VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H364/2021	
CATCHWORDS	
Equal Opportunity Act 2010 sections 89 and 90 – exemption to allow otherwise discriminatory conduct – structuring school waiting lists and taking other measures to promote and maintain a target range of gender balance of students at a coeducational school – relevant principles – operation of Charter – consideration of all facts and circumstances in each case; Charter of Human Rights and Responsibilities Act 2006 sections 7, 8 and 32.	

APPLICANT	Woodleigh School	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Member C. Thwaites	
HEARING TYPE	Hearing	
DATE OF HEARING	24 February 2022	
DATE OF ORDER AND WRITTEN REASONS	17 March 2022	
CITATION	Woodleigh School (Human Rights) [2022] VCAT 244	

Order
1	The Tribunal hereby grants an exemption from the operation of sections 38, 44, 105, 107, and 182 of the Equal Opportunity Act 2010 to enable the Applicant to engage in the exempt conduct.
2	This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 17 March 2027.

C. Thwaites
Member			
APPEARANCES:		
For Applicant	Mr G. Brodie, Solicitor
Mr D. Baker, Principal 
Mr S. Grimshaw, Director of Business	

EXEMPTION
Application no H364/2021
The Victorian Civil and Administrative Tribunal has considered an application pursuant to section 89 of the Equal Opportunity Act 2010 (the Act) by Woodleigh School (Woodleigh). The application for exemption is to enable Woodleigh, from time to time, for the purposes of achieving gender balance, to:
(a)	structure waiting and enrolment lists to target prospective students of either gender; 
(b)	advertise for prospective male or female students in year levels where future waiting lists show a gender imbalance;
(c)	allocate student placements and other bursaries and enrolments targeted at prospective male or female students so as to promote a gender balance of the students at the school; and
(d)	grant scholarships to male or female students and advertise for such 
(the exempt conduct).
UPON READING the material filed in support of this application, including the affidavits and oral evidence of David John Baker Principal of Woodleigh, at the hearing on 24 February 2022, and having had regard to written submissions from an interested person who provided three emails to the Tribunal, for the reasons published today, the Tribunal is satisfied that it is appropriate to grant an exemption from sections 38, 44, 105, 107 and 182 of the Act to enable the applicant to engage in the exempt conduct.
The Tribunal hereby grants an exemption from the operation of sections 38, 44, 105, 107 and 182 of the Act to enable the applicant to engage in the exempt conduct.
This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 17 March 2027.
Dated this 17th day of March 2022.

