Women’s safety needs consistency across portfolios. Minister Anika Wells argued for protection online, but left a practical question about female-only sport unanswered.
At the National Press Club on 15 October, The Hon Anika Wells MP argued that institutions must take responsibility for the environments they create. Online safety should be built into systems before harm occurs, she said, rather than leaving individuals to bear the consequences of unsafe systems. As Minister for Communications, she recognised that online environments are particularly unsafe for women. But when asked, as Minister for Sport, about guidance affecting female-only competition, her response did not extend that preventative reasoning to the concern put before her.
The two portfolios involve different laws and responsibilities. The point of comparison is the Minister’s approach to institutional responsibility: whether existing arrangements adequately protect women and girls, and what government should do when concerns about those arrangements are raised.
Online safety: institutions must prevent harm
“We must shift the burden from the shoulders of victims to the companies that are creating the environments where harms occur,” Minister Wells said. Her address repeatedly returned to the responsibility of organisations to anticipate risk, examine their systems and take reasonable steps to prevent harm.
She rejected reliance on voluntary improvement by technology companies. Platforms had had years to act, she said, and naming and shaming had not worked. In a later answer about protective technology, she explained that the Government wanted systems to be safe so that agencies were not left “cleaning up harm after it’s occurred”.
Women’s exposure to online harm received explicit recognition. Discussing abuse directed at the eSafety Commissioner, Minister Wells said, “It is testimony to the fact that online is not safe, and particularly, it is not safe for women.” She connected the digital duty of care with making that environment safer.
Her reasoning placed responsibility on institutions with the capacity to change conditions. Individual women should not have to carry the consequences of inadequate arrangements while those institutions rely on existing practices.
Clubs fear legal risk in maintaining female-only sport
The Women’s Advocate questioned the Minister on the Australian Sports Commission’s guidance for female-only categories in competitive sport. We noted that we have received reports that clubs are afraid to exclude males from female categories because ASC inclusion guidelines make female-only sport sound like a legal risk. We asked whether the Minister would use her power under section 11 of the Australian Sports Commission Act, to direct the ASC to tell clubs clearly when female-only competition is lawful.
“The ASC already does that work,” she replied.
Our follow-up question identified the practical difficulty. We argued that the guidance frames reliance on the competitive sporting exemption around excluding an individual, rather than explaining how clubs can maintain female-only categories under section 42 of the Sex Discrimination Act where strength, stamina or physique are relevant. We noted also the recommended process for clubs is burdensome when the operation of section 42 is discussed in the guidelines. Minister Wells responded that “there aren’t classes because each sport is different, and the requirements of physicality looks different for each sport” and that this required working individually with national sporting organisations and international federations.
Sport already organises competition into categories based on sex, age, weight and, in para sport, the effect of impairment on performance. The categories differ according to the sport. Recognising those differences does not prevent clear eligibility rules; it helps determine them. The Minister’s explanation therefore left the practical question unanswered: how should clubs assess the physical requirements of their sport and, where the statutory criteria are met, establish rules for female-only competition in advance?
In her communications portfolio, the Minister argued that existing arrangements were inadequate and institutions needed to change how they prevented harm, including harm to women; in sport, she pointed to the existing arrangements without explaining whether they adequately protect women’s participation. Her answer did not address the reported fear among clubs or the burden of the recommended process. Nor did she say whether she would direct the ASC to provide clearer guidance, or explain why the existing guidance was sufficient despite the concerns raised.
Clear guidance to protect female-only competition
The 2019 guidelines acknowledge the permanent competitive sporting activity exemption under section 42. They explain that it applies where competitors’ strength, stamina or physique is relevant, and that its application requires an assessment specific to the sport. The criticism, however, concerns how that legal provision is translated into practical advice for grassroots sports administrators.
On page 36, the guidelines frame reliance on the exemption as a departure from participation based on gender identity. They state that there may be circumstances where participation on that basis “alone is not possible”, and that a sporting organisation “may seek to rely on the competitive sporting activity exemption”. The recommended decision-making process is then framed around an organisation that “seeks to specifically exclude an individual” from competition.
The guidance also recommends an established, written and publicly available policy explaining how the exemption will be assessed; it therefore already contemplates advance preparation. That itself provides a basis for clearer advice about maintaining a female-only category before a dispute involving an individual arises. It does not, however, clearly explain how clubs should translate a sport-specific assessment into advance eligibility rules for a female-only category.
Guidance could explain how a club establishes that its activity meets the statutory criteria, records that assessment and incorporates it into eligibility rules. It could distinguish the assessment of a competition from the handling of a complaint about those rules. This would not remove every possible dispute or relieve clubs of their legal obligations, but it would help address the practical burden raised with the Minister. Clubs would have a clearer account of the conditions under which female-only competition is lawful, rather than having to assemble that understanding from advice principally framed around individual exclusion, legal risk and the possibility of volunteer-led, poorly funded and poorly resourced clubs facing discrimination complaints.
The preventative principle must apply across portfolios
The Minister’s preventative principle applies here too. Clear guidance should help clubs establish lawful female-only competition before an individual dispute arises. That would put institutional responsibility into practice: the ASC would provide a workable basis for decisions, rather than leave clubs to navigate uncertainty and women and girls to bear its consequences.
In her address, Minister Wells recognised that women face particular online risks and argued that institutions must change the conditions in which harm occurs. When concerns about female-only sport were put to her, she offered reassurance about the institution without addressing the conditions we described. Women’s protection requires the same serious consideration in both portfolios. Her answer did not explain how the ASC’s existing guidance provides it.
Read the full transcript of the exchange, below.