Human Rights and Equal Opportunity Commission v C of A

[1996] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S185 of 1993

B e t w e e n -

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry
  Sydney  No S4 of 1996

B e t w e e n-

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave to appeal

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 1996, AT 12.43 PM

Copyright in the High Court of Australia

________________

MR J. BASTEN, QC:   If the Court pleases, I appear with MR I.J. CLYDE, in both matters.  (instructed by the Human Rights and Equal Opportunity Commission)

MR J.S. HILTON, SC:   If your Honours please, I appear with my learned friend, MS R.M. HENDERSON, for the respondent in each matter.  (instructed by the Australian Government Solicitor)

TOOHEY J:   Yes, Mr Basten.

GUMMOW J:   What has happened to Mr Dopking?  Why is he not a party?

MR BASTEN:   He is not a party, your Honour, because no order is sought in relation to him in relation to the special leave application.  He has been in communication with the Commission and does not wish to participate in the proceedings.

GUMMOW J:   He will not be bound by any decision.

MR BASTEN:   He may not be, your Honour.  He can be made a party to the appeal if that is thought appropriate.  The Commission’s concern is not so much with the outcome of the - - -

GUMMOW J:   Quite.

GAUDRON J:   That is the difficulty with this.  It may not be precisely so but it looks awfully like a request for an advisory opinion.

MR BASTEN:   If the view were taken that it had that form, then we would seek to join Mr Dopking to any appeal that was permitted to be brought.  As I have said, Mr Dopking is aware of the present proceedings and did not wish to be involved at this stage of the matter.  Whether or not a judgment would bind him is, of course, a question which I accept is - - -

GUMMOW J:   But you were in the court below as an intervener, were you not, under your statutory enablement?  How were you there?

MR BASTEN:   It was an AD(JR) application and we were a party to that as the decision maker.

GUMMOW J:   Yes, but you are governed by the ordinary rules which say that the Tribunal, as it were, stands mute:  Hardiman and all those cases.

MR BASTEN:   We accept that, your Honour.

GUMMOW J:   Not an active litigant.

MR BASTEN:   We are not an active litigant except to the extent - - -

GUMMOW J:   Well, why are you here?

MR BASTEN:   Well, except to the extent permitted by Hardiman.

GUMMOW J:   You would not be here if Hardiman was applied, as a sole applicant for special leave, when you have not joined the real party and interest.

MR BASTEN:   Yes.  Your Honour, that was not a matter which was raised in relation to the first application when we came here.

GAUDRON J:   Mr Dopking was here then, I think, was he not?

MR BASTEN:   I think he was not a party, your Honour.

MR HILTON:   He was and he adopted the arguments.

GAUDRON J:   He was here - my recollection - represented by Mr Jackson, I think, was he?

MR HILTON:   No, in person.

MR BASTEN:   I may have been misled by the cover of the application book which did not name him but certainly if that were thought to be a difficulty that he is not here in relation to that proceeding - - -

GUMMOW J:   There will be difficulties in a mere intervener doing what you have done, Mr Basten.  When you are a Hardiman tribunal, it is a fortiori.

MR BASTEN:   The matters were dealt with in a particular way down below, your Honour.

GUMMOW J:   Well, they may have been.  It is about time people got things in proper order.

MR BASTEN:   Can I deal with them separately?

GAUDRON J:   You do have a number of problems as well as that one.

MR BASTEN:   I am happy to deal with them in turn, your Honour.

TOOHEY J:   Perhaps if you proceed and the other problems will surface as you go along, Mr Basten.

MR BASTEN:   No doubt, your Honour.  In relation to the 1993 application which was before this Court on a previous occasion, that problem, in my submission, does not arise because Mr Dopking, if what your Honour says is correct, was a party.  As I have indicated, he need not be here as a party if he is happy for the matter to go on without him, and he would be bound by any outcome to the decision.  The application for special leave to appeal does not name him but if it were thought appropriate that he be involved, then the appeal could name him.

GAUDRON J:   He did not appear, did he?

MR BASTEN:   He did not appear, according to the transcript, but your Honour may have a recollection of him being present.  I was not here, so I do not know.

GAUDRON J:   Can I alert you to two other matters.  Your direction no longer has force and your Act has been changed.

MR BASTEN:   Can I deal with those two separately?

