Commonwealth of Australia v Human Rights & Equal Opportunity Commission

[1991] FCA 723

Re: COMMONWEALTH OF AUSTRALIA
And: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION; MICHAEL DOPKING and LANCE
THOMAS
No G322 of 1991
FED No. 723
Administrative Law
(1992) EOC 92-399
(1991) 32 FCR 468

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Defence Force Determinations alleged to be discriminatory - decision of Human Rights and Equal Opportunity Commission - whether decision reviewable under the ADJR Act - whether Commission failed to address issues it was required to address - whether Commission's decision involved a breach of natural justice - whether as a result of the manner in which the inquiry was conducted not all the requisite issues were addressed.

Sex Discrimination Act 1984 (Cth) - ss.6(1), 14(2)(a), 34(1)

HEARING

SYDNEY

#DATE 22:11:1991

Counsel for the Applicant: Miss R.M. Henderson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Miss B. Pearson

Solicitor for the First Respondent: Ms M. Chalmers

ORDER

The decision in this matter of the Human Rights and Equal Opportunity Commission of 14 May 1991 be set aside.

The matter be remitted to the Commission for reconsideration according to law.

Liberty to apply within 14 days with respect to costs be reserved.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In this application, brought under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the Commonwealth of Australia seeks orders of review with respect to a decision made by the Human Rights and Equal Opportunity Commission ("the Commission") under s.81 of the Sex Discrimination Act 1984 (Cth) ("the Act").

1. Such proceedings ought not lightly to be brought. Not only does the Act not provide for an appeal to the Federal Court on a point of law, but s.81(2) specifically provides that:-
   "A determination of the Commission under sub-section (1) is not
   binding or conclusive between any of the parties to the determination."
   Accordingly, if a party is not satisfied with the determination of the Commission, that party is provided with a remedy. A respondent may refuse to comply with the Commissioner's determination. An applicant may institute proceedings in this Court for an order to enforce the determination. See s.82 of the Act. In such proceedings in this Court, the matter will be dealt with de novo and it will not be relevant to inquire whether, in the proceedings before the Commission, there was any procedural unfairness or whether the Commission failed to take into account any material fact and so on. In a hearing under s.82 of the Act, the Court looks at the matter afresh.

2. In these circumstances, the Court should not readily concern itself with proceedings by the Sex Discrimination Commissioner or by the Commission. Proceedings under the Act are intended to achieve the resolution of disputes by conciliation and other administrative action.

3. But that is not to say that the Court does not have jurisdiction under the ADJR Act in respect of a determination of the Commission. In my opinion, the decision of the Commission is a reviewable decision under the ADJR Act, being an "ultimate or operative determination", as that term has been explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338, 375-6. In the present case, the issue is an important one. It was appropriate that the Commonwealth should approach the Court for an order of review. Miss B. Pearson, who appeared for the Commission, did not submit that an order should be refused on discretionary grounds but was content to accept that, in the circumstances of this case, an order of review should be made if there was a reviewable error in the Commission's determination.

4. I should also mention that, as the Commission was constituted by its President, I would have preferred to state a case for the opinion of the Full Court rather than determine the application for myself. However, as I shall later mention, there was no discussion by the Commission of two principal issues. In this circumstance, it was not feasible to prepare a stated case for the opinion of the Full Court.

5. The issue before the Commission arose when four officers of the Defence Forces, all of whom were single persons, alleged that they had been the subject of discrimination on the ground of marital status under certain rules, one being entitled Determination No. 0505 in respect of "Disturbance Allowance", the other being Determination No. 0509 in respect of "Dwelling Purchase or Sale Expenses Allowance".

6. Under Determination No. 0505, a Disturbance Allowance is payable, inter alia, in respect of a removal from one locality to another as the consequence of a posting or upon the determination of a member's service. The amount payable to "a member with a family" is greater than the amount payable to "a member without a family". The reference to family refers to "persons who normally reside with the member", being the spouse, child or another person acting as a guardian or housekeeper to a child and "any other person approved by an approving authority". It follows that, under Determination No. 0505, a single person, not having a family, will ordinarily receive a lesser Disturbance Allowance than will a married person who has a family. Similarly, under Determination No. 0509, where an allowance is made in respect of the costs involved in the purchase or sale of a home, there is a difference between a single person who lives alone and a member of the services who lives with his wife and child or children. In the case of members of both types, if the member moves without family, no allowance is payable for clause 16 provides:-
   

"16. Where, in respect of a posting for long term duty, a member with a family -

(a) is not accompanied by his or her family on that posting for reasons other than Service reasons and his or her family remain in the locality to which the member was granted a removal in respect of his or her previous posting; or

(b) is not accompanied by his or her family on that posting and the member is granted a removal to a locality, the member is not entitled to an allowance in respect of the purchase of a dwelling in that locality."

