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REJECTION OF APPLICATION FOR EXEMPTION: Lourdes Hill College

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Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SEX DISCRIMINATION ACT 1984 (Cth)
Section 44(1)

NOTICE OF REJECTION OF APPLICATION FOR EXEMPTION

By this instrument, the Human Rights and Equal Opportunity Commission
(‘the Commission’) declines to grant to the Lourdes Hill
College (‘the College’) a temporary exemption pursuant to
s 44(1) of the Sex Discrimination Act (Cth) 1984 (‘the
SDA’).

1. BACKGROUND

1.1 The College applied,
by letter to the President of the Commission dated 17 January 2005, for
an exemption to the SDA ‘to advertise for a female Dean of Boarding,
Assistant Dean of Boarding and Boarding Supervisors’ to be employed
at the College. The College is described in the application as a ‘Catholic,
all girls’ secondary Boarding School under the care of the Good
Samaritan Sisters’.

1.2 The application purports to
seek an exemption under s 30 of the SDA. However, s 30 provides for a
permanent exemption (discussed further below) and the Commission has
no relevant power in relation to it. The Commission’s power to
grant a temporary exemption is granted by s 44 of the SDA and it is accordingly
under that section that the application has been considered. Section
44 of the SDA provides as follows:

44 Commission may grant exemptions

(1) The Commission may,
on application by:

  • (a) a person, on that person’s own behalf or on behalf
    of that person and another person or other persons;
  • (b) 2 or more persons, on their own behalf or on behalf
    of themselves and another person or other persons; or
  • (c) a person or persons included in a class of persons
    on behalf of the persons included in that class of persons;
  • by instrument in writing, grant to the person, persons or class
    of persons, as the case may be, an exemption from the operation of
    a provision of Division 1 or 2, or paragraph 41(1)(e), or paragraph
    41B(1)(b), as specified in the instrument.

    ….

(2) An exemption, or further
exemption, from the operation of a provision of Division 1 or 2, or
paragraph 41(1)(e) or paragraph 41B(1)(b):

  • (a) may be granted subject to such terms and conditions
    as are specified in the instrument;
  • (b) may be expressed to apply only in such circumstances,
    or in relation to such activities, as are specified in the
    instrument; and
  • (c) shall be granted for a specified period not exceeding
    5 years.

1.3 The reasons given by
the College for seeking the exemption are set out as follows in the application:

  1. All supervisors’ living quarters are within the confines
    of the girls’ living areas.
  2. This all girls’ environment of shower, toilet
    and room facilities is totally unsuitable for a male visitor or male
    staff member. The girls being typical adolescents, comfortable in the
    all girls’ environment can be known to go from room to bathroom
    in just a towel. When male visitors come to the boarding school,
    they meet the girls in a separate interview room close to the office
    of the Dean of Boarding and removed from the living quarters of the
    girls.
  3. The college attempts to bring some ‘at home’ feelings
    to the regimentation of a boarding school by allowing the girls to
    visit the dining hall at certain times in their pyjamas and also
    study in their rooms. This requires constant supervision.
  4. There are times when the Dean or Assistance Dean in
    the absence of the Dean may have to search the girls or the girls’ rooms
    in situations of major theft or drugs.
  5. Boarding Supervisors are required to enter the ‘girls
    only’ shower and toilet blocks regularly.
  6. Boarding supervisors may have to enter the living
    quarters of the boarders who may or may not be in a state of undress.
    They have to be able to attend to a student who is sick in the middle
    of the night. As often happens, the boarding supervisor may have
    to attend to the physical, bodily needs of the student such as sponging
    down her feverish body without assistance. Here at the college, the
    male staff and I at interviews, at induction and at other times often
    reinforce the unwritten law that a male member of staff is never
    alone with a student. That has not been imposed but requested by the
    male staff. In the situation of boarding supervisors this unwritten
    request would not be practical.
  7. The current financial loss of our Boarding school
    renders it not financially possible for the college to build suitable
    separate quarters.
  8. A consultant has been employed by the College Board
    to review whether or not this college should continue the Boarding
    School and so a decision has been taken to expend no further finances
    on extra boarding provisions until the outcome of this review is
    known.

1.4 The application goes
on to state:

The Boarding School has never had male supervisors but has followed
the inclusive philosophy when there has been a male chef and a male Recreation
Officer. Neither of these positions require the person to visit the girls’ living
quarters. When the male Property Manager or Maintenance Staff visit the
living quarters of the girls, there are college procedures for ensuring
the privacy of the girls and themselves.

1.5 The following further
information was provided by the College to staff of the Commission, to
assist the Commission in assessing the application:

  • The living quarters of the Dean of Boarding (‘Dean’),
    the Assistant Dean of Boarding (‘Assistant Dean’) and the
    Boarding Supervisor (‘Supervisor’) are all within the confines
    of the living area in which the students reside.
  • While the role of the Supervisor is more actively involved in the
    day-to-day supervision of the students, the Dean and Assistant Dean
    may be required to fill in for the Supervisor and their duties include
    doing all things required of the Supervisor.
  • All three positions have responsibility for care of the students
    when they may be in a state of undress.

