Monash University v Kapoor
[1999] VSC 463
•9 December 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Send for Reporting Not Restricted
No. 4034 of 1999
| MONASH UNIVERSITY | Appellants |
| and | |
| HELEN CURZON-SIGGERS | |
| V | |
| UMA TIWARI KAPOOR | Respondent |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 1999 | |
DATE OF JUDGMENT: | 9 December 1999 | |
CASE MAY BE CITED AS: | Monash University v Kapoor | |
MEDIA NEUTRAL CITATION: | [1999] VSC 463 | |
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Discrimination – equal opportunity – discrimination in employment on grounds of race and religious belief – characteristics of race and religion – whether personality trait is capable of being a "characteristic" - whether discrimination on basis of a characteristic must be based on race or religion – whether, for purposes of characteristic-based discrimination, the comparison is with a person of different race and religion and lacking the characteristics – relationship between Equal Opportunity Act 1984 s. 17(1) and s. 17(4) – onus on complainant to prove less favourable treatment is based on race or religion.
Equal Opportunity Act 1984 ss. 4, 17(1), 17(4), 21
Equal Opportunity Act 1995 ss. 6, 7, 8, 13, 14
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APPEARANCES: | Counsel | Solicitors |
For the Appellants | Mr D. Chan | Arthur Robinson & Hedderwicks |
| For the Respondent | Mr M.B. Phipps QC with Ms M. Young | Martin Willoughby-Thomas |
HIS HONOUR:
Before the court is an appeal brought pursuant to s. 148 of the Victorian Civil and Administrative Tribunal Act 1998, by Monash University ("Monash") and Helen Curzon-Siggers against Uma Tiwari Kapoor against a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) given on 11 December 1998. The proceeding before the Tribunal was a complaint lodged on 12 July 1996 by Dr Kapoor with the Equal Opportunity Commission pursuant to the Equal Opportunity Act 1995. The complaint alleged discrimination on the grounds of race, religious belief, marital status, status as a parent or carer, personal association and claimed victimisation, all against the firstnamed appellant, Monash, the secondnamed appellant, Ms Curzon‑Siggers, and against Professor Susan Campbell.
Those parts of the complaint based on the grounds of personal association and marital status were abandoned during the Tribunal hearing. By its decision and order the Tribunal dismissed the complaint against Professor Campbell and those parts based on Dr Kapoor’s status as a parent or carer and personal association, and that based on victimisation; it found Dr Kapoor’s complaint against Monash and Ms Curzon‑Siggers of discrimination against her as a job applicant and employee on the basis of race and religious beliefs proven. It ordered them to pay compensation for loss of income in the sum of $84,984.44, general damages in the sum of $10,000 and aggravated damages in the sum of $7,000. Further orders were made directing that certain documents be removed from Dr Kapoor’s personnel file and that Monash and Ms Curzon‑Siggers provide a written apology to Dr Kapoor.
The right of appeal against such an order to this Court is on a question of law: Victorian Civil and Administrative Tribunals Act 1998 s. 148(1). The five questions of law certified by the Master and two further questions added by leave during the hearing in this Court were the following.
"(a)Whether the Tribunal erred in its constructions of the definition of ‘race’ or characteristic appertaining to or held by persons of a race in sections 4 and 7 of the Equal Opportunity Act 1995 (Vic) and in sections 4 and 17 of the Equal Opportunity Act 1984 (Vic).
(b)Whether there was any evidence or other material upon which the Tribunal could base its finding that haughtiness was a characteristic of the Brahmin race.
(c)Whether the Tribunal applied the correct standard of proof to its findings of unlawful discrimination.
(d)Whether the Tribunal gave proper and adequate reasons for its decision.
(e)Whether the Tribunal correctly determined the damages which could be awarded to the complainant.
(f)Whether it was open to the Tribunal to hold that the appellants had discriminated against the respondent in contravention of s. 21 of the Equal Opportunity Act 1984 and ss. 13 or 14 of the Equal Opportunity Act 1995, when the Tribunal found that the second appellant had treated the respondent as she did because she held the view that the respondent lacked empathy with the understanding of the special needs of Aboriginal students.