GAUDRON J:   And Mr Dopking, apparently, has no interest in pursuing the matter.

MR BASTEN:   To say that he has no interest, your Honour, is to make a judgment about his financial interests.  The amount of money involved for him is obviously small compared with the cost of not only his own costs were he to appear but any adverse costs order he might face.  So, to say he has no interest is not to say he has no legal interest in pursuing the matter.

In relation to the change to the legislation, the change is not to section 6(1) which was the subject of the 1994 application and which does raise, we would say, important questions.

GUMMOW J: Section 6(2), is it not?

TOOHEY J:   It affects the eligibility criteria, does it not?

MR BASTEN:   I am sorry, the change to the Act?

TOOHEY J:   Yes.

MR BASTEN:   But, I am sorry, I was saying there was no change to section 6(1) under which the first - - -

TOOHEY J:   What changes were made to 6(2)?

MR BASTEN:   The changes which were made to 6(2), we would say, are largely a reversal of an onus of proof provision and some criteria are now specified in section 7(4) of the Act which we would say are largely consistent with the accepted approach adopted by the Full Court of the Federal Court in Styles and, perhaps not discussed in this Court in any extent, but we would say is not inconsistent with the question which is raised under the second application.

TOOHEY J:   But it all seems to add up to neither of these applications being a particularly suitable vehicle to explore the various questions that you would seek to agitate.

MR BASTEN:   In response to the second one, your Honour, I understand the argument that the Act has changed and the determination has changed as taking some force out of the 6(2) argument.  If that is so, of course, that gives heightened weight to the need to consider the 6(1) argument because that is the only basis left on the view that the Federal Court - - -

GUMMOW J:   It makes it an inconvenient vehicle because one would want to look at both.

MR BASTEN:   With respect, I am not sure whether that is necessarily correct, your Honour, because all that one needs to - - -

GUMMOW J:   This notion of “indirect discrimination” label which is used - - -

MR BASTEN:   Is imprecise.

GUMMOW J:   Yes.

MR BASTEN:   The only issue, of course, which arises in relation to the second application is whether, in the circumstances, the “not unreasonableness” criterion was fulfilled.  Now, in relation to the first application, the question is whether or not there was a characteristic - that seems to have been common ground - and if so, whether there was discriminatory treatment on the basis of that characteristic because if this Court’s dicta to the effect that the two elements, 6(1) and 6(2), are mutually exclusive is correct, then if the matter does fall as was held and not challenged for the purposes of the AD(JR) application within section 6(1)(b), namely, as involving a characteristic appertaining generally to persons of the same marital status as the complainant, then the question arises squarely as to whether the test applied to the comparison in the Full Federal Court by the majority was correct or not. With respect, I do not see any difficulty in that being appropriately determined in this case because what the Full Federal Court said involved the application of the specific terms of section 6(1).

If I might just take your Honours to that section.  It is set out in the application book at page 33 in helpful form.  The provision which is in its current form says:

For the purposes of this Act, a person discriminates against another 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 -

and I leave out (c) -

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.

Now, what the Full Court said was that when you are dealing with a characteristic you nevertheless have to compare that simply with a person of a different marital status and you do not ask whether or not that person has the characteristic or not.  That, we would say, is comparing apples with oranges.  It is necessary, if one is to give effect to the extended ground within 6(1)(b) to take account of the essential characteristic which is adopted as the ground of comparison.  That is what the Full Court in the majority did not do.  With respect, that provides no work to the extension in 6(1)(b) in the absence, perhaps, of two conditions.  One is that the characteristic is unique to the particular marital status rather than simply being a characteristic that appertains generally to it.  Possibly, the other is where the comparator inevitably does not have that characteristic. 

As the Chief Justice suggested in the Full Court, in relation to the latter matter, when one is looking at the question of de facto spouse in relation to a characteristic defined as being a member with family, that will, of course, almost inevitably be fulfilled.  But there is no reason, in my submission, to limit a characteristic that appertains generally to a situation where that is the case.  Nevertheless, that would have allowed the complaint to be upheld properly in the present circumstances.

Similarly, in the comparison which was attempted, namely, between a single person with the characteristic, that is being without a family, and a married person, it is, of course, is true as the Full Court said that the complainant will fail if, indeed, the true ground of distinction was the characteristic because it will not inevitably follow that someone of a different marital status will be treated differently.

