Pulteney Grammar School v Equal Opportunity Tribunal & Ors
[2007] SASC 308
•23 August 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PULTENEY GRAMMAR SCHOOL v EQUAL OPPORTUNITY TRIBUNAL, WALFORD ANGLICAN SCHOOL FOR GIRLS INC & ANNESLEY COLLEGE
[2007] SASC 308
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Kelly)
23 August 2007
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - IN GENERAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - SUBSTITUTED VERDICT OR JUDGMENT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION - GENERALLY
Appeal from a decision of the Equal Opportunity Tribunal - application for an exemption from the provisions of s 37 of the Equal Opportunity Act 1984 (SA) - whether Tribunal erred in not considering equality of opportunity as an objective of the Act - whether a rough gender balance at a co-educational school contributes towards equality of opportunity.
Held: appeal dismissed - equality of opportunity is a valid objective of the Act - current gender imbalance cited by the appellant would not lead to a lack of equality of opportunity.
Equal Opportunity Act 1984 (SA) s 1, s 5, s 29 s 37, s 92, s 98, s 103; Guardianship and Administration Act 1993 (SA) s 71; Equal Opportunity Act 1995 (Vic), referred to.
Smith v St John Ambulance Australia (1991) 162 LSJS 404; Avon v Administrative Appeals Court (1997) 69 SASR 7, applied.
Pembroke School Inc v Commissioner for Equal Opportunity (Unreported Decision of the EOT 25 July 2006), distinguished.
In the Matter of Carey Baptist (1997) EOC 92-905; In the Matter of Wesley College [1998] VADT 138; In the Matter of Ivanhoe Grammar School (Unreported Decision of the VCAT 10 November 1999); In the Matter of St Leonard's College [2004] VCAT 1818; In the Matter of Preshil [2005] VCAT 2140; Pulteney Grammar School [2006] SAEOT 1; Firbank Anglican School v Hunt [1999] VCAT 1354, discussed.
Northern Suburbs General Cemetery Reserve Trust v The Commonwealth of Australia (1993) 176 CLR 555; Smith v St John Ambulance Australia (1992) LSJS 231; Clunies-Ross v The Commonwealth of Australia (1984) 155 CLR 193; Re Bolton; Ex Parte Beane (1987) 162 CLR 514; Amatek Limited v Googoorewon Pty Ltd (1993) 176 CLR 471, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Equal Opportunity Tribunal"
"Equality of opportunity"
"Unlawful discrimination"
"Gender imbalance"
PULTENEY GRAMMAR SCHOOL v EQUAL OPPORTUNITY TRIBUNAL, WALFORD ANGLICAN SCHOOL FOR GIRLS INC & ANNESLEY COLLEGE
[2007] SASC 308Full Court: Nyland, White and Kelly JJ
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by White J. I have nothing to add.
WHITE J: Section 37 of the Equal Opportunity Act 1984 (SA) (“the EOA”) makes it unlawful for a school to discriminate against a person on specified grounds in the enrolment of students. A person’s sex is one of those specified grounds. The Equal Opportunity Tribunal (“the Tribunal”) dismissed an application by the appellant (“Pulteney”) for an exemption from that prohibition so as to permit it to give preference to females in its enrolment practices. This appeal is brought against that decision of the Tribunal, pursuant to s 98 of the EOA.
The Tribunal is named as a respondent to the appeal but took no part in the hearing. Walford Anglican College for Girls Inc (“Walford”) and Annesley College (“Annesley”) had intervened in the proceedings before the Tribunal. By order of a judge of this Court they were joined as parties to this appeal. Annesley and Walford are both single sex girls’ schools located in close proximity to Pulteney (within one and three kilometres respectively).
The Nature of the Appeal
It is appropriate to commence with a consideration of this Court’s function on an appeal from a decision of the Tribunal. Section 98(1) of the EOA provides for a right of appeal to this Court from a decision of the Tribunal. The appeal must be conducted “as a review of the decision” of the Tribunal (s 98(4)). This Court may affirm, vary or quash the decision and may either substitute its own decision or remit the matter to the Tribunal for a further hearing (s 98(5)).
