The trickle of VCAT decisions into Austlii has brought two new Charter decisions, both on the recurrent issue of exemptions to the Equal Opportunity Act. One received some press a few weeks back, with news that the Preshil, the Margaret Lyttle Memorial School, a private school in the middle of Melbourne’s private school belt, would be allowed to continue to discriminate against boys. It’s not at all clear to me why the judgment has taken three weeks to emerge. One consequence, though, is that its crummy Charter analysis hasn’t gotten the contemporaneous criticism it deserves.
Preshil’s application was for exemptions from the EOA’s bans on discrimination against boys in education, the provision of services, requesting information and advertising. Of course, such discrimination is familiar in private schools, due to this provision:
38. An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group … may exclude- (a) people who are not of the particular sex, race, religious belief, age or age group…
But Preshil doesn’t qualify for this exemption, because isn’t a girl’s school, but rather a co-educational one. However, it is – or at least was – at risk of becoming more of a boys school, until it received an exemption from VCAT in 2005:
The material before me and Ms Millane’s affidavit sets out and compares the situation of gender balance at the school in May 2005 and August 2008. In 2005, the ratio of boys to girls was two to one or more at preparatory level, in grades 3, 4 and 5; in grade 6 (where there was one girl and 16 boys) and in years 7 and 10. In August 2008, boys and girls were at a ratio of or exceeding two to one in grade 6 and year 7, with ratios below but close to that figure in its age three nursery. In the other classes, the ratios are much closer and the gender balance, while not equal, does not show swamping. Preshil’s current waiting list has twenty boys and eight girls on it. In the last three years, the percentage of girls attending the school has increased, and the percentage of boys has declined slightly. The school attributes this improving gender balance to the operation of the exemption.
The exemption in particular seeks to offer scholarships and the like exclusively to girls and, in the classes with a 2-1 ratio, to stop taking boys altogether.
There is possible discrimination here, but there is a significant public interest in granting the exemption. It promotes a coeducational choice at a school with a unique educational philosophy and environment. It prevents girls at the school being swamped in those classes where boys are in very great numbers, and so tries to ensure that boys and girls in all classes receive the same coeducational experience
‘Possible’ discrimination? What the hell is ‘possible’ about this? As a result of this exemption, a number of kids are going to miss out on Preshil’s unique educational philosophy simply because they have penises. Others will miss out on financial support for the same reason. It is discrimination (albeit discrimination that is routinely practiced by single sex schools.)
McKenzie, readers might recall, both wrongly dodged and completely botched the Charter in granting a race discrimination exemption to BAE Systems Australia a couple of months back. But, this time, she’s run out of (spurious) excuses and had to ‘apply’ the Charter:
I accept counsel’s submission that my conclusion is compatible with the Victorian Charter of Human Rights and Responsibilities. The school’s approach to coeducation is, in my view, consistent with a number rights in the Charter. For example, the school emphasises the individuality of the child and the freedom of thought, expression and belief. The exemption is aimed at fostering the school’s coeducational environment, and ensures that one sex is not disadvantaged relative to the other. To the extent that any human right in the Charter may be engaged, it is my view that the exemption represents a reasonable limit on that right in the terms set out in s7 of the Charter. The conditions to which the exemption is subject ensure that its operation is limited only to those situations where there is a substantial gender imbalance, and that it operates in the least restrictive way.
This is just gibberish. Where do I start?
First, her analysis exclusively examines the rights that Preshil is supposedly promoting, but completely neglects to identify what rights it proposes to limit. Indeed, the limitation is described, in flowery terms, as the school’s ‘approach to coeducation’ and any limit on human rights is only mentioned as a possibility. Well, here’s a right that ‘may’ be engaged:
8(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
A proper Charter s. 7(2) analysis should put the limitation front-and-centre of the analysis.
Second, her claim – presumably applying Charter s. 7(2)(b) – that the limitation is actually a promotion of Charter rights is laughable, simply a repeat of Preshil’s much-vaunted educational philosophy. Maybe Preshil is a hotbed of freedom of conscience, expression, and child protection, though there’s no evidence of that beyond the school’s claims. And what school wouldn’t make at least some of those claims? More importantly, she does not make any findings that co-education is vital to any of these things. Interestingly, when you look up Preshil’s own website, you won’t find a single mention of the fact that the school is coeducational, nor do you find such things in discussions of Margaret Lyttle’s philosophy. So, it may well be that Preshil has a rights-promoting syllabus and just happens to be co-educational too, in which case the discrimination is really about preserving a historical (and possible commercial) attribute.
