Human Rights & Equal Opportunity Commission v Commonwealth of Australia

[1994] HCATrans 414

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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

Application for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 8 AUGUST 1994, AT 10.21 AM

Copyright in the High Court of Australia

Human 8/8/94

MR D.F. JACKSON, OC: If the Court pleases, I appear with my

learned friend, MR M.G. NICHOLLS, for the

applicant. (instructed by Ian Clyde, Human Rights

and Equal Opportunity Commission)

MR B.W. WALKER, SC: May it please Your Honours, I appear

with MS R.M. HENDERSON for the respondent.

(instructed by the Australian Government Solicitor)

MR JACKSON:  Your Honours, this application is concerned

with an issue which lies at the heart of both the

reach and the practical operation of the

Sex Discrimination Act 1984 in three of its major

applications. They are, as in this case, in

relation to discrimination on the ground of marital

status, section 6; secondly, in relation to sex

discrimination, section 5; and, thirdly, in
relation to discrimination on the ground of

pregnancy, section 7; the provisions are in

similar terms.

McHUGH J:  Mr Jackson, why would it not be better for this

application to stand over until the 6(2) issue is
dealt with? If the Court is against you ultimately

- or even granted the Court was against you - then

it will still go back, and then that might come up

here.

MR JACKSON: Well, Your Honour, I prefer to say this, that

the issue I submitted a moment ago is of

significance importance to both the reach and the

practical administration of the Act, and may I seek

to develop that just a little in relation to what

Your Honour has put to me. It affects the reach of

the Act because section 6(1), it is submitted,

reflects a legislative value that there shall not

be discrimination on the grounds specified in that

subsection or in its equivalents in the other two

sections, and when one goes to - - -

GAUDRON J: But it then defines what discrimination is - - -

MR JACKSON: Yes.

GAUDRON J: Yes, and that is your problem, not that there is

a prescription on it, but your problem is fitting

it within the definition.

MR JACKSON:  Your Honour, that is the issue on which we

would seek the grant of special leave, and that is

the issue on which there was a division of view in

the Full Court, and a matter on which the President

had a different view again from the majority.

Now, Your Honour, if I could just stay for a

moment with what Your Honour Justice McHugh put to

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me. Section 6(2) deals with a more limited range

of matters, namely, the imposition of conditions

which may result in discrimination. The point, in

our submission, in relation to section 6(1) is

this, that the practical administration of the Act

is greatly affected, if the other side is right,

because it would become necessary to examine the

facts of cases at length to determine

reasonableness and, Your Honours, that is why, in

our submission, the Court should not, in this case,

accede to, in a sense, the lure, if I could put it

that way, Your Honours, because in a way it has its

attractions, of course, in paragraphs 12 and

following in our learned friend's submissions,

namely that the question whether the facts fit

section 6(2) should first be determined because the

whole point, in our submission, of subsection (1)

is to avoid the need for inquiries of that kind

and, Your Honour, what to accede to that submission

would do is really to put this case into the

situation which, if our submissions are correct,

it should not be in, in any event.

GAUDRON J: But, does the problem not arise from the way in

which the case was conducted? I mean, what you are

saying, in essence, is that the Human Rights and

Equal Opportunities Commission can determine

matters segmentally if they like. I find this

quite peculiar, in this sense, that one issue has

been looked at in circumstances in which nobody is

obliged to abide by the decision. That facts are before this Court. It cannot be before
notwithstanding, it has been looked at twice by the

this Court because subsection (2) has not been

looked at.

MR JACKSON: Well, Your Honour, that is true if one is

looking at subsection (2), but if one is looking at

subsection (1), all the facts are before the Court.

It is simply a matter really in the sense of

looking at what is the most - two or three basic

facts, together with the interpretation of the

determination, which is clear enough, and the Act

itself. Can I perhaps seek to put it in another

way: one of the objects of section 6(1), if our

submission is correct, is to avoid entirely the

need for inquiries of that kind.	Now, it is true
to say - - -

GAUDRON J:  How can you say that? Section 6 is a composite

section directed to discrimination in the broad.

You measure it - well, you determine whether it has occurred in one of two ways: either by making it

fit within subsection (1) or making it fit within subsection (2), but it is directed to one concept of discrimination.

