Commonwealth of Australia v Human Rights and Equal Opportunity Commission

[1999] FCA 616

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 616

HUMAN RIGHTS – DISCRIMINATION ON THE GROUNDS OF AGE – application of the Commonwealth to review a decision of Human Rights and Equal Opportunity Commission – consideration for a promotion within two years of compulsory retirement age – whether the terms of the Defence Instruction (Air Force) Personnel 5-9 (DIP 5-9) offer a discretion to make the promotion less than two years before compulsory retirement – whether the Commission erred in law in its conclusion that DIP 5-9 did not require a refusal of promotion to the applicant.

Defence Act 1903 s 9A

Human Rights and Equal Opportunity Commission Act 1986 s 31

Human Rights and Equal Opportunity Commission Regulations 4
Air Force Regulations 88

Qantas Airways Ltd v Christie [1998] 152 ALR 365

COMMONWEALTH OF AUSTRALIA V HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION AND ANOR

NG 285 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY

11 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 285 OF 1998

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION AND ANOR First Respondent
AND:	JULIAN MANNING Second Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	11 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   the application for review be upheld

2.   the decision of the first respondent be set aside

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 285 OF 1998

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION AND ANOR First Respondent
AND:	JULIAN MANNING Second Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	11 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 27 September 1993, Flight Lieutenant Julian Manning, who was then 53 years old, complained to the Human Right & Equal Opportunity Commission (the Commission) that the refusal of the Royal Australian Air Force (RAAF) to consider him for promotion to the rank of Squadron Leader was discrimination on the ground of age.

2. The facts were these.  Mr Manning joined the RAAF as a flying officer on 16 July 1984 when he was 44 years old.  On 3 June 1995, when a Flight Lieutenant, he reached compulsory retirement age.  In 1992 and 1994 he failed to win promotion to Squadron Leader.  The Human Rights Commissioner, acting for the Commission, found on 5 March 1998 that:

   1.The respondent’s refusal to consider promoting the complainant to the rank of Squadron Leader in 1994 was by reason of his being within two years of attaining the compulsory retirement age of 55.

   2.The respondent’s refusal to consider promoting the complainant in 1994 by reason of his being within two years of attaining the compulsory retirement age was a distinction or exclusion on the basis of age.

   3.The exclusion has had the effect of nullifying the complainant’s equality of opportunity or treatment in employment.

   4.It is not an inherent requirement of the particular position that the complainant serve for two years at the position before compulsory retirement age.

3. He decided not to promote Mr Manning himself but recommended the payment to him of $20,000 as compensation for the pain and suffering experienced as a consequence of the discrimination and for the lost opportunity “to be considered on his merits without regard to age”. 

4. The Commonwealth representing the RAAF seeks judicial review of the Commission’s decision on 3 grounds:

   1.The first respondent erred in law by determining that officers of the Royal Australian Air Force had a discretion as to whether to apply Defence Instructions issued under Section 9A Defence Act 1903 when dealing with the second respondent’s application for promotion to Squadron Leader.

   2.The first respondent erred in law by characterising action taken in compliance with Defence Instructions issued under Section 9A of the Defence Act 1903 as an “act or practice” for the purposes of Section 31(b) of the Human Rights and Equal Opportunity Commission Act 1986.

   3.The first respondent erred in law by determining that availability to serve at the rank of squadron leader for a period of two years was not an “inherent requirement of the job” for the purposes of the definition of discrimination in section 3 Human Rights and Equal Opportunity Commission Act 1986.

5. Section 9A(1) of the Defence Act 1903 provides that the Secretary of the Defence Department and the Chief of the Defence Force are in general joint administrators of the Australian Defence Force. By subsections (2) and (3) they may issue Defence Instructions as relate to the Air Force. These instructions are binding on the selection panel for promotion.

6. Defence Instruction (Air Force) Personnel 5-9 (DIP 5-9) requires that an officer selected for promotion must normally be able to serve not less than 2 years at the higher rank prior to compulsory retirement.  Paragraph 25 states:

   Officers selected for promotion must be able to complete a period of service of normally not less than two years at the higher rank before reaching [compulsory retirement age].  An officer’s age may also be a factor in determining the level of efficiency where it would have some bearing on the ability to undertake the duties of a particularly rigorous appointment or to become productive in higher rank appointment.  This latter factor will only be relevant in unusual circumstances.

7. Defence Instruction (Air Force) Personnel 7-2 (DIP 7-2) provides that every officer promoted to Squadron Leader or higher serve for at least 12 months from the date of promotion.  Paragraph 31 states:

   On substantive promotion to the ranks of squadron leader and above, officers are required to serve for a minimum period of twelve months from the date of promotion…Unless exceptional circumstances apply, applications to transfer or resign within twelve months of substantive promotion to the ranks of squadron leader and above will not be approved.