1.6 The letterhead of the
College notes that the College is a company limited by guarantee. No
other information about the College’s activities is provided with
the application.

2. FINDINGS ON MATERIAL QUESTIONS OF
FACT

2.1 Based on the evidence
referred to in paragraphs 1.3 – 1.6 above, the Commission makes
the following findings on material questions of fact in relation to this
application:

2.1.1 The College is a girls-only secondary
Catholic boarding school. As such, students reside at the school in a
designated living area.

2.1.2 The positions of Dean, Assistant Dean
and Supervisor have duties involving care of the students in the students’ living
area.

2.1.3 In particular, the duties of the Dean,
Assistant Dean and Supervisor require, amongst other things, the following:

  • entry into all areas of the students’ living area, including
    bedrooms and bathrooms;
  • supervising students in the living area while in states of undress;
    and
  • attending the physical needs of sick students.

2.1.4 Those persons holding the positions
of Dean, Assistant Dean and Supervisor have living quarters within the
confines of the students’ living area.

2.1.5 The building of separate living quarters,
outside the confines of the student’s living area, for staff in
the positions of Dean, Assistant Dean and Supervisor would impose a financial
burden on the College. The College is currently making a financial loss
and is reviewing its operations.

2.1.6 The College is a company limited by
guarantee.

3. CLARIFICATION OF THE NATURE OF THE
EXEMPTION APPLICATION

3.1 The application states
that an exemption is sought to allow advertisement of ‘employment
of females only’ in the relevant positions. The power of the Commission
to grant exemptions does not, however, apply directly to the publication
or display of advertisements. Rather, the Commission has the power to
grant exemptions in relation to substantive acts of discrimination, in
relation to which advertisement would otherwise be an offence.

3.2 Section 86(1) of the SDA provides
as follows in relation to advertisements:

A person shall not publish or display an advertisement or notice that
indicates, or could reasonably be understood as indicating, an intention
to do an act that is unlawful by reason of a provision of Part II.

Penalty:

(a) in the case of a natural
person—$1,000; or

(b) in the case of a body
corporate—$5,000.

3.3 In the present case,
an advertisement of the type that the College seeks to publish (for ‘females
only’) would seem to indicate an intention to do an act that is
unlawful by reason of s 14 of the SDA. Section 14(1)(b) of the SDA makes
it unlawful to discriminate against a person on the ground of their sex
in determining who should be offered employment.

3.4 The Commission has therefore
considered whether it should grant the College an exemption under s 44(1)
from the operation of s 14 of the SDA.

4. REASONS FOR DECLINING TO GRANT AN
EXEMPTION

Introduction

4.1 The Commission has developed
criteria and procedures to guide the Commission in considering applications
for temporary exemption (‘the Guidelines’). The Guidelines
are published on the Commission’s website at www.humanrights.gov.au/legal/sda_exemptions.html.
The discussion below follows the structure of the Guidelines.

4.2 Amongst other things,
the Guidelines state (in section 2):

The Commission will have regard to the following criteria in exercising
its discretion:

  1. The applicant must
    show at least an arguable case that the circumstances or activities
    might constitute discrimination to which the SD Act applies. If the
    circumstances are not at least arguably discriminatory within the terms
    of the [SDA], then there is no need for the Commission to grant an
    exemption. In considering this question, the Commission will have regard
    to:
  • Whether the circumstances are within the jurisdiction of the [SDA]
    (see s.9);
  • Whether any of the permanent exemptions apply (see s.13; ss.30
    to 43);
  • Whether the circumstances can be brought within the special measures
    provision (see s. 7D).
  • The exemption
    must be appropriate in light of the objects and scheme of the [SDA].
    In considering this question, the Commission will have regard to:
    • Whether the circumstances, while not falling precisely within
      any of the permanent exemptions to the [SDA], bear a close resemblance
      to any of those exemptions so as to be within the spirit or broad
      scheme of those exemptions. Where an exemption is sought for reasons
      wholly unrelated to the objects of the [SDA] (such as to gain commercial
      advantage), an exemption will not be appropriate.
    • The particular circumstances of the case; and
    • The reasonableness of the exemption sought - the Commission will
      weigh up the nature and extent of the discriminatory effect against
      the reasons advanced in favour of the exemption.

    First Criterion: ‘Arguable Case of Discrimination’

    4.3 For the reasons set out below,
    the Commission is of the view that the application made by the College
    does not demonstrate an arguable case that the proposed activity constitutes
    discrimination to which the SDA applies.

    4.4 As set out above, the
    Commission regards the application as seeking an exemption from the operation
    of s 14 of the SDA to allow it to employ females only in the positions
    of Dean, Assistant Dean and Supervisor.