In Smith v St John Ambulance Australia[1] Matheson J considered the function of this Court on an appeal pursuant to s 98(4). Matheson J said:
I do not consider it necessary here to define exhaustively the nature of the appeal under s 98, but at least I have reached the conclusion that such an appeal is not a rehearing, and that the appeal is not confined to questions of law. Like “judicial review” under Rule 98, the appeal affords an opportunity to look over the decision of the Tribunal and to identify and correct any error, regard always being had to the fact that the appeal is an appeal from a specialist tribunal, and that in consequence the Court will not lightly overturn the opinion of the Tribunal on technical issues of discrimination.[2] (Emphasis in the original).
On appeal, Cox J (writing the judgment of the Full Court) said that he saw no reason to doubt the correctness of that understanding of the nature of the appeal but, in the absence of argument, declined to express a concluded view about the matter.[3]
[1] (1991) 162 LSJS 404.
[2] Ibid at 418.
[3] Smith v St John Ambulance Australia (1992) 166 LSJS 231 at 232.
In Avon v Administrative Appeals Court[4] the court considered an appeal to this Court from a decision of the Administrative Appeals Court (now the Administrative and Disciplinary Division of the District Court). Section 71 of the Guardianship and Administration Act 1993 (SA) provided that the appeal was to be conducted “as a review” of the decision appealed against. Olsson J said of that right of appeal:
… what is in issue is clearly not an appeal stricto sensu. It is a process in which this Court is required to reconsider the decision complained of, in the setting which gave rise to it, on a broad basis, having regard to the nature of the jurisdiction exercised under the Act; and to form its own opinion as to the propriety of what was done. In so doing it will, on the one hand, not be fettered by technical principles related to the conduct of appeals, but will necessarily bear well in mind and give due regard to the fact that the decision appealed against is that of a specialist tribunal, which ought not, lightly, to be overturned. On the other hand, it is clearly the intention of the statute that this Court is to exercise an independent judgment in assessing whether or not the court appealed from fell into error in relation to the merits of the proceedings. It must formulate its own conclusion and should not hesitate to give effect to it, if it believes that there are suasive reasons for dissenting from what was done by the AAC.[5]
Matheson and Williams JJ did not express a concluded view about the nature of the appeal.
[4] (1997) 69 SASR 7.
[5] Ibid at 36.
Although Olsson J outlined more comprehensively the function of this Court on an appeal of the present kind than did Matheson J in Smith, it is not clear whether he was intending to indicate that a different approach should be adopted. I consider it appropriate to proceed on the basis that there is no relevant distinction in substance between the two approaches. That is the course which the parties were willing for this Court to adopt. In short, this Court should reconsider the decision of the Tribunal and determine whether or not it is affected by error, either of law or as a matter of merit. It is for the appellant to demonstrate the existence of error. If the Court determines that the Tribunal has erred, it may substitute its own conclusion or, alternatively, remit the matter to the Tribunal for reconsideration.
An Application for Exemption
Section 37 of the EOA provides:
(1) It is unlawful for an educational authority to discriminate against a person—
(a) by refusing or failing to accept an application for admission as a student; or
(b) in the terms or conditions on which it offers to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student—
(a) in the terms or conditions on which it provides the student with training or education; or
(b) by denying or limiting access to any benefit provided by the authority; or
(c) by expelling the student; or
(d) by subjecting the student to any other detriment.
(3) This section does not apply to discrimination on the ground of sex in respect of—
(a) admission to a school, college, university or institution established wholly or mainly for students of the one sex; or
(b) the admission of a person to a school, college or institution (not being a tertiary level school, college or institution) where the level of education or training sought by the person is provided only for students of the one sex; or
(c) the provision at a school, college, university or institution of boarding facilities for students of the one sex.
It is the prohibition in s 37(1) which is of concern to Pulteney in the present case. An “educational authority” includes a school.[6] As already noted, discrimination on the grounds of a person’s sex is a relevant form of discrimination for the purposes of s 37.[7]
[6] Equal Opportunity Act 1984 (SA), s 5(1).
[7] See Equal Opportunity Act 1984 (SA), s 29.
Despite the prohibition contained in s 37(1), the position of schools providing education for one sex only is specifically preserved by the EOA. Section 37(3) provides that subsection (1) does not apply to discrimination of the prescribed kind in respect of admission to a school established wholly or mainly for students of the one sex.