Now, that, with respect, means that the characteristic ground is limited to the circumstances that I have suggested and that, in our submission, is an unduly narrow approach to be taken to the Act, one which was thought inappropriate by the President and by the Chief Justice in the Full Federal Court.  If that is the correct interpretation of the Act, then it is obviously a matter of some importance and it is a matter which this Court should appropriately consider.  There is nothing inappropriate, with respect, for this case to be considered a vehicle to do that.

It may, indeed, be said that the majority thought that the matter should go back and this Court, in 1994, thought it should be considered by the Commission again before deciding whether or not to grant special leave. It was not considered a case in which special leave should be rejected out of hand. What, of course, this Court did not know at that stage was that there would be no dispute about section 6(2) ultimately being applicable subject to determinations as to whether or not the requirement, if it were so to be defined, were reasonable.

Your Honours, it is for those reasons that we say that this is an appropriate case for consideration by this Court.

TOOHEY J:   Yes, thank you.

MR BASTEN:   May I just say that I took it - I have not addressed the merit of the argument in relation to the second application.  If the Court were willing to consider that aspect of the matter, I think I took it from comments that came from Court that it was thought to be inappropriate because of the Commission’s role - - -

TOOHEY J:   No, not confined to that, Mr Basten.

MR BASTEN:   Yes.  If it were relevant for me to address the merits, whether at this stage or later, I did not mean by sitting down and not talking about it to suggest that I did not wish to do that.

TOOHEY J:   It is a matter for you to complete your submissions.

MR BASTEN:   On both of the applications.

TOOHEY J:   Yes. 

MR BASTEN:   In that case, your Honour, I would wish to address the ‑ ‑ ‑

TOOHEY J:   In that event, Mr Basten, we will adjourn until 2.15.

AT 12.58 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.20 PM:

TOOHEY J:   Mr Basten, we were part way through your submissions.

MR BASTEN:   Yes. Could I take your Honours briefly, and I will try to do this as briefly as convenient, to the second application in matter No 4 of 1996, the one relating to section 6(2). Firstly, in relation to the importance of this matter, whilst I concede that there has been a change, however significant we need not trouble ourselves with at the moment, I think, in relation to the Sex Discrimination Act, the legislation in the form which was considered by the Full Federal Court is the form in which it appears in every State of Australia and, similarly, in the ACT, though not in the Northern Territory.  So we would say that the matter has importance in terms of its principle for that reason.

Secondly, in relation to the approach taken by the Full Court to the question of the application of section 6(2)(b), namely, whether or not the requirement that was imposed was not reasonable in all the circumstances of the case, there were two issues which were discussed by the President and were the subject of consideration in the Full Court. They were, of course, factual matters. The first of them was that the requirement was said to reflect the needs and the community perceptions in relation to people without as opposed to people with family.

The second matter which, of course, is not necessarily consistent with the first in terms of its application was that the Commonwealth had resource allocation priorities which were reflected in the fact that it wished to give an incentive to people who had family to go off base and acquire their own accommodation and lack of incentive, as it were, to people who did not have family in that regard and a positive incentive for them to remain on base.

Now, in relation to those two matters, the decision in the Federal Court is succinctly dealt with by Justice Lockhart at pages 26 to page 27 and at the bottom of that page what his Honour says, at about line 50, is:

the Commission was of the view that the condition did discriminate between members of the Defence Force with a family and those without a family, and therefore, that it was unreasonable.

He then goes on to note that the Commission treated the approach of the Defence Force as, at line 55, “prima facie discriminatory”, picking up a phrase which was used by Justice Brennan as he then was in Waters’ Case.  He says:

therefore unreasonable, irrespective of any material differences in the needs and circumstances of each category of member.

Now, with respect, they were considered and discounted by the President at page 7 at about line 7.

When one seeks to determine what precisely his Honour meant by saying that they were not considered, irrespective of the needs, I think one needs to go to page 27, at lines 25 to 30, where his Honour says:

The Australian Defence Force perceived that the needs, expectations and personal circumstances of the two categories of members of the force were materially different, so that it was appropriate to provide for them differently.  The resulting differences in their accommodation entitlements were based on the perceived fundamental differences.

And at the bottom of page 27 at line 50, his Honour indicated that this was not a matter which the Commission had considered.