(g)Whether it was open to the Tribunal to hold that the appellants had discriminated against the respondent in contravention of s. 21 of the Equal Opportunity Act 1984 and ss. 13 or 14 of the Equal Opportunity Act 1995, when the Tribunal had failed to find that the appellants treated the respondent less favourably than they would have treated a person of a different status, private life and attribute in the same or similar circumstances."
The Tribunal provided reasons for its decision. They are extensive, occupying 46 pages; they deal with evidence which was received over six days and with two days of addresses. They set out in some detail the history of Dr Kapoor’s employment with Monash and these facts are not, of course, subject to challenge. The transcript of this evidence which comprised some 750 pages and the Exhibits tendered to the Tribunal were placed before me. Nevertheless, I do not see this material as relevant to my task which is to consider and determine the seven questions of law placed before me. I do not understand any of these questions to require me to determine whether a finding of fact is bad for want of evidence.
Dr Kapoor is an academic with a PhD from Monash and a particular interest in English literature. She has experience in the work of teaching English as a second language.
In 1984 Monash established a programme to assist Aboriginal students, called the Monash Orientation Scheme for Aborigines (“MOSA”). Between 1 January 1993 and 30 June 1996 Dr Kapoor was employed by Monash in the MOSA program. In April 1993 Ms Curzon-Siggers was appointed Acting Director of MOSA and she became its director in November of that year. She has held that position throughout most of the period of Dr Kapoor’s employment. Professor Campbell became Acting Director from 23 May 1996 when Ms Curzon-Siggers took sick leave.
Dr Kapoor complains about her treatment at the hands of Ms Curzon-Siggers and Monash which she particularised under six headings, culminating in the non-renewal of her contract upon its expiry in December 1995. She was offered at that time and accepted a six month contract pending the advertisement of a three year contract for which she understood she was eligible to apply. In fact the position which was advertised in May 1996 was different. It specified a qualification for applicants that Dr Kapoor could not satisfy. In the event, the position was withdrawn for want of funds and Dr Kapoor’s services were no longer required at the expiry of her current six month contract on 30 June 1996.
The Equal Opportunity Act 1995 (“the 1995 Act”) came into force on 1 January 1996 repealing the Equal Opportunity Act 1984 (“the 1984 Act”). Where, as here, a complaint made after that date includes contraventions of the 1984 Act the complainant is obliged to establish that the conduct in question was a contravention of both statutes: 1995 Act s. 218.
Dr Kapoor alleged, and the Tribunal found, that she was born in India of the Indian race. She is an adherent of the Hindu religion and, by virtue of her birth, a Brahmin by caste. It found that she had the status or attribute of “race” within the meaning of s. 4(1) of the 1984 Act and s. 6 of the 1995 Act respectively and, further, that her religious beliefs as a Hindu brought her within the ground “private life” in s. 4 of the 1984 Act and within the attribute of “religious belief or activity” in s. 6 of the 1995 Act.
The significance of these findings arises from the terminology of the prohibitions which are central to each of the two statutes.
By s. 21 of the 1984 Act it is unlawful for an employer:
"to discriminate against a person on the grounds of status or by reason of the private life of the person…"
in a number of specified circumstances. The findings to which I have referred mean that Monash was prohibited by the 1984 Act from discriminating against Dr Kapoor on the grounds of her Indian race or by reason of her religious beliefs as a Hindu in any of those circumstances.
The 1995 Act uses different terminology to deal with this matter. By ss. 13 and 14, an employer must not discriminate against a person in a number of specified ways. In s. 7(1) “discrimination” is defined to mean “direct or indirect discrimination on the basis of an attribute”. Section 6 sets out a number of attributes on the basis of which discrimination is prohibited. They include, in paragraph (i), race and, in paragraph (j), religious belief or activity. The findings to which I have referred mean that, in this case, the 1995 Act prohibits direct or indirect discrimination against Dr Kapoor on the basis of her Indian race or on the basis of her Hindu religious belief or activity.
The Tribunal’s Findings
As I have mentioned, the Tribunal in its Reasons dealt with Dr Kapoor's complaints under six headings as detailed in her particulars of complaint. The last of these concerned Professor Campbell and may therefore be put to one side. In this summary and, generally, page references are references to the Reasons of the Tribunal in this matter.
Children at the University
"(a) that at the commencement of 1993, she was informed by the second respondent there was a University rule which prohibited children of staff from entering the workplace, and that the complainant was to advise the second respondent in advance if she intended to bring her daughter on to University premises."