Section 92 of the EOA provides the Tribunal with power to grant an exemption from any provision contained in the Act. Section 92 provides (relevantly):
(1)The Tribunal may, upon application under this section, grant exemptions from any of the provisions of this Act in relation to—
(a) a person, or class of persons; or
(b) an activity, or class of activity; or
(c) any circumstances of a specified nature.
(2) An exemption under this section—
(a) may be granted unconditionally or upon conditions; and
(b) may be revoked by the Tribunal upon 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.
…
(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 any other factors that the Tribunal considers relevant.
…
It is to be noted that an exemption may be granted in relation to a person or class of persons; an activity or class of activity; or any circumstances of a specified nature; and may be made subject to conditions. Subject to the right of renewal, an exemption cannot be granted for a period exceeding three years.
Section 92(6) identifies one particular circumstance in which an exemption may be appropriate, namely, to permit discrimination for the purpose of redressing the effect of past discrimination. An exemption for this purpose would promote the purposes sought to be achieved by the EOA. Section 92 does not otherwise provide assistance as to the criteria for the grant of an exemption. It provides instead that the Tribunal may have regard to any other factors which it considers relevant.
Looked at generally it can be seen that the EOA seeks to establish norms of social conduct. It does so by making discrimination on the specified grounds of sex, sexuality, marital status and pregnancy unlawful.[8] The grant of an exemption pursuant to s 92 has the effect that certain conduct which would otherwise be unlawful is to be permitted. While it is the policy of the EOA that there may be a derogation of its prohibitions in some circumstances, the effect of an exemption is to qualify the norms of conduct which it seeks to establish. This is an important factor to be considered by the Tribunal in the exercise of its discretion to grant an exemption. It leads naturally to the inference that the Tribunal must, in considering an application for an exemption, have regard to the general objects of the EOA and must be satisfied that proper grounds for the exemption are established. The applicant has the onus (on the balance of probabilities) of establishing the facts relied upon for such grounds and of persuading the Tribunal that the grant of an exemption is appropriate. The grounds for an exemption will usually be found in one or more of three circumstances: the exemption is desirable, if not necessary, to achieve a purpose of the EOA; the general prohibition would be unreasonably harsh or burdensome in the applicant’s particular circumstances; or there is some wider public interest (perhaps to be found in other legislation) which the grant of the exemption will serve. The redress of the effects of past discrimination is an example of the first purpose. I do not intend by this to state exhaustively the circumstances in which the grant of an exemption may be appropriate. The circumstances of particular cases may reveal other occasions in which the grant of an exemption will be appropriate. It is to be expected, however, that an applicant for an exemption will need to establish more than that compliance with the relevant prohibition is inconvenient or irksome.
[8] Equal Opportunity Act 1984 (SA), s 29(1).
Whatever purpose the applicant seeks to achieve, it is to be expected that the Tribunal will scrutinise the evidence relied upon with some care. In many cases, the Tribunal will be required to balance the benefits sought to be achieved by the grant of an exemption against any detriments which may occur by permitting the applicant to engage in conduct which would otherwise be unlawful. This may require the Tribunal to consider the availability to the applicant of alternative means of achieving its stated purpose.
Any exemption which is granted should be defined with some specificity and should be no more extensive than is necessary to achieve the applicant’s purpose. Both the applicant and the community should have certainty as to the extent to which conduct which would otherwise be proscribed is permitted.
The Application by Pulteney
Pulteney was established as a boys’ school in 1847. It continued as a boys only school until 1999 when it became co-educational at all year levels. Females had been enrolled in the Early Learning Centre (“ELC”) since 1997. Pulteney’s campus is on South Terrace, Adelaide.
In 2006, Pulteney had 815 students (including those in the ELC). The Tribunal accepted evidence from the school’s principal, Mr Lange, that the school is committed to the philosophical and educational view that co-education is a natural and optimal environment in which children learn.