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MR JACKSON: Well, it is directed to one area of

discrimination, Your Honour, but it does seem to
deal, Your Honours, in terms with two distinct

concepts, some overlapping, of course. But if one

looks at the first of those concepts it looks to

treatment and determines whether treatment is or is not treatment less favourably as in the way defined

in the section. Your Honour, if one goes to

subsection (2) one sees that it looks at the result

of the treatment - if I can put it that way, which

perhaps is a slightly inexact way of putting it -

and, Your Honour, it does not turn upon there being

discrimination simply by virtue of treatment.

The question whether the first provision has

that ambit and thus has the effect of not requiring

there to be an investigation of the question of

reasonableness is a matter, in our submission, of

considerable importance because it does affect both

the ambit of the Act and how it operates and,

Your Honours, that is something that, in our

submission, should be dealt with by the Court at

this point.

MASON CJ:  I can see that there is a difficulty if the

matter goes back and the Commissioner, contrary to the view that he has already formed but giving, as

it were, way to the view expressed by the Full

Court of the Federal Court, then decides in your

favour on subsection (2) of section 6.

MR JACKSON: Well, Your Honour, that means the issue then

would not be decided -

MASON CJ: Exactly.

MR JACKSON:  And, that is a distinct possibility, and one is

then left with the decision of the Full Court which

one would have to seek to attack in some other

proceedings.

MASON CJ: Yes.
MR JACKSON:	Now, Your Honour, that is a real practical

difficulty. I do not know that I can advance the

argument further in relation to this question,

except to say that to send it back, as it were, is

to fall into the evil - if I may use that

expression - that is, the result of the

interpretation which is the result of the Full

Court. Your Honours, that is what I wanted to say

in relation to that question.

May I turn then to the substance of the

matter. Your Honours will see that the terms of

section 6(1) turn upon there being:

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Discrimination on the ground of marital

status ..... if, by reason of:

(a) the marital status .....

(b) a characteristic that appertains

generally to persons of -

that status; or:

(c) a characteristic that is generally

imputed to -

them -

the discriminator treats the aggrieved person

less favourably than, in -

similar -

circumstances ..... the discriminator treats or

would treat a person of a different marital

status.

Your Honours, the view adopted by the majority was

that the tests - if I can call them that - set out

in the three paragraphs of section 6(1) are not

carried over into the concluding words of it, that

is:

treats or would treat a person of a different

marital status.

I will take Your Honours in just a moment, if

I may, to the way in which that was put in the

judgments of the majority and the competing view of

Chief Justice Black, but may I just say one thing

about the facts and it is this, Mr Dopking is a

serviceman in the RAAF, he was transferred to

Townsville, he was single, he had no dependants. A home purchase or sale expenses allowance is payable

by the Commonwealth in accordance with the

determination, Your Honours will see at page 57,

and may I take Your Honours to page 58, clause 17

of that. Your Honours will see, between

lines 25 and 30, that:

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 -

et cetera. Your Honours, perhaps I should say,

some definitions of "family" are on the preceding

page between lines 10 and 28. Your Honours, the

President of the Human Rights Commission and all the members of the Full Court have held that in

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terms of section 6(l)(b) it is a characteristic

appertaining generally, though not of course

universally, to persons having the marital status

of single persons that they do not have a family.

Now, I should say that marital status is

defined for the purposes of the Act by

section 4(1).	May I take Your Honours to that for
just one moment.	You will see that it means:

the status or condition of being:

(a) single;

(b) married;

then a distinction is drawn between "married" and:

(c) married but living separately and apart

from one's spouse;

so, presumably, "married" without the qualification

means living with one's spouse.	Your Honours will
see also a reference to:

(f) de facto spouse -

and that is defined in a way in which one might

expect earlier in section 4, "de facto spouse",that

is persons living with others.

Your Honours, the difference in view, as I

said in the Full Court, was in relation to the

concluding words of section 6(1).

Mr Justice Lockhart, one of the majority, expressed

the test at page 70, lines 14 to 22. Your Honours

will see in that passage in the first two sentences

of it that he said "the comparison" was required:

to be made between Mr Dopking as a person with

the characteristic mentioned in paragraph (b)

or (c) of sub-s. (1) and a person of a

different marital status. There is no	extension of that other person's marital
status for the purposes of the section.