    4.5 The Commission notes
    the following permanent exemptions are provided for in ss 30 and 35 of
    the SDA and are relevant to the present application:

    30 Certain discrimination on ground of sex not unlawful

    1. Nothing in paragraph
      14(1)(a) or (b), 15(1)(a) or (b) or 16(b) renders it unlawful
      for a person to discriminate against another person, on the ground
      of the other person’s
      sex, in connection with a position as an employee, commission
      agent or contract worker, being a position in relation to which it
      is a genuine occupational qualification to be a person of the opposite
      sex to the sex of the other person.
    2. Without limiting the
      generality of subsection (1), it is a genuine occupational qualification,
      in relation to a particular position, to be a person of a particular
      sex (in this subsection referred to as the relevant sex) if:

      • (a) the duties of the position can be performed only by a person
        having particular physical attributes (other than attributes
        of strength or stamina) that are not possessed by persons of the
        opposite sex to the relevant sex;
      • (b) the duties of the position involve performing in a dramatic
        performance or other entertainment in a role that, for reasons
        of authenticity, aesthetics or tradition, is required to be performed
        by a person of the relevant sex;
      • (c) the duties of the position need to be performed by a person
        of the relevant sex to preserve decency or privacy because
        they involve the fitting of clothing for persons of that sex;
      • (d) the duties of the position include the conduct of searches
        of the clothing or bodies of persons of the relevant sex;
      • (e) the occupant of the position is required to enter a lavatory
        ordinarily used by persons of the relevant sex while the lavatory
        is in use by persons of that sex;
      • (f) the occupant of the position is required to live on
        premises provided by the employer or principal of the occupant
        of the position and:

        • (i) the premises are not equipped with separate sleeping
          accommodation and sanitary facilities for persons of each
          sex;
        • (ii) the premises are already occupied by a person or
          persons of the relevant sex and are not occupied by any
          person of the opposite sex to the relevant sex; and
        • (iii) it is not reasonable to expect the employer or principal
          to provide separate sleeping accommodation and sanitary
          facilities for persons of each sex;
      • (g) the occupant of the position is required to enter areas
        ordinarily used only by persons of the relevant sex while those
        persons are in a state of undress; or
      • (h) the position is declared, by regulations made for the purposes
        of this paragraph, to be a position in relation to which it
        is a genuine occupational qualification to be a person of a particular
        sex.

    35 Residential care of children

    1. Nothing in paragraph
      14(1)(a) or (b) or 16(b) renders it unlawful for a person
      to discriminate against another person on the ground of the other person’s
      sex in connection with a position as an employee or contract
      worker, where the duties of the position involve the care of a child
      or children in the place where the child or children resides or reside.

    4.6 In the Commission’s
    view, the exemption in s 35 of the SDA applies to the positions
    of Dean, Assistant Dean and Supervisor as these positions involve care
    of children in a place where the children reside. Accordingly, the
    Commission is of the view that it is not unlawful for the College
    to discriminate against men on the ground of their sex in connection
    with those positions.

    4.7 The Commission is also
    of the view that, in the circumstances of this case, it is a genuine
    occupational requirement that the persons holding the positions of Dean,
    Assistant Dean and Supervisor be female. Section 30(2)(g) would appear
    to apply directly to the present case: the occupants of these positions
    are required, as part of their duties, to enter areas ordinarily used
    only by girls, while those girls are in a state of undress. Section 30(2)(c),
    (e) and (f), while not directly applicable in the current circumstances,
    also tend to support the view that being female is a genuine occupational
    requirement for these positions.

    4.8 The Commission notes
    also that the SDA is limited in its application by s 9. In the present
    case, it is uncertain whether or not the SDA applies to the College at
    all. As the Commission has decided against granting the exemption for
    the reasons set out above, it is not necessary to reach a conclusion
    on this issue. However, the Commission notes that the substantive discrimination
    the subject of this application is against men. For constitutional reasons,
    the SDA has its widest application in relation to discrimination against
    women (see s 9(10)). It would seem that the most likely basis upon which
    the SDA would apply in the present circumstances is if the College is
    a ‘trading or financial corporation’. Whether or not a corporation
    is a trading corporation is a question of fact and degree and the application
    does not disclose sufficient information to reach a view on that issue.
    The Commission notes, however, the following comment of Mason J in R
    v Federal Court of Australia; Ex parte WA National Football League
    Inc (1979)
    143 CLR 190, at 234:

    Not every corporation which is engaged in trading activity is a trading
    corporation. The trading activity of a corporation may be so slight and
    so incidental to some other principal activity, viz. religion or education
    in the case of a church or school, that it could not be described as
    a trading corporation. Whether the trading activities of a particular
    corporation are sufficient to warrant its being characterized as a trading
    corporation is very much a question of fact and degree.

    4.9 As there is not, in
    the view of the Commission, an arguable case of discrimination disclosed
    in the present application, a temporary exemption under s 44(1) is unnecessary.
    It is not, in these circumstances, necessary to proceed to consider whether
    or not such an exemption would be appropriate in light of the objects
    and scheme of the SDA. The Commission refuses the application by the
    College for a temporary exemption.

    Dated this 12 th day of May 2005

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

    Please note
    Subject to the Administrative Appeals Tribunal Act 1975, 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. Last
    updated 20 October 2005.