As a co-educational school, Pulteney would like to have an even balance of genders in all classes and at all year levels. However, in the seven years since co-education was introduced, it has not been able to achieve that balance. On the enrolment numbers at 21 August 2006, 40 per cent of the entire student population (ELC to Year 12) was female. From the ELC to Year 8, 43 per cent of the student cohort was female. The anticipated enrolments (as at early October 2006) for the 2007 year indicated that 39 per cent of the students in the whole school would be female, and that 41 per cent of those in the ELC to Year 8 levels would be female.
Mr Lange gave evidence that Pulteney had in the past “tweaked” its enrolments to give some preference to females. The precise nature of the “tweaking” was not made clear. It is possible that it involved some flexibility in the application of the four tiered enrolment policy to which reference will be made later. The Tribunal was not asked to conclude that the proportion of females at Pulteney had been achieved only by engaging in conduct which, in retrospect, may have contravened a provision of the EOA.
Pulteney applied to the Tribunal for an order that it be exempted from the provisions of s 37 of the EOA:
… to allow the School to favour female applicants, including advertising to prospective students, in respect of applications for enrolment in its Early Learning Centre to Year 8 inclusive, for a period of three years, in order to promote gender balance.
Although the application referred to s 37 generally, it is plain that Pulteney sought to be exempted from the prohibition contained in s 37(1). Neither the application nor the submissions to the Tribunal identified which limb of s 92(1) Pulteney relied upon. It seems that subsection (1)(b) is the most likely, namely, the “activity” of enrolling students and the “activity” of advertising the school to prospective students. It is to be noted that Pulteney confined its application to those activities in relation to enrolments in the ELC to Year 8 levels. No such exemption was sought for Years 9 to 12. Having regard to the terms of s 103 of the EOA, it may be that the grant of an exemption with respect to advertising would be unnecessary if the exemption with respect to enrolments was granted. It is not necessary to express a concluded view about this.
The application said that the exemption was sought to facilitate the establishment of a gender balance in the ELC to Year 8 levels, with a view to that balance subsequently flowing through to all year levels.
Pulteney led evidence from Professor Gill, an Associate Professor in Education at the University of South Australia. Professor Gill gave evidence of the desirability in a co-educational school for an approximately equal number of males and females in the classroom. This was thought to be optimal for providing equality in classroom interaction and in obtaining learning outcomes. It is not necessary to outline the basis for Professor Gill’s opinion in this respect. Her opinion was accepted by the Tribunal and it was not suggested that it was in error to do so. Professor Gill also gave evidence that if the numbers of each sex are not approximately equal, a minimum number (or “critical mass”) of each gender is required. If the numbers of male or female students fall below a certain level, those remaining are likely to become uncomfortable, detached or alienated from the classroom group. Opinions as to the numbers comprising a minimum critical mass vary but it is thought that there should be at least 20-25 per cent of each gender in a classroom cohort.
Pulteney was partly motivated to seek the exemption because the Tribunal had earlier in 2006 granted exemptions to each of Kildare College, Scotch College and Pembroke School.
Both Walford and Annesley opposed the application. The principals of both schools gave evidence. Their evidence emphasised the advantages for females of education in a single sex girls’ school. It is evident that both principals were concerned about the impact competition for female students by Pulteney would have on enrolments in their own schools. Both principals also expressed concern that Pulteney had been motivated to bring the application by commercial considerations, ie, a desire to increase its enrolments to improve its financial viability, rather than a genuine desire to achieve gender equality or to promote equality of opportunity.
The Decision of the Tribunal
The Tribunal accepted the evidence of all witnesses. It accepted that Pulteney’s application was well motivated and that there was a proper educational rationale for Pulteney’s desire to obtain a 50-50 gender balance. The Tribunal’s reasons indicate that Pulteney’s application was rejected for the following reasons:
(i)The principal purpose of the EOA was to prevent discrimination against individuals. Pulteney’s goal of obtaining a 50-50 balance between males and females was not an objective of the EOA. Even if a 50-50 balance was desirable as a matter of educational theory, it did not, having regard to the purposes of the EOA, justify the grant of an exemption from the need to comply with s 37.
(ii)In practice, the objective of a strict 50-50 balance between males and females was artificial. It was unlikely to be achieved in practice in the junior school, even less so in the senior school where students have more choice of subjects and class sizes tend to be smaller.
(iii)Exemptions ought not be granted for the purpose of giving effect to theories of education or the policies of particular schools. To do so would nullify the dominant purpose of the Act, namely the prevention of discrimination against individuals.
