Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247

The Victorian Civil and Administrative Tribunal has considered an application pursuant to section 83 of the Equal Opportunity Act 1995 by Wesley College. The application for exemption is to enable the applicant to advertise for prospective female students to enter the school, and to structure its waiting lists, allocate student placements and other bursaries and enrolments targeted at prospective female students so as to promote a gender balance of the students at the school, and to advertise those matters (the exempt conduct).

UPON READING the material submitted in support of the application and on hearing submissions from Ms Stynes of Counsel, Dr Drennen (Principal of the College) and Mr McAree, Director of Wesley College, and for the reasons for decision given orally on 26 February 2010, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 37, 42, 100 and 195 of the Act to enable the applicant to engage in the exempt conduct.

The Tribunal hereby grants an exemption to the applicant from the operation of sections 37, 42, 100 and 195 of the Equal Opportunity Act 1995 to enable the applicant to engage in the exempt conduct.

This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 3 March 2013.

This exemption is subject to the condition that the applicant must, as soon as possible, advise the Tribunal if, at every year level and in every campus of the college, there is a gender balance of male and female students.

Ms Stynes of Counsel with Dr Drennen (College Principal) and Mr McAree (College Director)

1. The exemption is granted in the terms sought. It is granted for three years and will operate from the date of publication in the Government Gazette. I briefly state my reasons.
2. The applicant (which I call 'the College') has applied under the Equal Opportunity Act 1995 (the EO Act) for exemption from various sections dealing broadly with discrimination in education, discrimination in the provision of services, asking questions which might form the basis of discrimination, and discriminatory advertising. Broadly, it seeks the exemption to enable it to advertise for prospective female students, to structure its waiting lists and offer placements, enrolments and bursaries targeted at prospective female students, and to advertise all of these matters. The application has been advertised at the direction of the Tribunal and no adverse comments have been received either by VCAT or by the College.
3. The College had previous exemptions which lasted from 1998 to 2004 in respect of this conduct. After that, I am satisfied that by an oversight, no further exemption was sought until now. That oversight was discovered in November 2009 and given that the school holidays have intervened, it has been corrected without delay.
4. The purpose of the exemption is to enable the College to promote coeducation. The College has been committed for many years to the coeducational model. This is very clear from the powerful submissions made by the College's current principal, Dr Drennen. The College believes that coeducation is in fact a microcosm of society. Society is not single sex, but mixed gender. In the coeducational environment, children will be able to understand better differences and similarities between the sexes. After all, when children complete their education, they go into a mixed gender environment.
5. The College believes that coeducation is the best way in which children can learn the differences and similarities in the sexes, how to appreciate these, how to interact with each other, how to socialise appropriately, and the similarities and diversities of thinking and ways of seeing the world that are apparent between the sexes. The College believes that the coeducational environment is enriching and that it ultimately enables both sexes better to respect each other's equality and dignity, and enables them better to prepare for what will be their adult life in a mixed society.
6. All these things I have said in decisions in relation to similar applications made by other schools, such as Carey Baptist Grammar[1]. But I accept that coeducation will not work if the gender balance of the school is not roughly equivalent. If the balance is skewed either to boys or to girls, one gender will tend to 'swamp' the other and the whole of the coeducational experience will be destroyed for all. Again, this is what Dr Drennen's evidence is.
7. The initiatives embodied in the exemption proposal are aimed at intake, at applications and enrolments. This is because this is where the disparity between boys and girls occurs. If students were simply chosen from enrolment lists in order of application, there would in this College be a huge majority of boys, and the coeducational experience would fail. It seems from Dr Drennen's evidence that one of the reasons for this disparity is a view in some of the community that coeducation is good for boys, but single sex education is good for girls. I accept that this attitude is beginning to change, particularly because there is now a cohort of women who have gone through the coeducational experience at the College and who wish to send their children to that College for that experience, not only their sons but their daughters too.
8. It is also because there is a substantial intake into the College at the year 10 level. In current society, children at this level have very strong views about what school they want to attend, and their parents now listen. These students now express a preference for coeducation, even though they may have come from a single sex education environment.
9. In deciding the exemption application, I have adopted the approach followed by Justice Bell in the Lifestyle Communities decision[2] and look first at the Charter of Human Rights and Responsibilities Act 2006 (the Charter). Under s38 of the Charter, the Tribunal (as a public authority when exercising its functions in this jurisdiction) must not, in making a decision, fail to give proper consideration to a relevant human right. Under s32, s83 of the EO Act and the discretion which it gives must be interpreted in a human rights-compatible way. What Charter rights are possibly engaged? In my view, these are the rights under s8 of the Charter: the right to equality before the law, to equal and effective protection against discrimination, the right to enjoy human rights without discrimination and to equal protection of the law without discrimination.
10. Does the suggested exempt conduct involve a reasonable limit on those rights, a limit which can be demonstrably justified in a free, democratic society based on human dignity, equality and freedom? In looking at this question, I take into account the factors in section 7(2) of the Charter. Here, the nature of the rights in s8 is important. They give basic equality before the law, and basic protection against discrimination. But the purpose of the limitation represented by the exempt conduct is also, in my view, very important. It is to enable children to experience coeducation, to have educational choice, to prepare for a mixed gender society, and to learn to better respect the equality and dignity of each sex. The limitation is proportionate to that purpose. It does not seek to achieve a majority of girls over boys or vice versa. It simply seeks to achieve a gender balance so that coeducation can succeed.
11. I am satisfied that there is no less restrictive means of achieving this purpose. The school's material in support of the application lists various initiatives such as advertising to encourage girls to attend, and advertising promoting the coeducational model. But these initiatives cannot change the majority of boys who are on the waiting list and who, if applications were accepted in the order in which they were made, would predominate. I am satisfied that the exempt conduct represents a reasonable limit on the human rights in the Charter.
12. For similar reasons to those I have just mentioned, I am satisfied that in terms of section 83 of the EO Act, the interests of the exemption justify taking it out of what might be possibly prohibited discrimination under the Act. It is the effect of an exemption to do this. An exemption takes conduct out of the Act's prohibitions.
13. For these reasons, I grant the exemption. It is clear, I should add, that a gender balance has not yet been reached, but I make some concluding comments about this matter.
14. As I said in the Carey exemption decision, exemptions of this nature under the EO Act last for a maximum of three years but may be renewed from time to time. But it should not be assumed that renewals will be granted forever. In effect, this would turn what is a discretionary and relatively temporary exemption into a permanent exception from the Act. This is not, in my view, what section 83 intends. So, when seeking renewal of an exemption of this kind, the school or college must think carefully and realistically about whether coeducation will ever be ultimately possible without the underpinning of an exemption, and if this is the case, whether the coeducational model should be changed or even discontinued, or whether some new set of initiatives should be tried. The longer an exemption lasts, the more renewals that have been given, the more likely it may be that what was once a reasonable limit on human rights will become an unreasonable limit. In this case, I am not satisfied that this time has yet come, and I am also satisfied that the College actively monitors ratios and its exempt conduct. I am satisfied that the current initiatives have kept coeducation viable at the College, and that there is a real prospect with growing intakes of girls (particularly at the year 10 level) that a gender balance will ultimately exist. On this basis, I consider that the exemption should be granted.

[1] [2009] VCAT 2221

[2] [2009] VCAT 1869