The Tribunal found discrimination on the basis of an attribute of parental status or status as a carer but that there was no evidence of detriment flowing to Dr Kapoor as a result. Accordingly, it found no unlawful behaviour arising out of the subject matter of this complaint.
Critical Comments
"(b)that from in or about July/August 1995, the second respondent made critical comments about the complainant’s wearing of national dress, her vegetarianism, her abstention from drinking alcohol, and her ‘interpersonal skills’."
It is difficult to find in the Reasons any detail of these allegations or any positive finding as to them. At p. 38 the allegation of critical comments about Dr Kapoor’s practice of wearing national dress appears to focus on the year 1995 and earlier. There is mention, too, of allegations, which I take to be allegations of critical comments presently under consideration, in relation to the Flinders Island trip in that Dr Kapoor did not socialise or have drinks with her colleagues or students out of hours and that she was not participating in extra-curricular activities. The Flinders Island trip took place in July 1995. It is said in this context, too, that evidence was given of events at a barbecue in 1993. This evidence was disputed by Dr Kapoor. The finding of the Tribunal as to this matter is put this way:
"The Tribunal does not believe that any of these comments were made when [Dr Kapoor] and [Ms Curzon-Siggers] entertained a friendly relationship. In the absence of better evidence than is before us, we are unable to find on the balance of probabilities that such matters took place." (Page 38-9.)
The time at which the two women were friendly is identified at p.28 as being from the beginning of Dr Kapoor’s time with MOSA, that is from January 1993, for some time thereafter, but certainly not beyond July 1995, the time of the Flinders Island trip.
The analysis by the Tribunal of this complaint, then, turns to other matters, certain criticisms levelled at Dr Kapoor of her own racial attitude towards lower caste or non-caste Indian and other fellow employees in the MOSA unit. These criticisms, which Dr Kapoor denied, were rejected by the Tribunal. This has nothing to do with the question whether critical comments of a discriminatory nature were made to Dr Kapoor during the period of her employment with Monash. As to this, the question whether Dr Kapoor was the object of racial comments, there is no positive finding by the Tribunal as to what, if anything, was said about Dr Kapoor during the period of her employment, when it was said, by whom it was said or why it was said. In the circumstances I must conclude that the Tribunal found that the allegation of critical comments was not made out.
The Flinders Island Trip
"(d) that, in addition to the matters raised in [(b)], the fact that the complainant did not, on a trip to Flinders Island, socialise with the students on that trip in the evenings."
The findings of the Tribunal make it clear that this was a critical event in the deteriorating relationship between Dr Kapoor and Ms Curzon-Siggers. Its findings were that in the preceding years Dr Kapoor performed her teaching duties competently and satisfactorily. It accepted Dr Kapoor’s evidence as to this; it found that there were no complaints from students about this matter or about her attitude to the students.
In July 1995 Dr Kapoor went with the MOSA students on a four day field trip to Flinders Island. Ms Curzon-Siggers did not herself participate in this trip. She formed the belief, however, from information allegedly provided by certain students, that Dr Kapoor did not interact with the students on this trip. This information also contributed to her belief that Dr Kapoor had failed to “develop an understanding of the needs of Aboriginal students”. The Tribunal noted that Ms Curzon–Siggers’ evidence was that this was the incident which made her decide not to renew Dr Kapoor’s contract in December 1995.
The finding of the Tribunal was again in favour of Dr Kapoor as to the events of this field trip. It found that Ms Curzon–Siggers’ belief as to Dr Kapoor’s relationship with the students was unfounded. At p.40 it made the positive finding that “Dr Kapoor related to her students in a way which they appreciated and that she had an understanding of cross-cultural issues”. As to Ms Curzon–Siggers’ belief, the Tribunal found that she "formed the view she did substantially because of Dr Kapoor status as a parent and because of her reserved social behaviour” (p. 29). It will be recalled that the Tribunal had previously made a finding of discrimination on the ground of Dr Kapoor’s status as a parent with respect to what I have called the children at the university matter, but had found no detriment.