And he went on, Your Honours, to develop that

through the remainder of that paragraph, and then a
passage that went through to line 21 on the next

page.

GAUDRON J: But, what is the person of a different marital

status in this case? You see you have got a

problem, have you not, with - one would think that

you were looking to the exact opposite.

MR JACKSON: Well, Your Honour, take "married".

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GAUDRON J: Married and living with one's family?

MR JACKSON: Well, that is what "married" means.

GAUDRON J: Well, married and living with one's family, or

married and not living with one's family, as in the

definition of "marital status", the third part of

it, I think it is?

MR JACKSON:  The first thing I would say about that,

Your Honour, is that one is entitled to compare it

with any of the statuses - if that be the right

plural -

GAUDRON J: Well, I am none too sure that that is right, is

it? Why would you compare it, say, with a divorced

person?

MR JACKSON:  Because that is what the section says. It

says, "a person of a different marital status",

that is different form the first person mentioned

in the subsection, and if one goes -

GAUDRON J:  Why do we not make the comparison with "married

but living separately and apart from one's spouse"?

MR JACKSON:  In that case the person is not being treated differently from that person -

GAUDRON J: Exactly.

MR JACKSON: But, Your Honour, the person is being treated

differently from a person having another marital

status, that is a person who is married, which in

the arrangement of that definition would seem to

mean "married and living with a spouse" and,

similarly, de facto spouse.

GAUDRON J: Then what weight do you give to the words, "in

circumstances that are the same or are not

materially different"?

MR JACKSON: 

One treats them as meaning really what they

say, what they are, and that is it defines the area
or the area within which the discrimination takes

place.  Now, I will not attempt to define it

exhaustively, but in the particular case, it means in relation to the provision of this allowance for service people who are transferred from one place

to another in the course of their duties.

GAUDRON J: 

And would the consequence of your argument be

that all unmarried men without family would have to
get the allowance, whereas married men with family
would only get the allowance if their family was

with them?

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MR JACKSON:  I think the answer is no, Your Honour. They

would all be entitled to get it, all or none.

GAUDRON J: So, all the conditions would be invalidated?

MR JACKSON:  The only conditions, Your Honour, are two, one

is - - -

GAUDRON J: That you have your family with you.

MR JACKSON: 

Yes, and the other is, well I suppose one in

the end, that you have a family, but the term
family, of course, for the purposes of that

determination, Your Honour will see, at page 57,
the definition of "family" and that is:

persons who normally reside with the member. Your Honours, the situation really, of course, is

that if one looks at the marital status "married" in the Act it is inherently someone living with a

spouse. Whilst it is true that it may not be
universal that every person who is married has
their spouse living with them at the very moment,

that would seem to be inherent in the definition of
that part of marital status.

Your Honour, equally, whilst it is true that

if one looks just at the term "marital status" by

itself, without treating it as a defined term, and

if one compares that with the terms of the

determination, one can adopt the view that was

taken by Mr Justice Lockhart, and also by

Mr Justice Wilcox at page 87 line 16 to 88 line 21,

but at the same time one looks at the whole of

section 6(1) and we would submit that it is

apparent enough that what is contemplated is that

the term:

treats, or would treat, a person of a

different marital status -

comprehends treatment by reference to matters set

out in the earlier subsections, that is, the

characteristics there referred to.

MCHUGH J: Is there any legislation to amend these sections

on foot? These sex discrimination - - -

MR JACKSON:  The answer is no, Your Honour.

MCHUGH J: There is not?

MR JACKSON:  No. Your Honour, I am conscious of the fact

there is a lot of publicity about the Act, it is

10 years old, but these sections are not - - -

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McHUGH J: Well, worse than that. You see I think the

drafting of it really can be traced to the

Racial Discrimination Acts, and to talk about

treating people less favourably and that, it works

well in terms of race. When you get into the area

of sex, it has always seemed to me that it just

uses criteria that is very difficult to apply in

many situations.

MR JACKSON:  Your Honour, can I say that the same scheme, I

think, broadly speaking, is used; the same

terminology is not. The Racial Discrimination Act,

of course, is significantly earlier, nearly

10 years earlier than this, in 1975, but I do

not - - -

McHUGH J:	I was really thinking of the English Racial Discrimination Act -
MR JACKSON:	Your Honour has the advantage of me in that

respect. Your Honour, I do not know that I can

take that really any further - - -

GAUDRON J: But, I take it the situation is this, that if

your argument is correct, then the allowance has to

be paid to everybody, ultimately - it may need two

or three cases to work this out - but, ultimately

everybody is to get the allowance whether he or she

has his or her family with him or her?

