The applicant seeks exemption to enable it to take certain measures to promote gender balance of students at its coeducational school. This is exemption is granted for a period of three years, to commence when the exemption is published in the Government Gazette. It is subject to the condition that, if there is gender balance at every year level in the applicant's school, the applicant must report this to the Tribunal. I now consider the law, and the material before me, and state my conclusions.
[2]
Under s83 of the Equal Opportunity Act1995 (the Equal Opportunity Act) the Tribunal has a broad discretion to grant exemptions from provisions of the Act to specified people or classes of people, specified activities or classes of activities or in specified circumstances. The exemption can be granted for a maximum period of three years and is also renewable again for a maximum period of three years.
Cases such as BAE Systems Australia Ltd[1]and Lifestyle Communities Ltd[2] say this about what is to be taken into account when considering an exemption application. The first question to ask is: is there possible discrimination involved? If there is not, there is no need to go further.
If there is, the correct approach is this. Section 83 gives an open-ended discretion to grant exemptions from the Equal Opportunity Act. The effect of granting an exemption is, under s12, to take the relevant conduct out of the Act's prohibitions. The purposes of the Equal Opportunity Act are, relevantly, (according to s3), to promote recognition and acceptance of everyone's right to equality of opportunity, to eliminate discrimination as far as possible by prohibiting it on the basis of various attributes, and to provide redress for its victims.
Under s32 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), statutory provisions like s83 of the Equal Opportunity Act must, so far as is possible consistently with their purpose, be interpreted in a way that is compatible with human rights. Section 38(1) makes it unlawful for a public authority to act in a way that is not compatible with human rights or, in making a decision, to fail to give proper consideration to a relevant human right. In the Lifestyle Communities case, his Honour Bell J held that VCAT is a public authority when it deals with exemption applications under s83 of the Equal Opportunity Act.
All of this means that the Charter requires s83 of the Equal Opportunity Act to be interpreted in a human rights-compatible way, and it also requires VCAT when considering exemptions under s83 to exercise its discretion in a human rights-compatible way. As was pointed out in the Lifestyle Communities case, there is no inconsistency between the purposes of the Equal Opportunity Act and the Charter of such a kind that would prevent s83 of the Equal Opportunity Act being interpreted in a human rights-compatible way. The question is, how does the Charter apply to the proposed exemption?
In answering this question, we must ask, what human rights are possibly engaged? We must next ask, does the proposed conduct represent a limitation on those human rights which is justifiable in the terms of s7(2) of the Charter? The effect of s7(2) is that human rights can be subject only to 'such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom'. All relevant factors must be taken into account, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve the purpose of the limitation.
[3]
I now deal with the material before me. I have heard submissions from Ms Anderson, the solicitor for the applicant. I have two affidavits from Mr De Young, Carey's principal, and I have heard some evidence from him as well. His affidavits exhibit a number of documents.
At the Tribunal's direction, Carey advertised this application on its website and on its senior school notice board and in newsletters distributed to the families of its students. Neither VCAT nor Carey have received any comments on the application.
Carey is an independent church school established in 1923, initially for boys only. In 1979, the school as a whole chose to pursue a coeducational philosophy. This was something which was agreed to by the school's top management, its teachers, its other staff and its parents and student body. The decision was based on the school's belief that coeducation was an appropriate philosophy for it to follow. Coeducation will work best if there are approximately equal numbers of students in the relevant classes. If, for example, boys predominate over girls one group will 'swamp' the other and the benefits of coeducation will be either diminished or lost. Some of those benefits are the opportunity to gain knowledge and understanding each sex of the other and to appreciate both the similarities and differences between the sexes, including differences in ways of thinking. This results in enrichment of understanding. There are also benefits of relationship and increasing self confidence in relations between the sexes. A coeducational school is a microcosm of the broader community, that is, the community outside the school and the community into which, at the end of their education, each student will go.
All of these matters have been mentioned in previous decisions in relation to the exemptions granted to Carey from 1997 and they still apply. Carey's concern is that if the current exemption application is not granted, coeducation at the school will be compromised because the school will no longer be able to ensure that a roughly equal gender balance at each year level exists.
The current position as far as gender balance is concerned at the school is this. As at 2009, the total percentage of female students at Carey is 48 per cent. That has risen from 34 per cent in 1997 when the first exemption was granted. But the picture is very different when one looks at each of the year levels. These present a far more inconsistent and variable set of figures. A 50 per cent gender balance was achieved (for example) at the year 7 level in the years 2007 and continued in 2008 and 2009. In the year 10 to 12 levels, the percentage of female students has increased from 32 per cent in 1997 to 47 per cent in 2009. But the junior campus at Donvale still has significant gender imbalances. For example, in 1997 in prep, 38 per cent of students were female and in 2009 that percentage was 37 per cent.