(iv)The decisions of the Tribunal concerning Kildare College, Scotch College and Pembroke School resulted from applications which had not been contested.
(v)Decisions in analogous circumstances in Victoria were interesting and instructive but not binding. Pulteney’s application had to be determined on its own merits.
Errors in the Tribunal’s Reasons
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.[9] 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.[10]
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.
[9] Clunies-Ross v The Commonwealth of Australia (1984) 155 CLR 193 at 199; Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 530; Amatek Limited v Googoorewon Pty Ltd (1993) 176 CLR 471 at 477; Northern Suburbs General Cemetery Reserve Trust v The Commonwealth of Australia (1993) 176 CLR 555 at 563.
[10] Equal Opportunity Act 1984 (SA), s 1.
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[11] 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.
[11] [1999] VCAT 1354.
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.
Reconsideration
This means that it is necessary to reconsider the application for exemption by Pulteney. As already noted, this Court has the power to engage in its own reconsideration and, if appropriate, to substitute its own decision for that of the Tribunal. Each of the parties invited this Court to engage in such reconsideration rather than remit the matter to the Tribunal. I am satisfied that it is appropriate to do so, especially considering that all parties accepted that it involves no issues of witness credibility.
As noted earlier, it is for Pulteney to establish that the exemption sought is appropriate. Amongst other things, this requires Pulteney, in my opinion, to demonstrate that the present levels of female enrolment detract from equality of opportunity in a significant way and that it is unlikely that approximate gender equality will be achieved in the ELC to Year 8 levels within a reasonable time without an exemption.
The evidence showed that the proportion of females at Pulteney is gradually increasing. Before 1999, there were (apart from the ELC) no female students. The number of females in the initial year of co-education is not known. However, from 140 females in the year 2000, the number has increased to 324 (including the ELC) in 2006. In percentage terms, in 2000 18 per cent of the total student cohort was female. In 2006 it was 40 per cent. The proportion of females in the ELC to Year 8 levels in 2006 (43 per cent) was a little higher. This increase no doubt reflects the efforts made by Pulteney to make the schooling which it offers attractive for female students.
It is reasonable to infer that the number of females enrolled at Pulteney is likely to continue to gradually increase. Mr Lange, the Principal, said:
… We’ve been on this programme for some years now. We’ve made very good progress. I imagine that in the next five, six, seven years, we’d be very, very close to where we want to be.
Mr Lange identified the programme to which he referred in that answer as:
The programme of becoming a fully co-educational school where the number of girls and boys in the school are approximately something like 50/50.
Professor Gill said that she had not seen any evidence or information indicating that female enrolments at Pulteney had levelled out, or that it was otherwise going to be difficult for Pulteney to increase further its enrolment of female students.
The enrolments as at 21 August 2006 contained the following spread of males and females in the ELC to Year 12 levels:
2006
boys2006
girls2006
totalEarly Learning
Centre35 30 65 RECEPTION 22 25 47 YEAR 1 26 22 48 YEAR 2 26 16 42 YEAR 3 22 22 44 YEAR 4 29 16 45 YEAR 5 32 25 57 YEAR 6 39 23 62 TOTAL
ELC to Year 6231
179
410
YEAR 7 31 18 49 YEAR 8 43 31 74 YEAR 9 43 19 62 YEAR 10 49 27 76 YEAR 11 46 24 70 YEAR 12 48 26 74
TOTAL
Year 7 to Year 12260
145
405
TOTAL
ELC to Year 12491
324
815
TOTAL
Recep to Year 12456
294
750
This table shows that in 2006 the proportion of females was less than 40 per cent in four year levels (Years 2, 4, 6 and 7). In Reception, the number of females actually exceeded the number of males and in Year 3, it was equal. In Years 9 to 12 (the years for which Pulteney did not seek an exemption) the proportion of females is much lower than in the primary year levels. The closest equality of numbers is (Year 2 apart) in the lower primary years (ELC to Year 3). Assuming that there is no significant departure of females from the school upon completion of the junior primary years, it is reasonable to assume that the proportion of females in those years will continue into later years. Much will depend upon the proportion of females entering Pulteney in Year 8, a significant enrolment intake year.
