Victorian Civil and Administrative Tribunal|1999-08-31

Firbank Anglican School v Hilary Hunt [1999] VCAT 1354 (31 August 1999)

REASONS FOR DECISION ON THE APPLICATION FOR AN EXEMPTION

The background to this case and the evidence before the Tribunal have been set out substantially in the reasons for decision by Senior Member Wolters. In short, Firbank Anglican School ("Firbank") has applied, pursuant to section 83 of the Equal Opportunity Act 1995 ("the Act"), for an exemption from sections 37, 42, 100 and 195 of the Act for a period of three years in order to offer scholarships to Sandringham House for which only boys would be eligible to apply, to offer boys in grades 5 and 6 at Sandringham House additional financial and other incentives not available to girls and to advertise and to disseminate information about the scholarships and incentives.

The evidence establishes the following material facts :

1. Firbank was established in about 1909 as a school for girls between kindergarten and Year 12. It has a senior school campus (Firbank) at Brighton, a junior school campus (Turner House) at Brighton and a junior school campus at Sandringham (Sandringham House). Boys are able to enrol at Sandringham House only.

2. Sandringham House was acquired by Firbank in 1931 or 1932. It would appear that it was established as a school for boys and girls in the 1890s but it is not clear whether or not boys attended the school at the time it was acquired by Firbank.

3. In the early 1970s, boys were admitted to Sandringham House up to grades 2 or 4 depending on the school policy at the relevant time. It appears that in 1993 boys could enrol only from kindergarten to grade 2.

4. In 1993, Firbank school council decided that Sandringham House should become fully co-educational to year 6 from 1994 ("the co-education decision").

5. Sandringham House is a distinct and separate entity from Turner House and Firbank Senior School and has a separate Head Master who was appointed in 1993 with the responsibility to develop Sandringham House as a co-educational school.

6. Between 1991 and 1993 when the co-education decision was made, there was a drop in the number of pupils at Sandringham House from 200 pupils in 1991 to 125 in 1993.

7. Sandringham House does not have an optimal number of students and whilst there has been a small and gradual increase in students (except in 1996 when there was a drop from the previous year) the numbers have increased to only 162 by 1998. The maximum capacity at Sandringham House is 225 students.

8. Since 1993, there has been an increase each year in the number of boys attending Sandringham House (10 boys in 1993 compared with 57 boys in 1998) but the number of girls attending has either declined each year or remained the same, except in 1998 when there was a slight increase in the number of girls.

9. At the present time, 105 girls and 57 boys attend Sandringham House so that the proportion is 65% to 35% in favour of girls. There are no boys in years 5 and 6. In year 2 however, boys outnumber the girls in that there are 4 girls and 7 boys. The boys have outnumbered the girls in that same class since 1996.

10. The exemption, if granted, will assist Firbank in achieving equal or relatively equal numbers of boys and girls in years 4, 5 and 6.

11. There are no written expressions of philosophy or policy in relation to co-education at Sandringham House.

12. There is no compelling evidence that, at Sandringham House, Firbank has established clear practices which address the particular requirements of a co-educational institution. In this regard, Dr Munro was unable to identify any such practices save for some discussions between teachers and herself and teachers and the Head of Sandringham House in relation to co-education, the encouragement of teachers to embark upon professional development to assist them in working in a co-educational class room and some plans in relation to sports for boys.

Senior Member Wolters in his reasons for decision set out the principles by which the Tribunal has been guided in considering whether or not to grant an exemption (see in particular Stevens and Ors v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782).

Exemptions have been granted to co-educational schools by this Tribunal or its predecessor, the Anti-Discrimination Tribunal, in Re Wesley College (Exemption No 50 of 1998), in Re Carey Baptist (Exemption No 329 of 1997) and in Re The Knox School (Exemption No 77 of 1998). In The Knox School case, the school sought to advertise so as to attract female students to the school and to structure its waiting lists, allocate placements and offer bursaries targeted at female students to promote a more equal gender balance at the school. In granting the exemption, DP McKenzie noted that the school was founded in 1982 as a co-educational institution. This philosophy of co-education was part of its "original establishment philosophy" and she stated at p.7 of her reasons for decision :

"It seems to me that there is a public interest in granting this exemption and that it is consistent with the objectives of the Act, and that to emphasize and underline the co-educational philosophy of the school will, in fact, promote equality of opportunity in those who attend".

In the Carey Baptist case, President McKenzie as she then was, granted an exemption in relation to enrolment, placing and advertising bursaries directed to female students and she observed in her reasons for decision that the decision of the school to become co-educational in 1979 "was not made based on marketing considerations, it was based on very strongly believed educational philosophy".

In the Wesley College case, President McKenzie considered an exemption similar to the exemptions sought by Carey Baptist and The Knox School. At page 7 of her reasons for decision, President McKenzie stated that she was satisfied "that there is a broad overriding public interest in encouraging co-education of the kind which is now part of the school's philosophy, for the reasons and for the benefits which the school anticipates flows from co-education".