There are much closer percentages to a gender balance in other years, and this has meant that when one looks at total numbers at the junior school at Donvale in 2009, there is a percentage of 46 per cent of girls. Over the years and despite there being some gender imbalances, the year levels have varied considerably. For example, at the year 1 level in 1997, there were 53 per cent girls, but in 2009 there were 42 per cent. At the year 2 level in 1997 there were 40 per cent girls, while in 2000 there were 57 per cent. But in 2009, there were 47 per cent. In the prep year (which I have earlier mentioned), 38 per cent in 1997, in 2005, 62 per cent and in 2009, 37 per cent. At the year 3 level, in 2001, 27 per cent were girls and in 2008, 53 per cent were girls. In 2009 that percentage was 45 per cent.
The junior campus of the school at Kew presents a more consistent picture, but still with some fluctuations. For example, at the year 4 level in 1997, there were 34 per cent female students. In 1999 and 2001, that percentage was 49 per cent. In 2009, that percentage was 44 per cent. The middle school and senior school at Carey show a far more consistent picture across the year levels.
The waiting lists at Carey at 'critical intake' year levels still include far more boys than girls. For example, in the 2010 waiting list for year 7, 10 per cent of applicants were girls. For year 10, 32 per cent of applicants were girls.
The school has been able to improve the gender balance across various year levels so that there is not a swamping of one group by another. I have spoken already about the total numbers. The school has been able to do this by preferring girls to boys on its waiting list when necessary, and by offering bursaries and scholarships to girls, and also by advertising the school in a way to make it appeal to girls in particular as a coeducational environment. I accept the evidence of Mr De Young that one reason for the large number of boys compared to girls on the school's waiting list is a view held by some parents in the community that coeducation is more advantageous to boys than girls, and that education in a single sex school is better for girls. I also accept his evidence that if the exemption were not in place, the measures for encouraging girls to come to the school would be compromised. There would be likely to be a flood of boys on the waiting list. There would be a growing majority of boys to girls across the various year levels of the school, and the school's coeducational model might fail. I accept that the school is strongly committed to its coeducational model. I also accept that within the school, putting bursaries and waiting lists aside, there is no discrimination between boys and girls. All have equal access to educational and other activities offered by the school.
[4]
I agree with Carey's submissions that it should be, and for three years. The proposal involves possible prohibited sex discrimination. It is not covered by any express exception in the Equal Opportunity Act.
How does the Charter apply to the proposal? What human rights are engaged? In my view, the human rights engaged are those under s8(3) of the Charter to equality before the law, to have equal protection of the law without discrimination, and to have equal and effective protection against discrimination.
Carey submitted that s8(4) of the Charter applied to its proposal. Under that provision, 'measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination' do not constitute discrimination. In other words, those rights under s8(3) to protection against discrimination and equality before the law without discrimination do not apply to these measures. I am not satisfied that s8(4) applies to this proposal. I do not see how it fits in the framework of s8(4). Carey has not demonstrated how it is that (presumably) girls suffer from disadvantage caused by some kind of sex discrimination in their education, to remedy which this measure is designed.
Is this proposal justifiable within the terms of s7(2) of the Charter? I agree with Carey's submission that it is. The human rights possibly engaged here are important. What underlies them is the promotion of respect for the individual, individual dignity, and individual participation in society. The limitation on these rights represented by this proposal is also important. It is aimed to provide choice in education. It is aimed to ensure that the coeducational experience which this school has chosen to provide continues to be viable and to benefit both sexes. This is not a matter of commercial advantage. The limitation does not affect access to education and school facilities by boys and girls once they have entered the school. It is only directed at entry to the school. The limitation is connected to and proportionate to its purpose. In my view, there is no less restrictive way to control the number of boys entering the school so as to prevent the number of boys in the school being so great that the girls are swamped and coeducation for both sexes is undermined.
The school seeks to provide for all its students an educational experience which mirrors society as a whole, and enables relationships to develop between the sexes and an understanding of both their differences and their similarities. The school seeks to give this opportunity to all alike, and does not seek to discriminate in that sense between girls and boys. But this coeducational environment exists and works best if the gender balance is roughly equal. Although the overall gender balance at the school is improving in the sense of becoming more equal, the gender balance across year levels is still not equal and fluctuates considerably from year to year. I can see no other less restrictive way of achieving the same result. The exemption is still necessary and needed. Its aim is to prevent students of one sex from swamping the other and so destroying the school's ability to coeducation for all.
[5]
My conclusion is that the exemption is granted. I have said that it operates for three years from publication in the Government Gazette. It will be subject to a condition that Carey must advise the Tribunal in writing if there is achieved a gender balance across all year levels of the school. If this were the case, the Tribunal should then have the opportunity to consider whether the exemption should be revoked, because its purpose would have been achieved.
I make one other final comment. This exemption, including renewals, has now been in force for some 12 years. With the extension I have granted, it will be in force for another three. While s83 allows exemptions to be granted for up to three years, and renewals to be granted for up to three years, it ought not to be assumed that a renewal will be granted forever. Indeed, that would be to turn the exemption into something more like one of the express exception provisions in the Act. The exemption needs to be considered on each renewal to see whether it remains appropriate and necessary for its purpose. It may be that eventually the school might need to decide whether it should persevere with its current coeducational approach, or perhaps adopt some different approach. But I express no concluded view on these matters.