Roman Catholic Church: temporary exemption

HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION

SEX DISCRIMINATION ACT 1984 (Cth)

Section 44(1)

NOTICE OF GRANT OF
A TEMPORARY EXEMPTION

By this instrument, the
Human Rights and Equal Opportunity Commission (the “Commission”)
grants to the Trustees of the Roman Catholic Church for the Archdiocese of Sydney
(the “Trustees”) a temporary exemption pursuant to s 44(1) of the
Sex Discrimination Act 1984 (Cth) (the “SDA”), in the terms
set out in section 3 below.

1. BACKGROUND

1.1. The Catholic Education Office
(the “CEO”) applied, by letter to the Commission dated 30 August
2002, for a temporary exemption pursuant to s44(1) of the SDA in relation to
a proposal to offer teacher training scholarships to male students who completed
their Higher School Certificate in 2002.

1.2. On 27 February 2003
the Commission declined to grant the CEO a temporary exemption under s44(1)
of the SDA. A copy of the Commission’s decision of 27 February 2003 rejecting
that application is available on the Commission’s website at: http://www.humanrights.gov.au/legal/sda_exemption.html#catholic.

1.3. On 25 March 2003 the CEO filed
an application with the Administrative Appeals Tribunal (the “AAT”)
seeking a review of the Commission’s decision of 27 February 2003.

1.4. The Trustees, through its agency
the CEO, have made a new application, by letter to the Commission dated 18 March
2004, for a temporary exemption pursuant to s 44(1) of the SDA (“Exemption
Application”) in relation to the operations of ss21(2)(a) and 22(1) of
the SDA. A copy of the Exemption Application is annexed to this notice.

1.5. The Exemption Application is
made in respect of a proposal to offer 24 merit-based scholarships of equal
value to HSC students who enrol in Primary Teacher training at university. It
is proposed that of those 24 scholarships, 12 will be offered to male students
and 12 offered to female students.

1.6. The Exemption Application indicates
that the proposed 24 scholarships will be additional scholarships to the existing
scholarships currently offered by the Trustees and/or the CEO as an agent of
the Trustees. The Exemption Application also specifically states:

The offering of these
proposed scholarships will not impact upon the scholarships that are currently
offered by the CEO.

1.7. The exemption is sought for
a period of five years.

1.8. The CEO seeks to rely on the
material it provided to the Commission for the purposes of its initial temporary
exemption application and the material filed in the AAT proceedings. The Exemption
Application also refers to paragraph 3.34 of the Commission’s decision
of 27 February 2003. Paragraph 3.34 of the Commission’s decision of 27
February 2003 stated in part that:

“3.34 …
the CEO has not identified any reason why the scholarship scheme could not
be provided on a less discriminatory basis. A recommendation for such a scheme
was made in Boys: Getting it Right …, where it was stated:

The Committee recommends
that the Commonwealth provide a substantial number of HECS-free scholarships
for equal numbers of males and females to undertake teacher training. These
would be based on merit… ^[1]

Further in paragraph 3.35
of its decision of 27 February 2003 the Commission stated that:

3.35 In light of
the above, it is the Commission’s view that the exemption sought is
unreasonable in that the discriminatory effects that would be caused by the
proposed scholarship scheme outweigh the reasons advanced in favour of the
exemption…”

1.9. The CEO submits that, consistent
with the Commission’s decision of 27 February 2003, the proposed scholarship
scheme is less discriminatory than the scheme proposed by it in its initial
temporary exemption application and accordingly, the CEO submits that the proposed
scheme is more likely to satisfy the test of reasonableness.

2. REASONS FOR DECISION

2.1. The Commission’s
reasons for its decision are based on the following material before the Commission:

2.1.1. The Exemption
Application.

2.1.2. The evidence before
the AAT in relation to the CEO’s application for review of the Commission’s
decision of 27 February 2003 being:

• the material referred
  to in paragraph 1.11 of the Commission’s decision of 27 February 2003;
• the affidavit of Mr
  Mark Rix filed on behalf of the CEO and dated 14 November 2003;
• the affidavit of Mr
  Ed Lewis filed on behalf of the CEO and dated 26 November 2003; and
• the statement of Dr
  Martin Mills filed on behalf of the Commission and dated 9 March 2004.