Professor Gill described the 42 per cent female enrolment in the ELC to Year 8 levels as “pretty good” and “commendable”. She said that “in the general literature of co-education that’s close to norm” but went on to say that it was not as good as an equal number of males and females.
Pulteney has a four tier enrolment policy. First, preference is given to siblings of current students. Secondly, to children of staff and old scholars. Thirdly, to persons having a connection with Pulteney (such as nieces and nephews of old scholars). Finally, any remaining vacancies may be filled by children of persons who have had no prior connection with Pulteney. Within each tier level, applications for enrolment are generally considered in the order in which they are received.
Mr Lange described the enrolment of daughters of old scholars as strong. It seems that this is a significant source of enrolments. This also suggests that there are good prospects of a natural increase over time in the number of females in the school.
Mr Lange said that if the exemption was granted by the Tribunal it would make very little difference to Pulteney’s enrolment practices. In particular, Pulteney intended to continue to apply its four tier preference approach. The particular advantage which Mr Lange identified from the grant of an exemption was that it would give Pulteney certainty and clarity about the enrolment practices which it had been following and which it believed to be acceptable. In a similar vein, Mr Lange said that Pulteney did not perceive the scale of the gender imbalance problem as significant.
No specific evidence was provided to show the difference in the level of equality of opportunity between gender balances which are equal and those which approximate 60-40. Professor Gill’s evidence was to the effect that in a co-educational school an equal number of each gender is optimal. It was not, however, suggested that the gender balance had to be exactly 50-50. This would, in any event, be difficult to achieve in practice, if only because a school cannot always ensure that the number of students in a particular class will be an even number. Even when that is achieved at the commencement of the year, arrivals or departures of students during the year can alter the balance. As the Tribunal pointed out, in a class of 24 students (the usual maximum class size at Pulteney) each student represents just over four per cent of the class. In a class of 24 students, 11 females represent approximately 45 per cent of the class, and 10 females represent approximately 40 per cent. There was no evidence suggesting that proportions of that kind deny students equality of opportunity. Professor Gill’s evidence did not suggest that there was a material difference in equality of opportunity if the gender split was (as is presently the case at Pulteney in the relevant years) 60-40 and not approximately 50-50. In the absence of such evidence, I would be reluctant to reach that conclusion. It must commonly be the case that there is a disproportion of that order. The circumstances of smaller primary schools, some country schools, and the effect of subject choices on class sizes and composition in senior schools provide examples. It does not seem to be suggested that in those circumstances students’ equality of opportunity is materially compromised. It is also relevant to note also that in 2006 the proportion of female students in all year levels (ELC to Year 8) at Pulteney was well above the requisite critical mass cited by Professor Gill.
All of this suggests, in my opinion, that although Pulteney did demonstrate that an equal gender balance in a co-educational school is desirable to provide the optimal learning environment, it did not show that equality of opportunity of its students in the ELC to Year 8 levels is currently being compromised. Further, while the concerns of Mr Lange about future enrolments are understandable, the evidence adduced by Pulteney indicates that the current imbalance is likely to continue to reduce. This means, in my opinion, that Pulteney’s evidence was insufficient to warrant the grant of the exemption which it sought.
Mr Stanley QC emphasised the apparent inconsistency between the Tribunal’s decision in this case with its decisions on similar applications by Pembroke School, Scotch College and Kildare College. The proposition which was implicit in this submission was that there had been resultant unfairness to Pulteney.
The Court was not provided with the decisions of the Tribunal concerning Scotch and Kildare Colleges. As it seems that the Tribunal did not provide written reasons, the basis for those decisions is not known. The Tribunal did provide written reasons on its determination of the application by Pembroke School and they were made available to the Court.[12] Pembroke was formed in 1974 by the amalgamation of the former King’s College (an all boys’ school) and Girton School (an all girls’ school). It has been co-educational for approximately 30 years. The Tribunal’s reasons do not indicate the extent of the gender imbalance experienced by Pembroke in 2006, except that the proportion of females in some year levels was less than 40 per cent. It appears therefore that after a very long period as a co-educational school Pembroke had not, by the ordinary processes of enrolment, been able to achieve a female enrolment of even 40 per cent across all ELC to Year 6 levels. In contrast, after only eight years of becoming co-educational, Pulteney had achieved a proportion of females in the comparable years of over 40 per cent.
