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Question 16

Discuss the natural justice process in sport tribunals. Should athletes at either domestic or professional level be able to have legal representation?
Natural justice process in sport tribunals
In sport tribunals as in courts the laws of natural justice are applied to ensure that an accused person is given the right to a fair trial. Healy (2009, 114) confirms this and outlines the laws of natural justice in relation to sport tribunals as “giving the accused person protection by asserting that: * The person accused of misconduct should know the nature of the accusation made; * The person should be given the opportunity to state his or her case; and * The tribunal should act in good faith.”
To further examine the natural justice process I will go into further detail of each of the above factors in relation to sporting tribunals.
Notification of Accusation
Once an organisation or association feels that there has been a breach of the rule or by-laws in which an individual is involved they must notify the accused in the correct manner to ensure procedure is adhered to with respect to natural justice.
The Australian sports commission website (aussport.gov.au) gives an outline on the correct procedure for notifying the accused as follows: * “The person accused should receive written notice clearly outlining the allegation/s in sufficient detail so as to allow the person to properly prepare and respond. The notification should outline the rule, regulation or policy they have allegedly breached, and any possible penalty that may be imposed. * The notification should provide the option for admission of the allegation/s and acceptance of the advised penalty (if applicable) by a specified date, avoiding the need for a tribunal hearing. * The notification should clearly outline the date, time, venue and compensation of the tribunal hearing. * The notification should clearly outline the expectations and rights of the accused, including any entitlement to legal representation.”

Opportunity to state case
The laws of natural justice require an accused person to have the opportunity to respond to the allegations which have been made against them. The accused must also be given a reasonable amount of time to prepare their case and provide witnesses who they feel will help them defend the allegations.
In addition to this ‘Under natural justice principles, a person should be given the opportunity to address the tribunal when the question of penalty is decided’ (aussport.gov.au). The penalty options that a tribunal can impose must be specifically outlined in the organisations constitution or by-laws.” It must also be noted that they penalty must be deemed to be fair and not excessive as an athlete may be able to challenge the penalty in court as a restraint of livelihood.

Acting In good faith
The laws of natural justice also ensure that a court or in the case of sports, a tribunal, must act in good faith. In basic terms to act in good faith the people comprising the tribunal which is hearing the case must do so with an open mind and not be biased in any way.

Conclusion
The laws of natural justice must be adhered to by sports tribunals without fail. If a sports organisation fails to ensure that an accused athlete or official is given the right to a fair hearing they open themselves to the possibility of a challenge to their findings in a court of law which may be both time and labour intensive and expensive. In addition to this there is the possibility that an athlete who is guilty of an offence will have the verdict overturned as a result of a court finding that natural justice was denied.
The laws of natural justice not only protect the accused and their right to a fair and un-biased hearing but when followed correctly protect a tribunal from having their findings and penalties challenged in court.

Should Athletes Be allowed legal representation in a tribunal?
Currently athletes at a domestic or international level do not necessarily have the right to legal representation at a tribunal hearing, instead is dependent on the rules outlined in the constitution or by-laws of each organisation. ‘If the rules of an association provide for legal representation, it should of course be allowed; if it is not, a breach of the rules has occurred’ (Disciplinary Hearings (Domestic Tribunals)). Healy (2009, 117) details that generally courts have refused to imply a right of legal representation where the rules of an association are explicitly against it.
The decision to either allow or deny legal representation is an interesting and important decision for each association to make, and one which must be given considerable thought. Is it fair for the accused not to have the option for legal representation in a hearing which could directly affect their ability to derive an income from their chosen profession for an extended period? In many of the more complex cases athletes may not fully understand the charges and implications of the tribunal especially in today’s sporting climate where athletes are turning professional at younger ages.
At the elite level I definitely feel that athletes should be given the right to legal representation because the consequences of being found guilty are so severe in respect to the large amounts of money which elite athletes are paid. Whilst it may open the association up to lawyers attempting to manipulate the tribunal system, a strong association will have provisions for this in the form of strong policies and by-laws which the tribunal adheres to. By doing this the association will limit the chance of their findings being successfully challenged.