C. Thwaites
Member

Reasons
BACKGROUND
1	Woodleigh School (Woodleigh) opened in 1856 as a small independent coeducational primary school. The school has expanded and grown overtime and now covers three campuses providing early childhood centres, Foundation (prep year) to year 12. In 2021 Woodleigh had about 1,042 students. 
2	Woodleigh is the oldest independent coeducational school in Victoria. The school’s commitment to coeducation is long standing and a key part of its character and educational philosophy.
Procedural history
3	Woodleigh seeks an exemption from the Equal Opportunity Act 2010 (the Act) for a five-year period, to permit it to undertake the exempt conduct to help maintain the gender balance of the school’s student cohort. 
4	The school does not aim to impose a strict rule of 50% female 50% male students. It aims to achieve a gender balance within a range between 60% at the highest and 40% at the lower end of the range. The school believes a gender ratio outside that range risks the ability of Woodleigh to offer a true coeducational experience. 
5	Woodleigh was granted an exemption for the same purpose in 2016. That exemption has now expired.
6	The Victorian Equal Opportunity and Human Rights Commission was given notice of the exemption application. It did not seek leave to intervene. 
7	Complying with directions I made on 7 December 2021, Woodleigh placed a Notice of the application in the Mornington Newspaper, and on its website, and circulated a copy of the Notice to all parents of current students, and all persons on its waiting list. The Notice provided information about the application and advised that submissions for or against the application could be made to the Tribunal, and provided information about how to attend the hearing. 
8	The Tribunal received three emails from the same person in response to the Notice of the application. 
9	A hearing was conducted on 24 February 2022. At the hearing I took oral evidence from David Baker, Principal and Scott Grimshaw, Director of Business. Gareth Brodie, Solicitor, appeared representing Woodleigh and made oral submissions. No one else attended the hearing. At the conclusion of the hearing, I reserved my decision.
The Law
10	The objectives of the Act include the elimination of discrimination to the greatest extent possible. Accordingly, the Act, amongst other things, prohibits certain forms of discrimination. Included in those prohibitions is discrimination on the basis of sex.  
11	Sections 38 and 44 of the Act prohibit discrimination on the basis of sex in the context of education and services. Section 105 prohibits authorising or assisting discrimination. Section 107 prohibits requesting information that could be used to form the basis of discrimination against a person. Under section 182, it is an offence to publish or authorise the publication of discriminatory advertising.
12	These sections of the Act would all be engaged by the conduct that is the subject of this application.
13	Section 13 states that the Act does not prohibit discrimination if an exemption applies. So, conduct that would otherwise be discriminatory conduct prohibited by the Act (in this case, by sections 38, 44, 105, 107 and 182) can be permitted by the grant of an exemption.
14	Sections 89 and 90 of the Act deal with exemptions. Section 89 states that the Tribunal may, by Notice published in the Government Gazette, grant an exemption from any provisions of the Act in relation to a person or class of persons or an activity or class of activities or in any other circumstances specified by the Tribunal. In granting an exemption, the Tribunal may impose conditions. An exemption may be granted for up to five years and may be renewed. 
15	Section 90 of the Act sets out matters which the Tribunal must consider in exercising these powers. It says:
90.	In deciding whether to grant, renew or revoke an exemption, the Tribunal must consider—  
(a)	whether the proposed exemption is unnecessary because—  
(i)	an exception or exemption in this Act already applies to the conduct sought to be exempted; or 
(ii)	the conduct sought to be exempted would not amount to prohibited discrimination; and  
(b)	whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities; and  
(c)	all the relevant circumstances of the case.
16	Section 8 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) provides for recognition and equality before the law, and states that every person has the right to enjoy his or her human rights without discrimination, and is entitled to the equal protection of the law without discrimination, and has the right to equal and effective protection against discrimination.
17	Section 7(2) of the Charter provides guidance on whether the exemption is a reasonable limitation on the right to equality: 
(2)	A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—  
(a)	the nature of the right; and  
(b)	the importance of the purpose of the limitation; and  
(c)	the nature and extent of the limitation; and  
(d)	the relationship between the limitation and its purpose; and  
(e)	any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
18	The plain words of section 89 of the Act indicate that the purpose of the section is to empower the Tribunal to exercise a broad discretion to grant, renew or revoke exemptions from provisions of the Act. The Tribunal may apply conditions to the exemption and determine its term. Section 90 of the Act requires that the Tribunal take into account the listed matters when exercising the discretion. Section 90(b) directs the Tribunal to one of the human rights created by the Charter. As section 90(c) is open-ended, the Tribunal may also take into account any other human rights which arise in the circumstances. Given the above, I consider the purpose of section 89 of the Act can be interpreted compatibly with human rights.  
