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Complaints

Exemption: Catholic Education Office

Legal

Notice of inquiry: Application
for exemption under Sex Discrimination Act section 44: Catholic Education
Office Scholarships for Male Trainee Teachers

The Catholic Education
Office, Archdiocese of Sydney applied on 30 August 2002 (with a supplementary
application dated 16 October 2002) to the Human Rights and Equal Opportunity
Commission for temporary exemption under the Sex Discrimination Act
1984 ("SDA"), section 44, to offer teacher training scholarships
to male students only.

The proposed scholarships
are to be limited to male students completing their Higher School Certificate
in 2002. The scholarships, providing financial support and incentives,
aim to encourage male students to enroll in Primary Teacher training at
University for the 2003 academic year. Male students accepting the scholarship
would commit to working within Catholic primary schools for a fixed period
following completion of the teaching degree.

An exemption is sought
in respect of sections 21(2)(a) and 22(1) of the SDA. Section 21(2)(a)
prohibits an educational authority from discriminating against a student
on the grounds of the student's sex, marital status, pregnancy or potential
pregnancy by denying the student access, or limiting the student's access
to any benefit provided by the educational authority. Section 22(1) prohibits
a person from discriminating against another person on the grounds of
the latter person's sex, marital status, pregnancy or potential pregnancy
by refusing to provide goods or services or make facilities available,
or in the terms or conditions on which the goods, services or facilities
are provided, or in the manner in which the goods, services or facilities
are provided.

The exemption is
sought for a period of five years. The Catholic Education Office has indicated
that the provision of male-only scholarships may form part of a longer
term strategy to encourage males into primary teaching and that its impact
may not be immediate. The advertising of scholarships in 2002 may result
in increased male applicants in subsequent years.

HREOC's policy in
dealing with applications for exemptions under the SDA is that interested
parties should be given an opportunity to participate where the application
presents issues of public importance.

Accordingly, submissions
in response to this application are sought by 3 December 2002.
Submissions should preferably be made in electronic format, and may be
made to exemptions@humanrights.gov.au.

Submissions may also
be made to:

Sex Discrimination
Unit, HREOC

GPO Box 5218

Sydney NSW 1042.

The following discussion,
and questions posed in the course of that discussion, may assist persons
considering making submissions.

Exceptional nature of exemptions

As indicated by HREOC's
published policies on exemption applications, the power for an administrative
body such as HREOC to grant exemptions from laws established by the Parliament
is exceptional, and should only be exercised where clear justification
is shown. This is particularly the case since exercise of this power under
the SDA is not subject to disallowance by the Parliament, unlike powers
provided under many Acts of Parliament to modify the effect of those Acts
by later regulation.

HREOC is nonetheless
bound to consider applications for exemption on their merits and will
grant exemptions where it is satisfied that this is appropriate. Inappropriate
refusal, or granting, of an exemption by HREOC is subject to review by
the Administrative Appeals Tribunal on application by any interested party.

Summary of questions to be
addressed

To assist HREOC in
its consideration of this exemption application, submissions are requested
on the following issues (discussed in more detail later in this notice):

  • Is there an arguable
    case of unlawful discrimination should an exemption not be granted?
  • Would an exemption
    in this case be consistent with the objects of the SDA?
  • Should an exemption
    be granted irrespective of consistency with the objects of the SDA?
  • Are there conditions
    which should be imposed on the granting of an exemption in this matter?

Overview

HREOC's policy on
exemptions under the Sex Discrimination Act states:

While all applications
for a temporary exemption are considered on their merits, the circumstances
in which it will be necessary or appropriate to grant such exemptions
will be limited. This is because any exemption must be consistent with
and not undermine the objects of the Sex Discrimination Act.

The most relevant
object is that of eliminating discrimination as far as possible, on the
ground of sex.

As indicated in HREOC's
published policy, the circumstances where granting an exemption from the
operation of legislation will promote or be consistent with the objects
of that legislation will be limited. However, such circumstances may arise.

Temporary exemptions
under the SDA have rarely been granted.

Is there an arguable case
of unlawful discrimination should an exemption not be granted?

HREOC, in common
with decision makers exercising comparable powers under other Australian
anti-discrimination laws (see for example the decision of the Victorian
Equal Opportunity Tribunal in Re Doveton North Primary School) will not
grant an exemption where it is unnecessary - that is, where there is not
at least an arguable case that unlawful discrimination will otherwise
be found.

Comments are requested
on whether there is a substantial risk of the provision of scholarships
to male students only being found unlawfully discriminatory so as to justify
an exemption under the SDA.