On the other hand, if there is a posting to a base on which single person's accommodation is provided, but in which some or all of the married persons with family are required or authorised to live off the base, the married member will obtain the allowance for the costs of selling one home and purchasing another. A single member will not do so notwithstanding that the member also sells one home, purchases another and lives off the base, for Clause 17 provides that the allowance is not payable "unless Service accommodation is not available". Clause 17 reads:-

"17. An allowance is not payable to a member without a family in respect of the purchase of a dwelling unless Service accommodation is not available and is unlikely to be available in the immediate future in the locality."

Section 14(2)(a) of the Act provides:-

"It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy:

(a) in the terms and conditions of employment that the employer affords the employee".

Section 6(1) of the Act provides:-

"For the purposes of this Act, a person (in this subsection referred to as the `discriminator') discriminates against another person (in this subsection referred to as the `aggrieved person') on the ground of the marital status of the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person;

(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status."

1. The Commission held that, if there were discrimination, it was discrimination in the terms or conditions of employment. I see no error in this finding as any discrimination flowed from the application of Determinations 0505 and 0509 and not from individual action.

2. The Commission held that there was discrimination by reason of a characteristic that appertains generally to persons of the marital status of the aggrieved person. The Commission held that living in a common household with members of a family such as a wife and child is a characteristic that appertains generally to married persons but not to single persons. The Commission found that there had been discrimination by reason of that characteristic, for the discriminating or differentiating fact in Determinations 0505 and 0509 was living with or without a family. The Commission found that there was discrimination on the ground of marital status.

3. I accept the Commission's finding that it is characteristic of married persons generally to live with a wife and child and characteristic of single persons generally not to do so. As s.6(1)(b) uses the adverb "generally", it seems to me that the Commission's reasoning was correct.

4. Moreover, if there was discrimination, it was "by reason of" that characteristic and therefore the discrimination or difference was "on the ground of the marital status". The characteristic that appertains generally to the one group of members and not to the other group of members is the discriminating criterion specified by the two determinations. I agree with the Commission in this respect and do not accept the argument put by Miss R.M. Henderson, counsel for the Commonwealth, to the contrary.

5. On that basis the Commission found that there had been discrimination by the Commonwealth against Michael Dopking and Lance Thomas. I need not discuss the complaints of the two other members whose complaints were rejected by the Commission.

6. However, the Commission did not discuss the remaining two criteria stated in s.6(1), namely that "the discriminator treats the aggrieved person less favourably than ... the discriminator treats or would treat a person of a different marital status" and that such treatment be "in circumstances that are the same or are not materially different".

7. As to the first of these criteria, it seems to me that it involves or may involve matters of fact. It is not sufficient that the treatment in the terms and conditions of employment be different, it is necessary that the treatment be less favourable. Miss Pearson submitted that the treatment of the two officers was necessarily less favourable than that provided for married officers for they did not receive and could not receive the dwelling purchase or sale expenses allowance and were entitled only to a lesser allowance in respect of removal disturbance. However, it is not sufficient that single officers and married officers be treated differently. There must be discrimination as between married officers and single officers in "the terms or conditions of employment". The reference is not to "a term or condition of employment". Thus, if single persons are given other and equivalent benefits, it could be that they are not treated "less favourably". It could be relevant to inquire whether the Commonwealth provides accommodation, that is to say board and lodging, for single officers which is not provided to married officers.

8. I do not suggest that one needs to determine satisfaction of this criterion in the context of the whole of the terms and conditions of employment. But at the same time, one ought not to isolate a rule or allowance or action from the context in which it operates. If the Determinations 0505 and 0509 play a part in the wider context of providing accommodation to officers both married and single, it may be proper to have regard to that wider context in determining whether the effect of the Determination was discriminatory in the sense intended by the Act.

9. I do not express any concluded view about this matter, for the material before the Commission is not before the Court and the facts which be relevant to the issue were not stated by or discussed by the Commission. However, the Commission made no express finding that the single officers were treated less favourably. It does not seem to flow from the facts as stated by the Commission that the relevant treatment was necessarily less favourable. There was an issue to be investigated. It is not sufficient that treatment be different. The Act requires that it be discriminatory in the sense of different and less favourable.

10. The second criterion is also one which, in my view, was not but ought to have been the subject of discussion by the Commission. The issue was whether the discrimination occurred in circumstances which were the same or not materially different. This matter was not discussed by the Commission. Miss Pearson submitted that the Act intended that one should put out of mind as a relevant circumstance both marital status and any characteristic that appertains generally to persons of a particular marital status.

11. However, it is not necessarily so that a characteristic that appertains generally to persons of a particular married status cannot constitute a materially different circumstance for the purposes of s.6(1). When the context is the provision of accommodation and of benefits in relation to accommodation, the circumstance that one person lives with a wife and children may be materially different from the circumstance of another person who lives alone. Particularly is this so as s.34(1) provides:-
    

"Nothing in Division 1 or 2 renders it unlawful for an employer who provides accommodation to employees of the employer to provide accommodation of different standards to different employees where:

(a) the standard of the accommodation provided to each employee is determined having regard to the number of persons in the household of the employee; and

(b) it is not reasonable to expect the employer to provide accommodation of the same standard for all employees."