Responses to the application
19	The Tribunal received three emails in responses to the Notice of the application. The emails came from a parent of students at the school.
20	The emails opposed granting the application, and submitted the gender equality rules disadvantaged boys. The emails outlined the experience of trying to get children enrolled at the school, and the negative affect the gender selection process had on the family. The emails stated that at present, the school is wholly discriminatory and this is unacceptable. 
Evidence in support of the application
21	Mr Baker, Principal, provided two affidavits in support of the application and gave oral evidence at the hearing. Mr Grimshaw, Director of Business, also attended the hearing and gave evidence in support of Mr Baker’s evidence. Mr Brodie, Solicitor, appear for the Applicant and made oral submissions consistent with the written submissions filed in support of the application.
22	According to the submissions made in support of the application, Woodleigh believes coeducation is a realistic reflection of broader society, and a coeducational environment better equips students for the real world. It enables students to understand and appreciate the similarity and differences between the sexes and the way in which different sexes think about and view the world. Woodleigh believes coeducation provides the best environment for students to learn how to interact and socialise with each other in an appropriate manner. The coeducational experience facilitates respect for equality and dignity for each of the sexes, and better prepares students for life in a mixed-gender society.
23	According to Mr Baker, the purpose of the application was to seek an exemption that could be used as one of a number of strategies to maintain the student gender balance within the target range of 60%-40%. The gender balance was required to ensure Woodleigh could provide parents and students with a coeducational experience. 
24	Mr Baker told the Tribunal that the range of 60%-40% was set because a gender ratio outside that range effected the environment in classes, reduced the range of perspectives in classrooms, and limited the range of social combinations and friendship groups for students. If the gender ratio moves outside the target range, the risk of losing students increases, exacerbating the problem and affecting the school’s ability to offer a coeducational experience to all its students. 
25	Mr Baker noted the school had only used the pervious exemption as a last resort. Mr Baker told the Tribunal that the previous exemption had enabled the school to offer short term targeted scholarships to encourage early enrolments of female students to help rebalance the gender ratio of an entire year after the number of female students unexpectantly halved. Without that ability, the risk was an entire year of students may not have a coeducational experience. The risk of both female and male students leaving increases as the percentages skew, and the ability of the school to offer a truly coeducational experience is impaired.
26	I questioned Mr Baker about the enrolment process at Woodleigh and about the current student cohort and anticipated enrolments. 
27	Mr Baker confirmed the statistics provided in his affidavit dated 12 November 2021, that indicated more male than female students were currently enrolled in many year levels across all campuses. The difference was much greater in some year levels than others. 
28	The anticipated enrolment statics also indicated more male than female student were anticipated in the key intake years of year 5 and year 7 looking forward from 2023 to 2027.
29	Mr Baker told the Tribunal that while the school employed a number of strategies to attract a gender balance of students, he believed the exemption remained necessary for the school to manage the balance between its female and male students, and ensure a true coeducational experience.  
30	Mr Grimshaw told the Tribunal he supported the evidence provided by Mr Baker.
FindingS
31	Taking all this evidence into account, I accept the evidence of Mr Baker, that despite continuing to undertake other strategies, the exemption is currently required to assist Woodleigh manage and maintain the balance of female and male students.  
32	Given the oral evidence and statistics provided by Mr Baker, both historical and prospective, I am also satisfied that without an exemption Woodleigh would struggle to keep the student gender balance ratio within their target range, and the proportion of female students would decrease, and it would become increasingly difficult for the school to attract and keep both female and male students who are looking for a coeducational school experience. 
Do any exceptions or exemptions in the Act apply?
33	Section 90(a)(i) of the Act requires the Tribunal consider whether an exception or exemption in the Act applies to the situation, so that a specific exemption would be unnecessary. 
34	Section 39 of the Act allows schools which provide education wholly or mainly for a particular sex to exclude students who are not of that sex. This exception does not relate to coeducational schools and therefore is not relevant to this application. 
35	There are no other exceptions or exemptions in the Act which could apply to the Applicant and avoid the need for a specific exemption.
Is the exemption discriminatory?