If I might be permitted in that context to pick up what Justice Sheppard says because I think it is consistent.  At page 30, at line 28, his Honour said:

In my opinion the requirement is plainly reasonable within the meaning of the subsection.  That is not a subjective view of my own.  Rather, it is an acknowledgment of the power of those responsible for the determination to determine, upon reasonable grounds, the category or categories of members of the Defence Force who are to be entitled to the benefits provided for in the determination.

And I skip the next sentence.

In other words, the point of distinction which has been adopted has a logical and understandable basis.

With respect, we would say that that omits the considerations which perhaps rather nicely the President raised at page 7, at line 7 and following, namely, that although one might think married people are those who seek privacy in their personal relationships, nevertheless, single people may have equal needs for privacy and those perceptions are not taken into account and should be considered.  Clearly, the President also considered, at line 20 on that page, the resource implications which he discounted.

Now, what we would say then is that, in substance, what the majority has done, and I think Justice Lindgren is to similar effect, is to say that where there is a perception of the employer based on reasonable grounds, that is sufficient to justify a conclusion and, indeed, in law, will justify a conclusion that the condition or requirement is not unreasonable. That, with respect, we would say, is an error of law in the context of section 6(2)(b).

In the time available, your Honours, may I just say one other thing in relation to the Hardiman point which was raised against us because it is raised, not in the first case but in this case, and discussed by Justice Lockhart at page 28.  If I may make the point succinctly.  Firstly, his Honour quotes from BTR plc v Westinghouse Brake.  May I say the Commission accepts the principles as enunciated there.  It is the Commission’s position, of course, that at line 47 there is a role for it to play where the issues raised are of national significance.  Of course, it is obviously the Commission’s view that this is the case in the present litigation or we would not be making an application for special leave to appeal.

Above that, it is also indicated in that decision of the Full Federal Court that even where a commercial issue arises but is not fully or properly canvassed by the parties, it may be appropriate - - -

GUMMOW J:   The Australian Securities Commission has statutory rights.

MR BASTEN:   That is so and so does this Commission as noted by his Honour on the next page in 31(j) of the Human Rights and Equal Opportunity Commission Act which his Honour thought relevant although, perhaps, not necessarily determinative.  The ASC was not, I think, in the role of an intervener in pursuance of its statutory rights.  As I understand it, it is simply the Hardiman principle that was being applied in BTR but I accept what your Honour says.

GUMMOW J:   Yes.  I do not see what BTR has anything to say about the Hardiman principle.  I know it is referred to in the - - -

MR BASTEN:   Yes, I take the point.

GUMMOW J:   Mr Dopking was a party, of course, and actively participated, did he not?  He had senior counsel.

MR BASTEN:   He was not when we first intervened, your Honour, and there was an arrangement with him - - -

GUMMOW J:   In this judgment he had senior counsel.

MR BASTEN:   He had senior counsel who played a limited role.  His Honour then goes on to say that in the earlier case he was also represented.  That was simply not true.  The report at 46 FCR indicates that he was not represented in the earlier case in any way and was not expected to be in these proceedings.  But subject to that, I do not wish to necessarily canvass what their Honours say, I merely try to explain why the Commission took the position it did.

In relation to Mr Dopking’s role in these proceedings, he was served with copies of the papers and has been in touch as recently as this morning with the Commission, so he is not unaware of the proceedings before this Court.  As I indicated before, if special leave were to be granted conditional upon him being joined, we would have no objection to that course.

TOOHEY J:   Thank you, Mr Basten.  We need not trouble you, Mr Hilton.

The Court has before it two applications for special leave to appeal. They raise issues concerning the meaning and operation of section 6 of the Sex Discrimination Act 1984 (Cth). Mr Dopking does not pursue his claim in this Court and the Commissioner has assumed the role of sole applicant. The eligibility criteria in the relevant determination have now been changed and, so far as concerns the second application, the Act has been amended in relevant respects. In all the circumstances, neither application is a suitable vehicle for the elucidation of any point of principle. Each application is therefore refused.

MR HILTON:   With costs?  I ask for costs, your Honour.

TOOHEY J:   Can you say anything about that, Mr Basten?

MR BASTEN:   No, your Honour.

TOOHEY J:   Each application is refused with costs.

AT 2.30 PM THE MATTER WAS CONCLUDED