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.
- Click here to access the application from the Catholic Education Office, Archdiocese of Sydney, for a temporary exemption under section 44 of the Sex Discrimination Act 1984 ("SDA") together with a copy of a 1999 study entitled Men in Primary Schools: An Endangered Species?
- Click here to access the supplementary application made on 16 October 2002.
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.