36	Section 90(a)(ii) of the Act requires the Tribunal consider whether the conduct for which an exemption is sought would amount to prohibited discrimination. If the conduct would not amount to prohibited discrimination, an exemption may be unnecessary. 
37	Woodleigh seeks to structure waiting and enrolment lists to target prospective students of either gender, advertise for prospective female or male students in year levels where future waiting lists show a gender imbalance, allocate student placements and other bursaries and enrolments targeted at prospective female or male students so as to promote a gender balance of the students at the school; and grant scholarships to female or male students, and advertise for such. 
38	This activity would treat some prospective and current students unfavourably based on sex. 
39	Without an exemption, this conduct would be prohibited discrimination. 
Is the proposed exemption a reasonable limitation on the right to EQUALITY?
40	Section 90(b) of the Act directs me to consider whether the proposed exemption is a reasonable limitation on the right to equality as set out in the Charter. 
41	Section 8(2) of the Charter states that every person has the right to enjoy his or her human rights without discrimination.  
42	Section 7(2) of the Charter states that a human right may be subject under law only to such reasonable limitations as can be demonstrably justified in a free and democratic society base on human dignity, equality and freedom. 
43	I have considered all the relevant factors including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. 
44	I accept the exempt conduct would limit the right to equality for prospective and current students on the basis of sex. The exemption would allow the Applicant to discriminate against some prospective and current students on the basis of sex. I have taken into account the responses received objecting to the application.
45	The reasons provided in support of the exemption note the importance of the coeducational environment as a realistic reflection of the broader society. According to Woodleigh, the coeducational environment enables students to understand and appreciate the similarity and differences between the sexes, and provides the best environment for students to learn how to interact and socialise with each other and prepare for life in a mixed gender society.
46	I note the Tribunal has granted exemptions for similar conduct in the past, recognising the importance of ensuring coeducational school experiences in the community. 
47	To provide a true coeducational experience Woodleigh aims to enrol similar numbers of female and male students. The target range is between 60%-40%. If the percentage becomes too unbalance, outside the target range, Woodleigh believes its ability to provide a coeducational experience is at risk and it would fail to meet the expectations of its students and their parents.
48	I accept this application is based on Woodleigh long-held commitment to coeducation, for the reasons noted above, which forms a key part of its character and educational philosophy.
49	While I note the exemption would allow Woodleigh to discriminate against prospective and current students on the basis of sex, I also note section 39 of the Act specifically permits discrimination by single-sex schools on the basis of sex. An exemption to allow discrimination for the purpose of providing a coeducational experience would appear to involve less discrimination than a single sex-school relying on section 39.
50	While I note the responses that object to the application, I also accept the exempt conduct would not prevent any prospective student from accessing education. It is uncontested that there are a number of other schools operating in the area where the Applicant is located.
51	It is also important to note that the limitation the exemption proposes is temporary, as the Act limits an exemption to no more than five years. If a further exemption application is made at that time, it would be considered at that time against the requirements of the Act.
52	I am satisfied the exempt conduct is specific and focused to ensure the Applicant can achieve its purpose.  
53	I accept the Applicant continues to peruse less restrictive strategies to achieve a gender balance within the target range for students at the school. I also accept the evidence and statistics that indicates that despite these efforts, in most year levels, there are more male than female students, and this difference is much greater in some year levels than others. This is also reflected in the anticipated enrolment statistics for 2023 to 2027.
54	While I have taken the responses that object to this application into account, at this point in time, I am satisfied that in all the circumstances, the limits imposed by this exemption on the right to equality are reasonable and justified under the Charter. 
CONCLUSION
55	Based on the evidence and considerations noted above, I am satisfied in all the relevant circumstances of the case, that it is appropriate to grant the exemption.
56	I am also satisfied that the exemption should be granted for the period of five years.
57	Based on the material before me, I am satisfied that it is appropriate to grant an exemption from sections 38, 44, 105, 107, and 182 of the Act to enable the Applicant to undertake the exempt conduct.
Decision
58	The Tribunal hereby grants an exemption from the operation of sections 38, 44, 105, 107, and 182 of the Act to enable the Applicant to engage in the exempt conduct. 
59	This exemption is to remain in force from the day on which notice of the exemption is published in the Government Gazette until 17 March 2027.

C. Thwaites
Member