2.2. For the purposes of
its consideration of the CEO’s initial temporary exemption application,
the Commission undertook a public consultation process pursuant to ss48(1)(c)
and 48(1)(h) of the SDA and in accordance with part 4 of the Commission’s
Guidelines for considering applications for temporary exemption (the “Guidelines”).^[2]
The Commission has determined, in light of the breadth of the material it currently
has before it and the overlap between the issues raised by the current and the
initial temporary exemption application, that such a process is unnecessary
on this occasion.

2.3. As noted in the Commission’s
decision of 27 February 2003, under paragraph 2.1 of the Commission’s
Guidelines, the Commission must be satisfied that there is at least an arguable
case that the circumstances or activities covered by the Exemption Application
might constitute discrimination to which the SDA applies. Notwithstanding the
fact that the proposed scholarship scheme now provides for an equal number of
sex-specific scholarships to be awarded to men and to women, the Commission
is of the view that this criterion is satisfied. For example, if a person who
would have otherwise received one of the sex specific scholarships failed to
do so by reason of the requirement that the scholarship be given to people of
a particular sex, that would prima facie constitute ‘direct’ sex
discrimination within the meaning of s5(1) of the SDA, which could be unlawful
by virtue of ss21(2)(a) and/or 22 of the SDA. ^[3]

2.4. As with the Commission’s
decision of 27 February 2003 the primary issue before the Commission remains
that of reasonableness.^[4] As a preliminary point
regarding that issue, the Commission remains of the view that “sex specific”
scholarship schemes designed to attract HSC students into primary school teaching
are, as a matter of general principle, undesirable. The Commission observed
in its decision of 27 February 2003, that there appear to be no practices which
exclude, disadvantage, restrict or result in an adverse effect upon males seeking
to enter the primary teaching profession (see paragraph 3.20). There similarly
seem to be no such practices which negatively impact upon women seeking to enter
that profession. The justification for sex-specific scholarship schemes (or,
more specifically, those proposed to be offered to male students) appears to
rest solely upon educational outcomes for primary school students. As regards
that justification, the Commission has before it material which indicates that
it is the quality of the teacher that matters to the educational outcomes of
boys and girls enrolled as primary school students, not the sex of the teacher.
In this regard the Commission refers to the Statement of Dr Martin Mills who
stated that:

“The report
commissioned by DEST, Addressing the Educational Needs of the Boys (2002)
^[5] … and Trent and Slade’s report
Declining Rates of Achievement and Retention (2001),^[6]
firmly demonstrate that the most important thing in the education of boys
is that they have good teachers. It is good teaching styles, assessment and
curriculum that make a difference to students. ^[7]

Many of the male
primary school students cited in the DEST report Addressing the Educational
Needs of the Boys (2002) and by Trent and Slade in their report,
Declining Rates of Achievement and Retention (2001) claim that they do
not care about the sex of the teacher: they just want good teachers. For example,
in the Trent and Slade report Declining Rates of Achievement and Retention
(2001), male primary school students state that good teachers can be male
or female … In line with the recommendations of the DEST report Addressing
the Educational Needs of the Boys (2002) and the report into the Inquiry
into Male Teacher Numbers in NSW Public Schools, it is my opinion that
the qualities necessary to demonstrate good teaching are not innate to either
sex and the priority of all education systems should be to attract teachers
of the highest quality”. ^[8]

2.5. The Commission also refers to
and repeats paragraph 3.39 of its decision of 27 February 2003 which stated
that:

“In the …
report … Boys: Getting it Right …, it was stated that:

[i]t is desirable,
if not always possible to have a balance of men and women teaching and in
positions of authority in schools. This allows all students to be exposed
to both men and women in leadership positions, and both men and women sharing
authority and recognising the legitimate authority of others. ^[9]

However, the Committee
qualified those comments by stating:

In supporting the presence
of more men in schools, the Committee is not suggesting that female teachers
should be displaced in favour of men or that women are not equally good
teachers. The Committee agrees that the quality of the teacher is more important
than the gender of the teacher…”. ^[10]

2.6. The CEO apparently in response
to some of the issues raised in the Commission’s decision of 27 February
2003 adduced further evidence in the AAT proceedings in relation to the possible
effects of a sex specific scholarship scheme from Mr Ed Lewis. On behalf of
the CEO Mr Lewis suggested that sex specific scholarships may attract more males
into the primary teaching profession saying that:

“In my view
the likely outcomes of increasing the numbers of male primary teachers can
be categorised as twofold: a hard category concerning changes that are highly
likely and a soft category where changes are possible. ^[11]

Changes which are
highly likely to occur are:

• the provision
  of a more diverse range of role models for children
• the demonstration
  that men can play an active role in caring for children
• the confronting
  of traditional stereotypes of masculinity
• the enhanced
  modelling of male teaching styles and interpretations of curriculum.