Question 20
Discuss the difference between Waverley Municipal Council v Swain [2003] NSWCA 61 and Nagle v Rottnest Island Authority (1993) 177 CLR 423
The main difference I can detect between the two cases listed in the question relates to the presence of a risk warning in the form of a flag or sign to alert the public of the risk of injury.
In the Nagle v Rottnest Island Authority (1993) 117 CLR 323 case it became clear that there was no sign in the vicinity of the rock ledge warning of the dangers of submerged rocks to divers. As a result of this the Island Authority was deemed to have been negligent as it was found that had a sign warned of the dangers of diving at that location the injured party would not have dived. Furthermore Nagle was found to have taken due care by stating that he believed he had dived in an area which was past the submerged rocks.
During the hearing evidence was presented that led the judge to find that the dangers of submerged rocks were not visible to Nagle due to the reflection of sunlight from the water and as he had never been to the area before he would not have been aware of the inherent danger. This is confirmed by Dr Robert N Moles who states “The trial judge also accepted that an observer looking at the sea in the direction of the sun might well see a sun glint or glitter pattern as a consequence of the reflection of the rays of the sun. He found that, when Nagle dived into the water of the Basin, the glitter effect would have been visible to him and would have obscured his vision to some extent.”
As a result of the evidence presented the judge found that Island Authority was responsible for the injury to Nagle as the injury would not have occurred but for the failure of the Authority to correctly warn of the dangers.
In the Waverley Municipal Council v Swain (2003) NSWCA 61 case whilst there were flags present to indicate to swimmers the safest part of the beach to swim Swain still suffered a severe injury. Swain claimed the council had been negligent in it’s placement of the flags and that indeed by placing the flags there caused his injury as he felt there was no danger.
In the original case which was held before a judge and jurors they jurors it was found that the council had been negligent in their placement of the flags and that by not warning of the dangers that diving involved had caused the injury to Swain.
The case of Waverley Municipal Council v Swain (1993) NSWCA 61 was heard by the New South Wales Court of Appeal after the council appealed the original finding that it had breached its duty of care by way of negligent placement of flags and lack of warning.
Spigelman C.J et al. allowed the appeal finding that “There was no evidence capable of sustaining a finding that the Council was negligent with respect to its placement of the flags on the beach. There was no evidence that the Respondent relied on the flags as an assurance of safety with respect to diving. The risks of channels and sandbars on the ocean floor are obvious and inherent in the activity of diving near the shore (Waverley Municipal Council v Swain (1993) NSWCA 61).
In the initial trail the jurors found that Swain had linked the acts of negligence to his conduct, which lead to the injuries suffered. This formed the basis that the council had breached its duty of care and was therefore negligent.
A key aspect of the finding in the appeal case was that diving in shallow water brought with it an inherent risk which Swain knew of. Spigelman stated “The risks of channels and sandbars, such as those that caused the respondent's injury, close to the shore, are also well-known and can only be avoided by not diving or diving with care. When one dives into a wave over a channel close to the shore there is an inherent and well known risk of encountering a sandbar. Although a broken wave may obscure a channel and sandbar this does not mislead a swimmer who has surfed before. A sensible swimmer in that situation will either not dive into a wave or will make a shallow dive with little force and arms extended for protection. The dangers of doing otherwise are obvious.”(Waverley Municipal Council v Swain (1993) NSWCA 61)
The critical difference in these two cases is that it was found that Swain should have been aware of the obvious dangers of diving in shallow waters whilst it was found that the danger was not obvious to Nagle as he was unfamiliar with the area and visibility was compromised due to the glare from the water.
Spigelman et al. confirm this in the following excerpt “In Prast v Town of Cottesloe (2000) 22 WAR 474, 481-3, Ipp J referred to the distinction between the inherent risks of body-surfing and the risks in the "diving" cases such as Nagle v Rottnest Island Authority (1993) 177 CLR 423, where there were held to be hidden dangers which created a duty to warn. The risk of being dumped is inherent in body-surfing and well known and can only be avoided by avoiding waves that are dumpers.” (Waverley Municipal Council v Swain (1993) NSWCA 61)

Question 23
With reference to the law of discrimination discuss whether women should have a right to compete against men in various sports, in particular golf.

