitis_and_sport
- and the "Blood Rules OK" resource from Sports Medicine Australia at http://www.sma.org.au/information/blood_rules.asp .
A useful discussion of what is meant by "reasonably necessary" is provided in the decision of the Victorian Civil and Administrative Tribunal in Hall v Victorian Amateur Football Association :
What is "reasonably necessary" is different from what is "necessary' and also from what is "reasonable". We do not take the view that the term "reasonably necessary" is meaningless, because the action is either necessary or it is not ... The test is not an absolute test. The ban need not be necessary in absolute terms, but must, on a reasonable judgment, be necessary for the specified purpose.The belief of the person who seeks to rely on s.80(1), at the time when the relevant conduct took place, as to whether or not the conduct was reasonably necessary for the specified purpose, and the enquires (if any) reasonably made by that person and the information reasonably available to that person about whether or not the conduct was reasonably necessary for that purpose, are also relevant. It is not enough if the respondent believes the ban is necessary for the specified purpose if the ban is not, on a reasonable judgment, necessary for that purpose.
In determining whether or not [the exemption] applies, all the circumstances of the case are relevant. In this case, the relevant factors can be set out as a series of questions as follows -
(1) What is the class whose health and safety are to be protected? What is the size of that class?
(2) What is the risk from which that class is being protected? What is the magnitude of that risk? What are the consequences to the class to be protected if the risk becomes reality?
(3) To what degree will the ban protect the health and safety of the class? Will it eliminate or reduce the risk to the health and safety of that class?
(4) Does the ban contain within itself any risk to the health and safety of the class?
(5) Are there measures currently in place to protect the health and safety of the class from that risk? Are they effective to protect the health and safety of that class from that risk?
Will the ban give that class a protection from that risk of a kind or degree that those current measures do not give?
(6) Are there non-discriminatory alternatives that will give the class protection from the risk that is equal to or better than the ban? If there are, is there any reason why it may be impracticable for the respondent to adopt these alternatives?
(7) Did the respondent, at the time of the ban, believe that the ban was reasonably necessary to protect the health and safety of the class? On what information or enquiries was this belief based? What information on the matter was reasonably available to the respondent?
These factors must be balanced against each other to arrive at a decision of whether or not, in all the circumstances, the ban is reasonably necessary to protect the health and safety of the class.
See also the discussion by Commissioner W.Carter in Beattie v Maroochy Shire Council:
What is reasonably necessary will depend on the circumstances of the individual case and, in the present context, will depend very much upon the present state of acceptable scientific knowledge and research in order to determine whether a particular act or decision can be said to be reasonably necessary to protect public health. If such a decision is made arbitrarily, or for irrelevant and improper reasons, then it clearly fails the test of reasonableness. On the other hand, it seems to me that if a decision is taken for the alleged purpose of protecting public health, that decision will be seen to be reasonably necessary for that purpose if properly qualified and appropriately experienced persons, after taking into account and balancing all of the relevant competing circumstances and by using and relying upon the results of current medical knowledge and research, decide honestly and with integrity that the particular decision needs to be taken in the best interests of the general health of the community. The test so formulated immediately rejects any whimsical, arbitrary or intellectually dishonest process of decision making. It necessarily involves the making of a decision which is professionally qualified, soundly based on appropriate expertise and scientific experience, and which is supported by valid objective criteria and which rejects irrelevant considerations in favour only of those which are designed to achieve the optimal result in terms of the public health of the community.