COURTS ADMINISTRATION AUTHORITY - [2015] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
COURTS ADMINISTRATION AUTHORITY
[2015] SAEOT 3
Reasons for Decision of His Honour Judge Costello, Member Mr R Altman and Member Mr H Yapp
22 April 2015
HUMAN RIGHTS - DISCRIMINATION
Application by the Courts Administration Authority for an exemption from the Equal Opportunity Act 1984 to enable it to employ only female legal practitioners in its Step Up to the Bar Program - positive discriminatory measures necessary to redress current gender imbalance in favour of males at the Independent Bar in South Australia - grant of application will promote equality of opportunity for female legal practitioners wishing to pursue a career at the Bar.
HELD: Exemption from the provisions of s 30 of the Act granted for three years from 13 April 2015.
Equal Opportunity Act 1984 s 29, s 30, s 92, referred to.
Pulteney Grammar School v Equal Opportunity Tribunal [2007] SASC 308, considered.

COURTS ADMINISTRATION AUTHORITY
[2015] SAEOT 3
Introduction

This is an application by the Courts Administration Authority (‘the applicant’) for an exemption, pursuant to s 92 of the Equal Opportunity Act 1984 (SA) (‘the Act’), from the provisions of s 30 of the Act to enable it to discriminate in favour of female legal practitioners in its ‘Step Up to the Bar’ Program (‘the Program’).
The Legislative Scheme
At the outset, it is convenient to set out the relevant provisions of the Act which govern this application:
29—Criteria for discrimination on ground of sex, chosen gender or sexuality
(2)For the purposes of this Act, a person discriminates on the ground of sex—
(a) if he or she treats another unfavourably because of the other's sex; or
(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the other's sex; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex; or
(d) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
30—Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of sex, chosen gender or sexuality—
(a) in determining, or in the course of determining, who should be offered employment; or
(b) in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of sex, chosen gender or sexuality—
(a) in the terms or conditions of employment; or
(b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to other detriment.
92—The Tribunal may grant exemptions
(1)The Tribunal may, on application under this section, grant exemptions from a provision of this Act in relation to—
(a) a person, or class of persons; or
(b) an activity, or class of activity; or
(c) circumstances of a specified nature.
(2)An exemption under this section—
(a) may be granted unconditionally or on conditions; and
(b) may be revoked by the Tribunal on breach of a condition; and
(c) subject to revocation, remains in force for a period, not exceeding three years, determined by the Tribunal, but may be renewed from time to time for a further period, not exceeding three years, determined by the Tribunal.
(3)An application for the grant, renewal or revocation of an exemption may be made to the Tribunal by the Commissioner or any other person.
(4)The following persons are entitled to appear and be heard by the Tribunal on an application under this section:
(a)the applicant;
(b)if the Commissioner is not the applicant—the Commissioner;
(c) a person in whose favour the exemption in question is sought, or has been granted.
(5)A person referred to in subsection (4) may call or give evidence in support of, or against, the application.
(6)In determining an application under this section, the Tribunal may—
(a) have regard (where relevant) to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination; and
(b) have regard to other factors that the Tribunal considers relevant.
(7)Notice of the grant, renewal or revocation of an exemption under this section must be published in the Gazette.
(8)Notice of the grant or renewal of an exemption under this section must state—
(a) the period for which the exemption has been granted or renewed; and
(b) the conditions (if any) to which the exemption is subject
Background to the Application
In recent years it has become apparent that, despite the fact that the ratio of male to female legal graduates (at all levels[1]) in this State strongly favours females, the number of female barristers at the Independent Bar, both in South Australia and, for that matter, throughout Australia, is around 35%. Moreover, since 2002 only 30% of those undertaking the Bar Readers Course in South Australia have been female legal practitioners.
[1] Bachelor graduates 62.3% female; graduate certificate/diploma graduates 59.9% female; masters coursework graduates 59.7% female; masters research/PhD graduates 60% - 2013 Australian Graduate Survey.
With a view to redressing this obvious imbalance, the applicant has proposed the introduction of the Program which will be conducted under the auspices of the Chief Justice and other Justices of the Supreme Court in South Australia.
The Program
The Program is aimed at female legal practitioners with legal competence, expertise, and post-admission experience of at least two years. The successful female appointee will be employed on a temporary contract with the applicant and remunerated commensurately with her years of service in the legal profession as well as by reference to the South Australian Public Sector Classification Standards and salary rates for Legal Officers.
The Program will commence with one female legal practitioner each year in the first three years. The person selected will perform similar duties and responsibilities to those of Associates within the Supreme Court of South Australia.[2] Nevertheless, having regard to the participant’s legal competence and years of post-admission experience, the participant will be expected to be involved in more complex matters with minimal oversight and supervision. She will also be expected to engage with the Justices of the Supreme Court, barristers, and other legal practitioners at an advanced level.
[2] Although the duties performed may be similar in some respects, the appointee will not be employed as an Associate, nor will she take the place of an Associate. Accordingly, the Program will have no impact on the manner of future appointments to the role of Supreme Court Associate. In particular, it will not impinge on the potential for male legal graduates to be appointed to the position of Supreme Court Associate.
Whereas Associates within the Supreme Court are assigned to a single Justice for the duration of their temporary contract, the participant will be expected to work with multiple Justices of the Court on a rotation basis. The three female Justices, currently in the Court, will act as mentors for the participant and may be expected to play pivotal roles in the Program. Furthermore, it is anticipated that the Program will enable opportunities for the participant to develop networks and professional relationships which will support a future career at the Independent Bar.
The Tribunal was informed that the concerns which have led to the setting up of the Program in South Australia are not confined to South Australia. These concerns exist nationwide and have been recently addressed in the Law Council of Australia National Attrition and Re-engagement Study (the NARS Report) released in March 2014. This Report is to be the subject of a nationwide conference to be held by the Law Council of Australia in mid 2015.
