HIV & FOOTY - THE UMPIRE DECIDES
May 1999 |
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What’s
it about?
In the aftermath of ANZAC Day it is well to reflect that heroes do not always wear the
uniform of their country or compete on the international sporting stage. It is a term we
bandy around with too much ease, particularly when applied to AFL footballers. True, some
of these young men are dedicated to their clubs (and plenty are more attached to their
bank accounts!), but the high profile footballers ("Bomber's Hero Kicks 13" cry
the headlines) are also extremely well remunerated and the beneficiaries of endless
adulation.
Not so 27 year old Matthew Hall, a talented amateur
footballer for sure, but hardly a James Hird or Allan Langer. Matthew has made his mark on
the game in an entirely original manner, as the plain-spoken plaintiff in a landmark court
case that has landed him on the front page of world newspapers. Last year Hall launched a
legal action against the amateur football association that had refused to register him to
play because of his self-declared HIV-positive status. The association defended its
position, claiming that it had the right to refuse registration because of the danger to
its other players.
The
law
Let's take a look at the law, and the way it protects people
who complain about discrimination. Although there are different laws in each state, as
well as federal legislation, they share much in terms of the overall ability to lodge a
complaint about HIV/AIDS related discrimination.
In general disputes first go to conciliation, a way of trying to
work things out informally, before formal proceeding in various types of forums, usually
in a Tribunal. Does this mean the law is straightforward? Unfortunately not, although
partly this can be blamed on the nature of these types of disputes, which are often full
of ambiguities and the different perspectives of those involved - discrimination is often
in the eye of the beholder.
It should be understood that the various laws have not been passed
specifically to deal with the emergence of HIV. The laws rather deal with discrimination
based on disability or impairment, of which HIV/AIDS is but one.
You may be surprised at this - why is HIV a "disability"
or "impairment"? This is because legislation has been changed to specifically
deal with the presence of organisms causing disease. This is the case even if the
condition exists without overt symptoms, and so discrimination because of the existence of
this condition is unlawful.
Discrimination is not allowed on the basis of sex, marital status
and race in all the states, and so actions based on assumptions made about a person's
sexuality are also unlawful.
What is discrimination?
In Australia a person is legally discriminated against if they are treated less
favourably because of their status, for example, their sexuality, race, gender etc. It
usually doesn't matter whether the discrimination was intended, but rather whether the
discrimination in fact takes place.
Discrimination can also be "indirect" - this occurs
when a rule or a practice has a disproportionate effect on a particular class of people.
For example, a police force might have a general height restriction that applies before
you can successfully be considered as a member. Okay, you say, since the height
restriction applies across the board, how can that be discriminatory? Sure, but what about
women, who of course are statistically (generally) shorter than men? If the rule applies
across the board, then indirectly women are discriminated against, even though
that was not the intention.
Grounds
of discrimination
Okay, so there is a potential discrimination. Let's take the case of Hall, an amateur
footy player. Does that mean that people cannot be discriminated against anytime, anywhere
and under any circumstances? Certainly not, and neither should we want it to be so. If you
are the parent of a child and you decide, for religious reasons, that you prefer to send
your children to a religious school, are you guilty of discrimination? Yes, if you take a
strictly uncompromising point of view. But so be it, because as parents we want to be able
to make those sorts of decisions about our children's' education. So under the law that
type of discrimination is allowable.
So it is not enough to simply prove there has been
discrimination as such. You also have to prove that the discrimination took place in an
area that is covered by the law. Some of these areas include employment, education, the
provision of goods and services, accommodation, clubs and club members, and sport.
Now we begin to see where the discrimination against Matthew Hall
may have taken place. First, it is potentially discriminatory to treat someone with
HIV/AIDS less favourably; and this is not allowed in the area of sporting activities.
What
the Tribunal decided
As we said, it is illegal to stop someone participating in a sporting activity because
of a characteristic such as HIV/AIDS. So what argument did the amateur football
association present to defend their decision to exclude Hall?
Certainly there are circumstances that make otherwise illegal
discrimination allowable. For instance, it is permissible to discriminated on the grounds
of sex in employment because of a genuine occupational requirement - so it may be okay to
employ a man to clean male toilets during hours in which it is open to the public.
Similarly, it would not be illegal to restrict membership of a club that was solely
devoted to preserving a minority culture. And it is also permissible to allow
discrimination on the grounds that it is necessary to protect the health of other
participants in the activity. This is precisely what the amateur football association
argued.
The Anti-Discrimination Tribunal agreed that there was a statistical
risk of transmission of the disease to another player in the game, but the risk was so
small that it did not present a reasonable likelihood of any transmission. The Tribunal
could not confirm a single case of transmission of HIV anywhere in the world as a result
of a sporting activity, and suggested a rigorous application of the "blood rule"
would do the job a lot better than banning an HIV-positive player.
This seems to have been an eminently sensible resolution to the
case, and perhaps more importantly, has done much to educate the public and sporting
bodies about the realistic risks of transmission of HIV.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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