The issue of women competing against men within sporting competitions is complex in relation to the discrimination laws and has caused headlines in the past. It must also be noted that females have not only competed with males in certain sports, but have done so with success. Danica Patrick for example has had seven podium finishes including a first place in the male dominated Indy car series (racing-reference.info). The nature of the sport is the determining factor in whether a female is prohibited from competing against men, as Healy (2009, 210) explains:
“Although laws aimed at discrimination attempt to provide equal access and opportunities for men and women, exceptions are provided for some types of sporting activity. The sex discrimination act, for example, allows discrimination that excludes one sex ‘from participating in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’.
From that it is easy to come to the conclusion that associations have the right to preclude women from competing against men is sports such as athletics, football, rugby and gymnastics as it is clear that strength, stamina or physique play a significant part in those sports.
The confusing aspect of the above ruling appears when applied to certain sports in which it is hard to ascertain whether strength, stamina or physique is relevant to the success of competitors. A great example of this is golf as it is extremely hard to tell to what degree strength or physique effect the performance of the athletes, if they do at all.
I don’t pretend to be an expert on golf but it appears that each athlete relies upon a different skill set to be competitive. For example some drive the ball huge distances which would utilize strength and power however this doesn’t make them any more likely to be successful than an athlete who relies on accuracy both off the tee and in putting.
Whilst this should mean that women golfers can compete with men as Harwitt explains the few instances of women competing professionally against men have been underwhelming “The now-retired Annika Sorenstam, one of the great LPGA champions with 72 titles, including 10 majors, missed the cut the one time she crossed over to play the PGA Tour's Colonial tournament in 2003. And young Michelle Wie has entered the men's forum on numerous occasions; with the 2006 Asian Tour SK Telecom Open being the one time in 13 attempts she's made the cut.”
Whilst those results could cast doubt of women competing against men even if golf I don’t believe that women should be precluded from being allowed to compete by the anti-discrimination laws.
Because of the fact that golfers rely on different skills to be competitive I feel that it cannot be proved without doubt that strength, stamina or physique effect the overall performance of the athlete and therefore women should be able to compete against men provided they adhere to the same rules, such as tee-off distance.
In ten pin bowling, which may be considered similar to golf in that it cannot be proved conclusively that strength plays a role in the success of the athlete, Kelly Kulick became the first woman to win a men’s top line event. In 2010 she won the 45th Tournament of Champions beating world class male athletes. In an interview with Berman (2010) while conceding that her male opponents were often stronger, Kulick believes that her technique overcame that. Therefore it could be argued that strength was not relevant within that sport. I believe that the same argument could be used in golf to claim discrimination if a female was not given the same opportunities to compete in an event as a male counterpart.

Word Count: 2465

References http://racing-reference.info/driver/Danica_Patrick (accessed 12th February 2012).
Harwitt, Sandra. Women on the PGA Tour a challenge. http://espn.go.com/espnw/news-opinion/6534304/women-pros-women-pga-tour-challenge (accessed 12th February 2012).
Berman, John. 2010 .Bowling Down Barriers: Woman's Pro-Bowling Victory. http://abcnews.go.com (accessed 12 February 2012). http://www.vrlaw.com.au/cases/pdfs/200402231619540.swain.pdf (7th February 2012)
Dr Robert N Moles. Nagle v Rottnest Island Authority [1993] HCA 76. http://netk.net.au/Tort/Case4.asp (accessed 7th February 2012).
Tribunal hearing procedures. http://www.ausport.gov.au/supporting/ethics/complaint_management/fact_sheets/complaint_management/tribunal_hearing_procedures (accessed 1st February 2012).
Healey, Deborah. 2009. Sport and the law. Sydney NSW. University of New South Wales Press Ltd.

Disciplinary Hearings (Domestic Tribunals). http://www.leoisaac.com/law/law015.htm (accessed 1st February 2012).

Legal Authorities
Waverley Municipal Council v Swain (1993) NSWCA 61. http://www.vrlaw.com.au/cases/pdfs/200402231619540.swain.pdf (accessed 2nd February 2012).