That section specifically recognises that, in relation to the provision of accommodation to employees, different standards may be appropriate having regard to the number of persons within the household of the employee. It is true that that section does not apply directly to the current issue for what is at stake is not the provision of accommodation but the provision of allowances in relation to removal and the purchase of a home. The existence of that provision may be an indication that the Act does not have it in mind that the circumstances of one employee who lives with his wife and children is, for all purposes, to be regarded as materially the same as those of an employee who lives on his own without family.

1. These are not matters in which I express any firm or concluded view. They are matters for the Commission in the first instance. However, it seems to me that the two criteria were sufficiently open to debate that they ought to have been the subject of discussion and of findings by the Commission. There was no discussion of these two fundamental issues, no facts stated and no reasons given in relation to them.

2. The Commission is not bound to state its findings of fact or its reasons. However, the Commission discussed the evidence before it and stated findings of fact and its reasons. As, in the course of those reasons, the Commission failed to address issues that the Commission was required to address, the inference may and should be drawn that there was an error of law in the reasoning process. The two issues that I have mentioned seem to me to be both of such significance and so open to debate that I draw the inference that these issues, which the Act requires be satisfied, were not considered. Indeed, it seems to me that the issue as to whether the Determinations had a relevant discriminatory effect turns entirely upon the application of those two criteria, the first as to less favourable treatment and the second as to whether the circumstances were not materially different.

3. Miss Henderson also challenged the Commission's decision on the ground of breach of the rules of natural justice.

4. The Tribunal was required to hold a public inquiry and to give notice of the time and place at which it intended to hold the inquiry and to give to the parties a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions to the Commission. See s.63 and s.66. However, in the present case, the Registrar considered that the matter could be dealt with by written submissions.

5. On 31 May 1990, the Registrar wrote to the Australian Government Solicitor:-
   "The issues raised in these complaints appear to concern the
   application of the Sex Discrimination Act to the Department of
   Defence Regulations relating to HPSEA and other forms of
   re-establishment assistance and the compliance or non-compliance of
   those Regulations with the Act.
   This issue is a matter for legal argument. It is difficult to see
   from the documentation to date what relevant evidentary (sic) matters
   there may be which require oral examination."
   On 5 September 1990, the Australian Government Solicitor wrote to the Registrar:-
   "I would be pleased if this matter could be listed for a Directions
   Hearing so that the parties may be informed of the procedure to be
   adopted by the Commission in this matter."
   The Registrar responded on 8 October 1990:-
   "Thank you for your letter dated 5 September 1990 requesting a
   directions hearing in this matter. Subject to your reasons you may
   wish to provide, I am unable to see the need for such a hearing.
   I confirm that
   ...
   (ii) the inquiry will proceed on the basis of written submissions
   relating to the question of law as to whether certain Department of
   Defence provisions/determinations infringe the Sex Discrimination Act
   1984."
   The Australian Government Solicitor responded on 24 October:-
   "The respondent maintains its position as stated in my letter of 7
   June 1990. It accepts the inquiry proceeding on the basis of written
   submissions to determine as a question of law whether certain Defence
   Determinations infringe the Sex Discrimination Act 1984, providing
   such inquiry confines itself to legal questions and does not take
   into account complainants' assertions. If, however, the Commission
   proposes to make findings involving the factual assertions made by
   the complainants, the respondent requests that the matter be listed
   for an oral hearing as not to do so would, in its view, prejudice its
   position by being denied the opportunity to fully test the
   complainants (sic) material."
   

6. In the light of this correspondence, I would not uphold Miss Henderson's submissions that there was procedural unfairness, although what occurred was scarcely a public inquiry as contemplated by s.66 of the Act. I would not make any order in this respect. The Commonwealth's solicitor consented to the procedure and the matter was dealt with on the papers. So far as Messrs Dopking and Thomas were concerned, the Commission did not take into account any facts that were in dispute.

7. Where the procedure went astray, in my view, was that the issue was never that as stated on 8 October 1990, namely a limited question of law as to whether the Determinations 0505 and 0509 infringed the Act. To treat the matter in that way was to treat the matter as though the criteria that treatment be less favourable and that the circumstances be not materially different were irrelevant or necessarily satisfied. The case which I assume the Commonwealth wished to put was that the circumstances of officers who were living in a household with their spouse and children were materially different from the circumstances of officers who were living on their own and that single officers, though treated differently from married officers, were in all the circumstances not treated any less favourably. That case involved facts as well as law. Therefore, by stating the issue as he did, the Registrar shut out consideration of the Commonwealth's case and led inevitably to the result that issues which were crucial were not discussed in the Commission's reasons.

1. The point is not one of procedural fairness but rather that, flowing from the manner in which the inquiry was conducted, all the requisite issues were not addressed.

2. For the reasons I have mentioned, I am of the view that the Commission's decision of 14 May 1991 should be set aside and that the matter should be remitted to the Commission for reconsideration according to law. I should add that I see no objection to the Commission being constituted by the President for the purposes of rehearing. This is simply a case where there are issues still to be addressed. Liberty to apply within 14 days with respect to costs will be reserved.