Would the exemption sought
be consistent with the objects of the SDA?

The Catholic Education
Office has suggested that the granting of an exemption in the terms sought
would be consistent with the objects of the SDA, namely section 3(d) which
provides that the SDA has as an object the promotion of the "recognition
and acceptance within the community of the principle of the equality of
men and women". The proposed provision of scholarships to males only
is a measure which the Catholic Education Office believes will address
the imbalance between males and females in the primary teaching profession.
According to statistics quoted by the Catholic Education Office in their
application, male primary school teachers in NSW and ACT schools numbered
937 (18 per cent) compared to 4265 females in 2001.

The constitutional
foundations of the SDA include the Convention on the Elimination of
All Forms of Discrimination Against Women ("CEDAW"). Moreover,
one of the SDA's objects is to give effect to certain provisions of CEDAW
(section 3(a)). Article 10 of CEDAW obliges States Parties to take all
appropriate measures to eliminate discrimination against women in order
to ensure them equal rights with men in the field of education, and in
particular to ensure that women receive the same opportunities to benefit
from scholarships and other grants (Article 10(d)).

An issue which arises
is whether the Catholic Education Office's proposal to provide scholarships
for males only contravenes the express words of paragraph (d) of Article
10 of CEDAW.

In considering that
issue, it may be relevant to consider whether offering scholarships to
male students only to study primary teaching at university will have the
effect of increasing the number (and proportion) of male primary school
teachers in the longer term. It may be that the successful recipients
of such scholarships are male students who would have undertaken primary
teacher training regardless of the existence of the scholarships.

The Catholic Education
Office suggests that the proposed scholarships may fall within the scope
of section 7D of the SDA as a special measure intended to achieve equality.
It suggests that the provision of scholarships to males only is a "strategy
to attempt to address the specific imbalance between the proportions of
male and female teachers in primary schools".

A special measure
is a type of affirmative action. Affirmative action may be defined as
the systematic identification and elimination of the institutional barriers
that women and other groups affected by structural disadvantage encounter
in areas of public life.

Comments are requested
on:

  • The underlying
    causes of the imbalance between males and females in the primary teaching
    profession. In particular, the Commission seeks submissions regarding
    any relevant survey information, information regarding the wage levels
    for primary school teaching as compared to other professions and other
    statistical material that might assist the Commission to better understand
    that issue.
  • Whether the proposed
    scholarship scheme will, in fact, have the effect of increasing the
    number of males in the primary teaching profession. Submissions on this
    issue might address studies or outcomes of any similar schemes. A consideration
    of this issue may, in part, require an assessment of the value of the
    scholarships to be offered. The value of the proposed scholarships is
    not addressed in the temporary exemption application and the Commission
    specifically invites the Catholic Education Office to address that matter.
  • Whether the proposed
    scholarship scheme falls within section 7D of the SDA as a special measure
    intended to achieve equality; and
  • Whether granting
    an exemption in this matter would be consistent with the objects of
    the SDA.

Should an exemption be granted
irrespective of consistency with the objects of the SDA?

If an exemption in
this matter is not regarded as consistent with the objects of the SDA
it would still be necessary to consider whether an exemption should nonetheless
be granted. Although HREOC's policy is that exemptions as an exercise
of statutory power should be consistent with the objects of the enabling
Act in each case, HREOC is also required to consider each applications
on its merits.

The Catholic Education
Office, in its application, refers to two reports which contend that the
presence of male teachers is important in creating a school culture that
values learning and the pursuit of knowledge equally by males and females
and that the reduced numbers of male teachers has wide-ranging educational
and social ramifications.

Comments are requested
on whether (assuming that the exemption sought is not consistent with
the objects of the SDA) HREOC ought to grant exemptions from the SDA in
this matter on the basis that the objective of the male-only scholarships
ought to be given precedence over the terms, or over the objects of the
SDA.

Are there conditions which
should be imposed on the granting of an exemption in this matter?

Section 44 of the
SDA permits HREOC to impose conditions on the granting of a temporary
exemption. An exemption on conditions may be consistent with the objects
of the legislation where an unconditional exemption would not. For example
in a number of cases HREOC has granted exemptions under the Disability
Discrimination Act 1992 to public transport operators on condition
that the operator agree to and implement actions to increase access for
people with disabilities during the life of the exemption.

Comments are requested
on what conditions, if any, may be appropriate to impose if an exemption
in this matter was granted under the SDA.

 

Last
updated 11 November 2002.