Third, there’s also her claim that the proposed discrimination will ensure that ‘one sex is not disadvantaged relative to another’. But there’s no explanation of this at all. Which sex is being disadvantaged by Preshill’s glut of boys? Is the boy majority suffering through lack of female company? Is the girl minority being overwhelmed? What is completely lacking in McKenzie’s analysis is any consideration of why the gender-imbalance is occurring. Is it because girls are being scared away? Or is it because there are lots of good all-girl schools in the area, but fewer all-boy schools? In that case, the proposed exemption will exacerbate a disadvantage being faced by the local boys.
Fourth, what McKenzie’s Charter s. 7(2) analysis (in common with many others who leap straight to the five factors) misses is the core values of ‘human dignity, equality and freedom’ that all limits are meant to be based on. To see the problem, think about a similar claim made by a private school that its unique ethnic ‘diversity’ is at threat of being ‘swamped’ by, say, Muslims. How is Preshil’s alleged gender-imbalance problem any different? How will a local all-boy family feel when they miss out on enrolment or have to pay more than others? What message is being sent about Charter values?
Fifth, she neglects any consideration of overseas decisions, including from that hotbed of educational experimentalism, diversity and segregation, the U.S. The U.S. Supreme Court has long been skeptical about claims of special educational programmes that demand discrimination to operate, allowing men into a ‘ladies’ nursing school, women into the Virignia Military Institute and barring quotas (but not diversity factoring) from publicly-funded universities. The US Supreme Court is no slouch on redressing discrimination, given its famous Brown decision, but it does so in response to established past discrimination, not just random shifts in gender numbers from year to year.
Sixth, McKenzie simply asserts that there’s no less restrictive way to achieve the amazing purposes of Preshil, without the slightest analysis or evidence. She should get a job with VGSO writing statements of compatibility! There isn’t any rationale given for her 2-1 ratio approach. When does the ‘swamping’ and ‘disadvantage’ kick in exactly? Moreover, it’s not at all clear to me that the conditions on the exemption are adequate. To give just one example: despite Preshil being the beneficiary of this exemption since 2005, its website doesn’t contain any mention of the potential discrimination against boys. Hell, the application form doesn’t even ask a child’s gender, so god knows how they apply their quota. Will they exclude girls with boy’s names too? There’s a lot of them about these days. Moreover, Preshil demands a non-refundable application fee, gender-neutral of course. Don’t you think the boys should get a discount? Or a refund?
Seventh, operative provisions? What operative provisions? Is McKenzie applying Charter s. 32? Charter s. 38? Charter s. 6(2)(b)? Charter s. 1? Who knows? It’s strange, because, despite her ridiculous ruling that Charter s. 2 barred the Charter from applying in BAE Systems Australia, she actually discussed both the interpretation mandate and the conduct mandate. She described the former as making a ‘fundamental change’ and adopted an unusual approach to the latter, arguing that the conduct mandate might be relevant in its application to the applicant for the exemption:
It is clearly relevant, in considering whether or not to grant this exemption, to consider whether the Charter would apply to the conduct which BAE seeks to be exempt from the EO Act, and whether, if it is a public authority in respect of that conduct and obliged to act compatibly with human rights, it would be inconsistent with that obligation and the Charter to grant the exemption.
That was all quite weird, since BAE was clearly not a Victorian public authority. But there’s certainly an argument (if only that) that Preshil is a functional public authority (though that’d be quite a can of worms.) So, why on earth didn’t McKenzie consider that here? (As I discussed in my earlier post, this argument is especially significant for ‘public’ authorities that, due to their private nature, don’t have the benefit of authorising statutes for their activities.)
With this decision on top of the BAE case, I’m left quite concerned about the immature nature of anti-discrimination thinking in Victoria, and especially about the impact of the Charter on McKenzie’s decision-making. The problem in both cases may well be the lack of a contradictor to the seductive arguments of the applicant. Here, VEOHRC appears to be missing in action, presumably due to its perennial resourcing problems. McKenzie directed that Preshil advertise its application, but ‘no comments for or against the proposal have been received’. I’m not at all convinced that this is good enough when it comes to applying s. 83 of the EOA. The problem of deciding an exemption application with only the applicant giving submissions is that there is no representation of the people discriminated against. I have grave doubts about whether such an approach accords with the right to ‘equal and effective protection against discrimination’. Arguably, assuming that VCAT is a public authority for this purpose, it should not proceed in the absence of a contradictor. Why shouldn’t Preshil, the beneficiary of the application, fund such a person? Otherwise, s83 exemptions are going to continue to be rubber-stamped, Charter or not.