These concerns, also expressed by the South Australian women at the SA Bar, have, in turn, led to the setting up of the Women at the Bar Sub‑Committee as part of the SA Bar’s response to the NARS Report.
The Women at the Bar Sub-Committee, under the auspices of the SA Bar, supports the Program and has been working with the Chief Justice to address the imbalances in South Australia identified in the NARS Report. In this way, the Program may be seen as but one example (albeit an important one) of the steps that are underway to address the well established statistical imbalances relating to women at the Bar in this State.
Apart from the foregoing material, the Tribunal was aided by very helpful written and oral submissions, in support of the application, by Mr White of counsel, on behalf of the applicant.
Discussion
The issue, which falls for consideration in this application, is whether, having regard to the evidence presented to us and the general objects of the Act, there are proper grounds for granting the exemption sought pursuant to s 92 of the Act.
In Pulteney Grammar School v Equal Opportunity Tribunal[3] when considering the purpose of the Act, in a context not entirely dissimilar to this, White J said:[4]
[3] [2007] SASC 308.
[4] Ibid at [27]-[33].
The principal submission of Mr Stanley QC, who appeared on the appeal for Pulteney, was that the Tribunal had construed the purposes of the EOA too narrowly. In particular, the Tribunal had failed to appreciate that the promotion of equality of opportunity between all citizens (including students) was as much a purpose of the EOA as was the elimination of discrimination on the specified grounds. This error of the Tribunal had caused it to conclude that Pulteney’s application was not consistent with the purposes of the EOA.
In support of this submission, Mr Stanley QC referred to the following passage in the Tribunal’s reasons:
The Equal Opportunity Act 1984 is concerned with the prevention of discrimination based on sex.
We reject the argument by counsel for Pulteney that favouring girls is consistent with the objects of the Act because the objective of 50/50 provides girls with an equal opportunity. The Act is concerned with discrimination against individuals, not overall balances.
Section 92 does not provide any guideline as to the circumstances in which an exemption should be granted. Most assistance is provided by the preamble to the Act which enunciates the objective of preventing discrimination on the basis of sex.
Later in its reasons, the Tribunal described the prevention of discrimination as ‘the dominant purpose of the Act’.
In my opinion, Pulteney’s submission that the Tribunal did construe the purposes of the EOA too narrowly is correct. The Tribunal was in error by concluding that the dominant purpose of the Act was the prevention of discrimination on a proscribed ground.
An Act and its objects may be construed by having regard to its long title. The long title of the EOA is:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.
The first purpose as stated in the long title is to promote equality of opportunity between citizens of this State, and the third purpose is to facilitate the participation of citizens in the economic and social life of the community. The object of preventing discrimination on certain grounds is only one of the stated purposes.
In my opinion, it is also natural to construe the EOA as intending to achieve some larger purpose than the mere elimination of discrimination for its own sake. The elimination of discrimination is a means of achieving the wider purpose of equality of opportunity amongst all citizens of the State.
I note that the relevant tribunal in Victoria has, in a number of decisions, determined that an object of the Equal Opportunity Act 1995 (Vic) (‘EOA (Vic)’) (which is comparable with the EOA) is the promotion of equality of opportunity. For example, in Firbank Anglican School v Hunt it was said (quoting from an earlier unreported 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 emphasise and underline the co‑educational philosophy of the school will, in fact, promote equality of opportunity in those who attend.
I therefore conclude that the Tribunal erred in failing to recognise that an object of the EOA is the promotion of equality of opportunity, and thus failed to assess the application of Pulteney with regard to that purpose. (our emphasis)
It is evident to us, from the material supplied in support of this application, that for female legal practitioners the barriers and impediments to the pursuit of a legal career and particularly one at the Bar are real and continuing and that some positive discriminatory measures are necessary in order to redress the gender imbalance which exists in favour of male legal practitioners.
We are satisfied that the grant of this application will go some way towards the promotion and encouragement of equality of opportunity for those female legal practitioners wishing to pursue a career at the Bar.
In addition, we are satisfied that in so doing, it will also serve the wider public interest referred to by White J in the Pulteney case, in the sense that it will promote a great level of participation by female legal practitioners at the Bar. In this way, it is anticipated that in time it will lead to increased numbers of female practitioners being appointed to the senior ranks of this branch of the legal profession and ultimately to positions as members of the Judiciary at all levels in this State. Finally, we are not persuaded that the grant of this application will result in any unacceptable obstacles to male practitioners wishing to pursue a career at the Bar.
We are, therefore, satisfied that there are proper grounds for granting the exemption sought.
Conclusion
Accordingly, we make an order pursuant to s 92 of the Act exempting the Courts Administration Authority from the provisions of s 30 of the Act, to enable it to advertise for, select and then employ, female legal practitioners only to participate in its ‘Step Up to the Bar’ Program.
The exemption is granted for a period of three years from 13 April 2015.
MEMBER YAPP: I agree with the conclusions of Judge Costello and Member Altman. I wish to add the following reasons:
In this case the Courts Administration Authority’s application has not been opposed by any party. Consequently no opposing arguments were addressed, and nor any contrary materials adduced as evidence. It is therefore at best an ex parte application.
Pursuant to s 30(2) of the Act this Tribunal is inter alia not bound by the rules of evidence, but may inform itself on a matter in such manner as it thinks fit.
This nevertheless remains an essentially adversarial process. The best form of assistance that can be rendered to this Tribunal remains, where possible, that of opposing counsel objectively adducing contrary evidence and addressing arguments accordingly.
In my opinion it is desirable if the Act makes it possible for an ex parte application to be avoided.