By John McKechnie AO, KC
In November 1948, five year old Rita arrived in Fremantle with her parents, leaving wet and war weary England behind them.
Little Rita grew up with ambitions to be a teacher. Her mum was a homemaker and her Dad was a carter. Money was tight. Rita and her dad did what was then common. In return for an education in teaching, Rita entered into a bond with the Education Department, with her dad as guarantor.
And so, in 1961, Rita enrolled at Graylands Teacher Training College, then a collection of ramshackle buildings, boiling in summer and freezing in winter.
Graylands was established in the 1950’s as a temporary facility to deal with the demand for teachers in a baby booming state.
Rita was one of a large cohort of females – they outnumbered men 5:1.
This imbalance was necessary as we shall see.
The next year Rita continued her studies and was part of the production team for Miss Hook of Holland, a student musical. Then in June, she found to her surprise that she was pregnant.
Rita and her boyfriend wished to regularise the situation by marriage and the sooner the better.
And therein lies the problem – and the reason for the great disparity in student numbers. Training lots of women students was necessary because they had the pesky habit of getting married.
Australian public services had a marriage bar. A woman employed in public service was required to resign on marriage. Obviously the males who led politics, the public service and the judiciary knew far better than women what a woman could not do. Those men clearly thought that a woman would be quite unable to multitask her spousal and family duties with a career.
Back to Rita. Typical woman. She wanted it all – marriage – completion of studies – a career in teaching. Mr Biggins, acting Principal at Graylands soon put her right.
Rita was told that she could continue and complete her course notwithstanding that she was pregnant but if she intended to marry, she would have to resign.
Read that again. Yes, it is still as stupid as the first time.
So Rita, left with little choice, signed the letter of resignation that Mr Biggins had drafted.
Now arose the question of the bond. Rita and her father would have to pay it back. It was more than 250 pounds. The conditions, especially about marriage, were very restrictive. In fact, the bond was so one sided it was surprising it was written on both sides of the paper.
Rita and her dad resisted the claim. The Minister for Education sued.
There was then, and is now, a rule of public policy that covenants in restraint of trade or marriage are illegal.
But as most things in the law there is always some wriggle room, as Justice Virtue deployed in his judgment.
A restraint is not necessarily illegal if it is reasonable. Noting (quoting Lord Davey) that public policy is always an unsafe and treacherous ground for legal decision, the judge concluded that the public policy rule could be tested on the basis of reasonableness. Then he hit his straps.
“It is clear from the regulations that the policy of the Department is opposed to the appointment of married women as permanent teachers and there is nothing against public policy in this. Probably the reverse because in the ordinary way it would no doubt more often than not be for the benefit of the community that a married woman should be free to devote herself to her ordinary domestic duties and to the bringing up of her family rather than that she should be offered any particular inducement to engage in full time employment.”
Nor did the judge think it wrong to offer some slight discouragement to marriage until a woman was in her early twenties.
The argument that Rita was an infant when she entered into the contract fared no better. The contract was for her benefit and was binding.
The upshot was that in 1965 Rita and her dad lost – by about 4 years.
Two years on, the Holt government ended the marriage ban for the Commonwealth public service. The States followed.
Four years on, in 1969, the Education Department admitted five married women to study at Claremont and Graylands Teachers Colleges.
In 1984 the Equal Opportunity Act made it illegal to discriminate against a person on the grounds of marital status or pregnancy.
And Rita? She married, lived happily and in due course qualified and became a primary school teacher.
(Adapted from Minister for Education v Moreschini [1965] WASC 40)