Changes which may
possibly occur include:

• reducing the
  likelihood of behavioural and learning difficulties and discipline problems
  among boys
• engaging boys
  more fully in learning
• improving the
  academic achievement of boys
• raising the status
  of the profession.” ^[12]

2.7. This does, of course,
appear to assume that the scholarship scheme will have a more than negligible
effect upon the gender imbalance in the primary teaching profession, which,
as observed in paragraph 3.33 of the Commission’s decision of 27 February
2003, is far from clear.

2.8. Moreover the Commission
notes that Dr Martin Mills has expressed some doubt about the conclusions drawn
by Mr Lewis suggesting, inter alia, that:

In relation to the changes
which are suggested by Mr Lewis as being “highly likely to occur”:

• In order to provide
  boys with a diverse range of male role models consideration must be given
  to the ways in which some of the traditional views about ‘real men’
  are maintained and reinforced for boys by peer group pressure, school discipline
  structures and power relations within schools as well as what it is that teachers
  ought to be modelling.^[13]
• The increase of male
  teachers per se will not challenge stereotypical masculine behaviours. Rather
  consideration must be given to the kinds of men that should be employed.^[14]
• The claim that male
  teachers will enhance modelling of male teaching styles and interpretations
  of the curriculum is problematic as the research indicates that what is important
  is good quality teaching that will encourage students to engage with schoolwork.^[15]
• The claim that there
  are ‘male teaching styles’ is similarly problematic: the NSW parliamentary
  Inquiry into Male Teacher Numbers in NSW Public Schools stated that,
  “there is only limited evidence to suggest that there are any particular
  gender differences in teaching”.^[16]

In relation to the changes
which are suggested by Mr Lewis as “possibly” occurring:

• There is no consensus
  as to the extent of the ‘problem’ of boys’ higher truancy
  and suspension rates and lower literacy rates.^[17]
• The research does not
  indicate that the employment of male teachers per se will improve boys’
  behaviour and learning outcomes. The relationship that is opined by some has
  largely been one of supposition as very little research has been conducted
  on this issue.^[18]
  
  
  
  2.9. Nevertheless, the Commission notes that the scholarship scheme is less
  discriminatory that the scheme initially proposed by the CEO and broadly reflects
  the type of scholarship scheme recommended by the House of Representatives
  Standing Committee on Education and Training in its report, Boys: Getting
  it Right (see paragraph 1.7 above). ^[19]

2.10. In addition, as noted above,
the CEO has stated that the offering of the proposed scholarships will not impact
upon the scholarships that are currently offered by the CEO.

2.11. In light of paragraphs 2.8
and 2.9 above and having regard to the material before it and all of the circumstances,
the Commission has formed the view that the proposed scholarship scheme satisfies
the test of reasonableness. In reaching that conclusion, the Commission notes
that, while it remains uncertain about the validity of the reasons advanced
in support of the exemption, the discriminatory effect is significantly ameliorated
by offering sex-specific scholarships to men and to women (see paragraph 3.35
of the Commission’s decision of 27 February 2003). As such the Commission
has determined to grant a temporary exemption in the terms set out in section
3 below.

3. THE EXEMPTION GRANTED TO THE
TRUSTEES

3.1. The exemption is granted to
the Trustees only in relation to the operation of sections 21(2)(a) and 22(1)
of the SDA.

3.2. The exemption applies to all
aspects of advertising and determining the eligibility for, granting and administering
the scholarship scheme as outlined in the Exemption Application.

3.3. Under s44(3)(a), the
Commission may grant an exemption subject to such terms and conditions as are
specified in the relevant instrument. The grant of the exemption to the Trustees
is subject to the following terms and conditions:

• the scholarship scheme
  will be conducted in the manner set out in the Exemption Application. In particular
  but without limitation:

  1. the scholarship
  scheme will be advertised in the secondary schools operating within the
  Archdiocese of Sydney;

  2. the scholarship
  scheme will be open to female and male applicants, but of the 24 scholarships
  offered 12 scholarships will be offered to male students and 12 offered
  to female students. The 24 scholarships will be of equal value;
  
  
  
  3. the scholarships will provide financial support/incentives to HSC students
  to enrol in primary teacher training at university for the 2005 academic
  year and then for new application in each of the following 4 academic
  years. The scholarship monies will be paid during the first year of the
  scholarship and it is proposed recipients will in turn commit to working
  within Catholic primary schools for a period following completion of their
  teaching degree; and

• the additional scholarships
  will not negatively impact upon the existing scholarships currently offered
  by the Trustees and/or the CEO as an agent of the Trustees set out in annexures
  A and C to the affidavit of Mr Mark Rix. In relation to this condition, the
  impermissible negative impacts include diminishing the number and/or value
  of the scholarships currently offered by the Trustees and/or the CEO as agent
  of the Trustees.

