Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation

Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010)

In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley to advertise for and give preference to prospective female students so as to promote a gender balance among students at the school.

Deputy President McKenzie granted the exemption, finding that its purpose was to 'promote coeducation' and that, without such an exemption, boys would tend to 'swamp' girls at the school and diminish the coeducational experience for all.

In deciding the application, McKenzie DP adopted the approach of Bell J in Lifestyle Communities [2009] VCAT 2221, which requires that in making a decision on an exemption application VCAT must give proper consideration to relevant human rights (s 38 of the Charter) and interpret s 83 of the EO Act compatibly with human rights (s 32 of the Charter).

In the present case, McKenzie DP held that the exemption application engaged the rights under s 8 of the Charter, being '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.'

McKenzie DP then considered whether granting Wesley an exemption under s 83 of the EO Act would comport with s 7(2) of the Charter and constitute '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'.  She stated that:

Here, the nature of the rights in s 8 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.

McKenzie DP further stated that she was 'satisfied that there is no less restrictive means of achieving this purpose' (s 7(2)(e) of the Charter) and concluded therefore that granting the exemption application would 'represent a reasonable limit on the human rights in the Charter'.  Accordingly, she granted Wesley an exemption pursuant to s 83 of the EO Act for a maximum of three years.

As a final point, McKenzie DP emphasised that exemptions under s 83 of the EO Act are of a temporary nature only and should not be treated as permanent exceptions to the application of anti-discrimination law.  She stated:

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.

This is consistent with the international human rights law approach to 'special measures', which requires that exemptions such as those available under s 83 of the EO Act be granted only for measures that are temporary, targeted, designed to address structural inequalities and proportionate.  Further, special measures must have a clear objective and be subject to ongoing monitoring and evaluation: see, eg, UN Committee on the Elimination of Racial Discrimination, General Recommendation No 32: Special Measures.

The decision is available at www.austlii.edu.au/au/cases/vic/VCAT/2010/247.html.

Phil Lynch is Director of the Human Rights Law Resource Centre