MR JACKSON:	Yes.
GAUDRON J:	And then, in due course, the next case around,

everybody is to be offered barracks accommodation

whether or not they have got a family. I tqke it

barracks accommodation must in due course be

provided for men and women with families if they

want to live in barrack accommodation as well?

Because otherwise that is a discrimination.

MR JACKSON: Well, Your Honour, that is possible, yes, maybe

the determinations are amended before that, who

knows?

GAUDRON J: All of which would tend to suggest, would it

not, that you really should be looking at

subsection (2) rather than subsection (l)?

MR JACKSON: Well, Your Honour, in our submission, no. This

is a particular case but it raises a general

question which does not really carry over

necessarily the way Your Honour has put it.

GAUDRON J: Well, certainly, if you succeed the first thing

that is going to happen is that single people are

going to get the allowance in circumstances in

which people with families do not.

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MR JACKSON: People with families, Your Honour, will be

entitled to get the allowance.

GAUDRON J: If they have got their family with them?

MR JACKSON: If they satisfy the test. That is all that

is - - -

GAUDRON J:  Which is that you have your family residing with

you.

MR JACKSON:	Your Honour, normally residing, normally.
GAUDRON J:	No, no, because even if a service person goes to

Townsville, leaving her husband and children behind

in Sydney, for example, she does not get the home

purchase allowance.

MR JACKSON:  It depends on the

GAUDRON J:  Is that not right? Am I misreading it?

MR JACKSON:	Your Honour, "member with a family" is defined for the purposes of the determination to mean a
member with whom one or more members of the family
normally reside.

GAUDRON J: But, if she goes to Townsville leaving her

husband and children behind in Sydney, she does not

get the allowance for the purpose of moving to

Townsville?

MR JACKSON:  Yes, Your Honour, yes.

GAUDRON J: Whereas, a single women, if your argument

succeeds, will automatically get the allowance if
she goes to Townsville and wishes to buy a house

there?

MR JACKSON:  Yes, Your Honour. Well, then equally -

Your Honour, I see the time has concluded in

relation to -

MASON CJ:  The Court need not trouble you, Mr Walker, except

you may feel it necessary to respond to this. The

Court, subject to what you may say, has come to the view that the matter should stand over to await the decision of the Commissioner.

MR WALKER:	Your Honours, we would oppose it standing over as opposed to being dismissed for this reason. The
findings of fact which are required to be made in a subsection 6(2) reasonableness determination are
findings of fact which, as Your Honours will be
aware, will obviously focus on the overall package approach and the household aspect, both of which
were argued by my learned junior at both stages

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below. Those matters have already been canvassed

to some extent, there have been no determinations

on them at the moment, but they are, in our

submission, matters which may result in something

very ripe for this Court's determination of the
overall, or composite, effect of section 6 or may
result in something which shows that the case turns

entirely on a matter of fact concerning, for

example, the appropriate allocation of resources in

various postings around Australia.

Now, those are matters which would confine

this case alternatively to a relatively narrow

piece of military budgeting or to a larger aspect
of whether section 6, construed in the fashion the

Full Court has construed subsection (1) in

particular, provides coverage which is concomitant

with the purpose of the Act as a whole, and that,

finally, brings us to the last matter.

Your Honour Justice McHugh asked about whether

there are any amendments and, like my friend, all I

can say is that everyone knows that the 10th

anniversary elicited an announcement that there

will be amending legislation. It is not before the

Court because we have absolutely no details beyond what has been reported in the press about that, and

that does not condescend to sufficient detail to

enable us to tell Your Honours that the particular

point already raised has been, or will be, looked

after by amendment.

However, that is a further circumstances

which, in our submission, would justify dismissing

this application and leaving to future events

particularly the findings of fact about the

military allocation of resources before deciding

afresh whether this is a case appropriate for

special leave. May it please Your Honours.

MASON CJ:  The Court is of the opinion that the matter

should stand over to await the decision of the

Commissioner, and to that end the application will

stand over to a date to be fixed.

AT 10.45 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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