3.4. The exemption is granted for
a period of five years from the date of the grant of this exemption.

4. ALTERNATIVE STRATEGIES

4.1. Consistent with its
decision of 27 February 2003, in the Commission’s view the proposed scholarship
scheme will not by itself address the issues that were identified in the material
before the Commission as the causes of the gender imbalance in the primary teaching
profession.^[20] In the affidavit of
Mr Mark Rix the CEO (as an agent of the Trustees) indicated that for this reason
that any such scholarship scheme would be “only one element” in
an overall strategy to be adopted by it to address the gender imbalance in the
primary school teaching profession. ^[21]

4.2. As stated in paragraph
3.44 of its decision of 27 February 2003, the Commission encourages the Trustees
and the CEO as agent of the Trustees to investigate and implement further non-discriminatory
strategies that address the underlying causes of the gender imbalance in the
primary teaching profession.

Dated this 19th day of March 2004

Signed by the President John von
Doussa, on behalf of the Commission.

Please note

Subject to the Administrative Appeals Tribunal Act 1975 (Cth), application
may be made to the Administrative Appeals Tribunal for a review of a decision
to which this notice relates by or on behalf of any person or persons whose
interests are affected by the decision.

---

1. House
of Representatives Standing Committee on Education and Training, Boys: Getting
it Right, Commonwealth of Australia, Canberra, 2002, p 162.

2. The Guidelines are published on the Commission's website
at www.humanrights.gov.au/legal/sda_exemptions.html

3. Note, that by reason of s9 of the SDA, the potential for
such conduct to be unlawful under the SDA is more likely to arise in respect
of an unsuccessful female student than an unsuccessful male student. The SDA
has a wider application to discrimination against women under s9(10), which
provides that the relevant provisions have effect in relation to discrimination
against women to the extent that those provisions give effect to the Convention
on the Elimination of All Forms of Discrimination Against Women.

4. See paragraph 2.2, dot-point 3 of the Commission's Guidelines.


5. Department of Education, Science and Training, Addressing
the Needs of Boys, Commonwealth of Australia, 2002.

6. Trent and Slade, Declining Rates of Achievement and Retention:
The Perceptions of Adolescent Males, Commonwealth Department of Education,
Training and Youth Affairs, 2001, referred to in the Affidavit of Mr Ed Lewis
dated 24 November 2003.

7. Statement of Dr Martin Mills dated 9 March 2004, paragraph
13.

8. Statement of Dr Martin Mills dated 9 March 2004, paragraph
14.

9. House of Representatives Standing Committee on Education
and Training, Boys: Getting it Right, Commonwealth of Australia, Canberra,
2002, p 160.

10. House of Representatives Standing Committee on Education
and Training, Boys: Getting it Right, Commonwealth of Australia, Canberra,
2002, p 162.

11. Affidavit of Mr Ed Lewis dated 24 November 2003, paragraph
14.

12. Affidavit of Mr Ed Lewis dated 24 November 2003, paragraph
15.

13. See Statement of Dr Martin Mills dated 9 March 2004, paragraphs
17 - 18.

14. See Statement of Dr Martin Mills dated 9 March 2004, paragraph
19.

15. See Statement of Dr Martin Mills dated 9 March 2004, paragraph
20.

16. See Statement of Dr Martin Mills dated 9 March 2004, paragraph
21.

17. See Statement of Dr Martin Mills dated 9 March 2004, paragraph
22.

18. See Statement of Dr Martin Mills dated 9 March 2004, paragraph
23.

19. House of Representatives Standing Committee on Education
and Training, Boys: Getting it Right, Commonwealth of Australia, 2002.


20. The underlying causes of the gender imbalance in the primary
teaching profession were set out in paragraph 2.1.2 including footnotes of the
Commission's decision of 27 February 2003. See also, Statement of Dr Martin
Mills dated 9 March 2004, paragraphs 5 - 10.

21. See Affidavit of Mr Mark Rix dated 14 November 2003, paragraphs
7 - 8.

Last
updated 19 March 2004.