The central submission for Firbank in support of the application for the exemption is that in order to provide the benefits of co-education to boys and girls at Sandringham House, there needs to be an equal representation of boys and girls in later year levels, particularly years 4, 5 and 6. The granting of an exemption would assist in achieving that goal.

Furthermore, it was contended that, the present application is "on all fours" with the situation pertaining in the other school exemption cases (in the matter of Knox School, Carey Baptist and Wesley College) except that in this case an exemption is being sought in favour of boys and only in relation to one separate part of the school rather than to the whole school.

There are 3 major submissions made for Dr Hunt in support of her opposition to the exemption. Firstly, it is contended that Firbank has no serious commitment to co-education as demonstrated by the school's failure to articulate a co-educational policy. Allied to this is the fact that the activities at Sandringham House are integrated with the rest of the school which is not co-educational.

Secondly, the Tribunal is invited to find that the implementation of the co-education decision was due to economic factors rather than to a genuine commitment to co-education.

Finally, it was argued that there is no need for an exemption to be granted to the school as more extensive advertising, the offering of scholarships to boys and girls and a properly implemented co-educational policy would have the desired effect. For these reasons, it was contended, there are no overriding public interest considerations that would justify the granting of the exemption.

As to the first submission for Dr Hunt, I am not satisfied that Firbank's failure to formulate a written philosophy, policy or practices in relation to co-education at Sandringham House of itself establishes a lack of serious commitment to co-education at Sandringham House although it may indicate a somewhat unsatisfactory approach to the provision of a co-educational experience for the pupils at Sandringham House. Firbank made its co-education decision relatively recently, in 1993, unlike Wesley where co-education was introduced in 1978, Carey where it was introduced in 1979 and Knox which was established as a co-educational school from the outset. The decision was made only in relation to one junior school of a school that in its other campuses has a commitment to providing an education for girls only. Those circumstances and the general tenor of Dr Munro's evidence indicate that the school is still formulating and developing a philosophy in relation to co-education which in the words of Dr Munro "was a very new phenomenon at the school in the upper levels" of Sandringham House. It will be recalled that the Head Master of Sandringham House was appointed in 1993 with responsibility to develop Sandringham House as a co-educational school and it might be expected that Firbank's philosophy and practices in relation to co-education will evolve over a period of years.

I note in passing that the failure of Firbank to call the Head Master of Sandringham House did not assist the Tribunal in reaching a decision in this matter as I think it likely that he would have been able to provide some insight into the developments that have taken place at Sandringham House since his appointment.

As to Dr Hunt's second submission, it was Dr Munro's evidence that the co-education decision was not based on economic factors but on the necessity to address the wishes of parents of boys enrolled at the school. These parents desired that their sons should be able to continue to grade 6. Firbank also sought to address the drop in the numbers of boys in the lower levels of the school. This decrease in numbers Dr Munro said, was partly because parents saw only a limited future for their sons at Sandringham House. She said that the low number of boys at Sandringham House had a further negative effect in deterring parents from enrolling their sons at the school when there was a real possibility that those boys would be in the minority. She said the decision was based also on the views of parents of girls at Sandringham House. These parents wished their daughters to benefit from a primary co-educational experience.

I have reservations about Dr Munro's evidence that economic factors did not play a part in the co-education decision given the drop in the numbers of students at Sandringham House between 1990 and 1993 and the fact that the number of students at Sandringham House is and has not been optimal for some years. In the event, it is not necessary for me to make a finding in this regard as I am satisfied from the evidence of Dr Munro that the co-education decision was made at least in part in response to parents' wishes that Sandringham House become co-educational.

The final submission for Dr Hunt is that there are other alternatives to an exemption in obtaining parity of numbers. The material before the Tribunal is insufficient to allow a finding in this regard. As indicated earlier, however, I am satisfied that if the exemption is granted, Firbank will be assisted in achieving parity of numbers of boys and girls in the higher levels at Sandringham House.

This is not a case where it is patently clear that an exemption should be granted. In my view, the application can be distinguished from the school cases earlier referred to where the Tribunal was satisfied that the schools had developed a clear philosophy in relation to co-education. It is to be hoped that Firbank will put in place clear educational practices that will make Sandringham House attractive to boys in grades 5 and 6 for more than just the financial advantages that may be offered. It would also be desirable for Firbank to address the unequal numbers of boys and girls in year 2 where the girls are and have been for several years a significant minority.

I have formed the view, however, that by having parity of numbers of each sex at all levels, Sandringham House will be assisted in providing equality of opportunity for students to receive all the benefits of an educational experience that embraces the distinctive needs of each gender as well as meeting their common needs. On that basis, an exemption should be granted in the terms sought by Firbank for a period of three years.

Firbank Anglican School v Hilary Hunt [1999] VCAT 1354

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Firbank Anglican School v Hilary Hunt [1999] VCAT 1354 (31 August 1999)

Parties