8. In 1992 Mr Manning was not selected for promotion due to “relative efficiency factors”.  As he was to reach compulsory retirement in June 1995, he was considered “unlikely to be promoted”.  In March 1994 the reason given for his non-promotion was that he would not be able to serve for 2 years before compulsory retirement.  Only the 1994 decision is presently relevant as the Commission determined that the 1992 decision was not based on age.

9. I must say that I entertain some doubts about whether the Court has any power to review this particular decision of the Commission, but as each party has submitted that jurisdiction exists, I proceeded on that basis at the hearing and shall continue to do so.  I also again express my concerns, as I have done before, about how these human rights cases are constituted.  The matter before the Commission was Mr Manning’s complaint against the Commonwealth (RAAF).  The application before this Court is the Commonwealth against the Commission and Mr Manning.  The Commonwealth offered full submissions.  The Commission has submitted to any order of the Court although at my request it made available some analysis of the jurisdictional question. Mr Manning originally made a submitting appearance on the ground that he could not afford to travel from Bellbowrie, Queensland to Sydney and could not afford a lawyer.  Following an invitation from me that he reconsider that position and an offer to take his submissions by video link to Brisbane, he appeared in person to argue the case.  The matter is complex and, despite his best efforts, not within Mr Manning’s capacity or resources.  That means that the Court became the contradictor of the Commonwealth.  This method of dealing with matters of importance to Australian citizens is manifestly unsatisfactory.

10. The Commonwealth’s submissions can be summarised quite briefly:

    1.The 1994 selection panel considering promotions was bound by DIP 5-9 and did not have a discretion in its application.

    2.The Commission confused the work of the selection panel with the Minister’s discretion to extend the compulsory retirement age under Air Force Regulation 88.  Mr Manning had not applied to the Minister to extend the compulsory retiring age and the Minister had not done so.  In any event the 1994 selection panel could and did not exercise this power on the Minister’s behalf.

    3.The functions of the Commission in matters of alleged age discrimination are, inter alia, to inquire into “any act or practice that may contribute discrimination” (s 31 Human Rights & Equal Opportunity Commission Act 1986 (the Act); reg 4 Human Rights & Equal Opportunity Commission Regulations).  This expression is appropriate to describe activities of Commonwealth officers who exercise discretions or choose between options.  The selection panel did not engage in an “act or practice”.  It was bound to obey DIP 5-9 and had no discretion to do otherwise.

    4.Contrary to the Commission’s view, availability to serve for a minimum period is an “inherent requirement” of the position of Squadron Leader: Qantas Airways Ltd v Christie [1998] 152 ALR 365.

11. I do not agree with submissions 3 and 4 but for the reasons which follow it is not necessary to deal with them or with submission 2 because I uphold submission 1. In the context of whether the conduct complained of was an “act” or a “practice” as defined by section 3(1) of the Act in that it was done or engaged in “under an enactment”, the Commission examined whether the Defence Instructions were “an enactment”, that is whether they had the force of statute. It considered that they were not but that nonetheless the subject matter of the complaint fell within section 31 of the Act.

12. I am inclined to the view that both of these conclusions were legally erroneous.  But it is not necessary to decide the matter definitively because assuming that either was right, the substantive question raised is whether the terms of DIP 5-9 offer the discretion discerned by the Commission or whether they are mandatory.  The Commission read into the words “normally not less than two years” a discretion to select for promotion officers who cannot serve at least two years before compulsory retirement.  The Commission considered that DIP 7-2 is not a fetter on the selection panel but prevents officers from transferring or resigning with the 12 months period.  It found support for this view in the power of the Minister to extend an officer’s retirement age (reg 88(2) Air Force Regulations).

13. The matter is not free from doubt but in my view the Commission erred in these conclusions.  As I read DIP 5-9, the requirement is that unless the retirement age is extended or there are other exceptional circumstances in the particular case, the selection panel is not at liberty to promote an officer who cannot serve the two year period.  There were no special circumstances advanced here, either in 1994 when the matter was being considered or at the hearing in this  Court, and there was no extension and no application for an extension of Mr Manning’s retirement age.

14. In my view, DIP 7-2 is irrelevant to this case for the very reasons the Commission gave.  It provides for restrictions on officers, not on a selection panel.  But a selection panel would be bound to take into account whether the Instruction could be complied with before it made its decision.  If the 1994 decision had been favourable to Mr Manning, he could have become a Squadron Leader no earlier than 1 January 1995, only 5 months before his compulsory retirement.  Again no exceptional circumstances were or are advanced.  The selection panel would have been seriously recreant to its duties if it had made the promotion in that circumstance.

15. Assuming jurisdiction, I consider for those reasons that the Commission erred in law in its conclusion that DIP 5-9 did not require a refusal of promotion to Mr Manning.  The application for review is upheld.  The findings and recommendations of the Commission are set aside.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             11 May 1999

Counsel for the Applicant:	Rhonda Henderson
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the first Respondent:	Susan Roberts (HREOC)
The second Respondent appeared in person.
Date of Hearing:	15 July 1998
Written submissions completed	31 July 1998
Date of Judgment:	11 May 1999