[12] Pembroke School Inc v Commissioner for Equal Opportunity (Unreported decision of the Equal Opportunity Tribunal 25 July 2006).
Further, Pembroke, which had a four tier enrolment structure similar to that of Pulteney, intended to apply the exemption granted across all tier levels. In contrast, Pulteney intended to make use of the exemption (if granted) only at the fourth tier of priority. It is not possible, on the evidence, to know whether Pulteney’s previous adherence to the first three levels of priority may, in part, have contributed to its present gender imbalance. Mr Lange did say that Pulteney would continue to give preference to those in the first three tiers of priority even if that meant taking more males than females, and even if there were females available in the fourth tier. This suggests that some of Pulteney’s gender imbalance may have resulted (and may continue to result) from practices entirely within Pulteney’s own control.
The differing circumstances between Pulteney and Pembroke do not indicate the existence of an inconsistency, amounting to unfairness, in the way in which the two applications were determined. In any event, as the Tribunal pointed out, save for one matter concerning the terms of an undertaking proffered by Pembroke, its application was not opposed in the Tribunal. That meant, amongst other things, that the issues which arose in Pulteney’s application were not ventilated in that case.
Mr Stanley QC also referred the Court to Victorian cases in which exemptions of the type sought by Pulteney had been granted: In the Matter of Carey Baptist;[13] In the Matter of Wesley College;[14] In the Matter of Ivanhoe Grammar School;[15] In the Matter ofSt Leonard’s College;[16] and In the Matter of Preshil.[17] Generally, each of these decisions (determined by the same member of the Tribunal) concerned an application under the comparable provisions of the EOA (Vic) in circumstances similar to those of Pulteney. Apart from Preshil, each of the schools had been a single sex school which, having become co-educational, was seeking to achieve gender equality in its enrolments.
[13] (1997) EOC 92-905.
[14] [1998] VADT 138.
[15] Unreported decision of the VCAT (10/11/99).
[16] [2004] VCAT 1818.
[17] [2005] VCAT 2140.
In many of the Victorian cases, it was accepted that the promotion of equality of opportunity made the grant of an exemption appropriate. As noted earlier, one may accept in a general way that approximate equality of numbers of each gender in a co-educational school may, for the reasons explained by Professor Gill, be desirable for the promotion of equality of opportunity. But that general proposition still has to be applied to the particular factual circumstances of each case.
There are a number of relevant differences between the circumstances of the Victorian cases and the circumstances of Pulteney. The Victorian cases concerned schools which, with the exception of Ivanhoe, had been co-educational for much longer periods than Pulteney. St Leonard’s became co-educational in the 1970s; Wesley College in 1978; Carey Baptist in 1979; some 20 years in each case before exemptions were sought. With the exception of Wesley College and one year level at Ivanhoe, none had achieved a female student cohort of more than 40 per cent in the relevant years. At Preshil and Carey Baptist, the proportion of females in the year levels for which the exemptions were sought did not exceed 30 per cent. Given these relevant factual differences, I agree with the approach taken by the Tribunal, namely, that the Victorian decisions, whilst interesting and instructive, should properly be regarded as decisions on their own facts. They do not indicate that the exemption sought by Pulteney should be granted.
My conclusion is that the application by Pulteney for an exemption should be refused.
I have reached this conclusion without reference to the position of Annesley and Walford. Each was concerned about the possible effect on their own enrolments if Pulteney was able to give preference to females and undertake advertising targetting female enrolments.
It is clear that there are respectable, but competing, educational views about the relative advantages of co-education and single sex education. It is unnecessary to make any comment about the merits of those views. Nor is it necessary to express any view about whether the exemption, if granted, would be likely to affect the enrolments of Annesley and Walford. It is sufficient, in my opinion, to treat the possibility of there being some impact as an additional reason for caution in the consideration of Pulteney’s application.
For the reasons given above, the appeal should be dismissed. I would hear the parties as to costs
KELLY J: I agree that the appeal should be dismissed for the reasons expressed by White J. I have nothing to add.
10
5
1