I turn now to the question of Dr Kapoor’s reserved social behaviour. The Tribunal found as a fact that certain characteristics were attached to Dr Kapoor’s caste as a Brahmin. These characteristics include those of a reserved social behaviour, as well as certain eating habits, the non-consumption of certain foods and alcohol, and her mode of dress. It concluded that these social and personality characteristics attached to her religion and ultimately to her race. Her reserved social behaviour is described in question (b) certified by the Master and in the grounds of appeal as “haughtiness”, an expression which attracted a good deal of attention in the argument before me. The origin of the expression in this case was the evidence of the witness Kerrie Keleher which is summarised on p. 35 of the Reasons as being that Dr Kapoor sometimes might seem to be haughty, but that in her opinion she was not. For this reason the expression ought properly to have been “apparent haughtiness” because the witness herself did not consider Dr Kapoor haughty and the Tribunal’s findings generally show that it rejected Ms Curzon–Siggers’ suggestion that she was haughty. In the circumstances, I shall refer to this aspect of Dr Kapoor’s make-up by using the expression “reserved behaviour” rather than the pejorative “haughtiness” or the awkward “apparent haughtiness”.
I return then to the Flinders Island trip complaint. The Tribunal found that Ms Curzon–Siggers’ critical assessment of Dr Kapoor’s conduct on this trip was unfounded. The readiness of Ms Curzon–Siggers, to embrace it, nevertheless, was due to her perception of Dr Kapoor’ reserved personality and social habits which were themselves a product of her religion and of her race.
Non-Renewal of Employment
"(c) that the non-renewal of the complainant’s contract of employment (due to expire on 31 December 1995) was said by the second respondent to be solely for the reason that the complainant’s cultural background adversely affected her interaction with students."
The decision not to renew Dr Kapoor’s 12 month contract of employment was made by Ms Curzon–Siggers and was announced on 16 November 1995. Dr Kapoor on 21 November 1995 complained about this to the Deputy Vice-Chancellor, Professor Chipman. At Professor Chipman’s instigation she was offered on 19 December 1995 a six month contract and advised that a restructured three year position would be advertised in the course of that six month period.
Ms Curzon–Siggers said that the reason for her decision not to renew Dr Kapoor’s contract was her perception of Dr Kapoor’s conduct on the Flinders Island trip and, ultimately, that in her opinion Dr Kapoor had not developed an understanding of the needs of Aboriginal students and did not interact with them.
The Tribunal found that both of these perceptions were erroneous. Dr Kapoor’s qualifications and teaching experience were not disputed nor, it seems, did they form any basis for Ms Curzon–Siggers’ decision of 1995. Furthermore, insofar as her perceptions of 1995 related to Dr Kapoor’s capabilities as a teacher in the MOSA program, the Tribunal found that Ms Curzon–Siggers had herself no direct experience of Dr Kapoor’s performance.
Furthermore, insofar as the reason for the non-renewal of the contract was Ms Curzon–Siggers’ opinion that Dr Kapoor was not sufficiently available to offer to the Aboriginal students what was called “pastoral care”, the Tribunal again found that she had no basis to found this opinion and, further, that “it is probable that this matter came into play as a justification for her later actions in relation to Dr Kapoor’s contract” (p.36). I read this as a finding that, notwithstanding her evidence, Ms Curzon–Siggers held no such opinion.
The Events of 1996
"(e) that as a series of events in 1996, the complainant:
(i)was put through an ordeal in the form of a meeting in which she was confronted with allegations of which she had no notice and that minutes of that meeting misrepresented the content of the meeting
(ii)received a letter from the second respondent dated 15 May 1996 in which the second respondent alleged that the complainant was not performing her duties properly
(iii)that without reasonable or proper basis or for any reasonable pedagogic purpose, the second respondent sought to have the complainant’s teaching position restructured and that an inevitable effect of that would be to remove the complainant from her position
(iv)that the first respondent withdrew funding for the position when the restructuring attempt was unsuccessful."
The Tribunal's findings on these four matters are lengthy. It found in substance that Dr Kapoor attended two hostile meetings on 12 February and 1 March 1996. The text of the 15 May 1996 letter referred to in paragraph (ii) above was not the subject of attention in the Reasons.
With respect to the matter referred to in paragraph (iii) above, the Tribunal’s findings were again in favour of Dr Kapoor. The English curriculum was the subject of negotiation in February and March 1996 and a revised draft curriculum was presented by Dr Kapoor and approved on 28 March 1996. The Tribunal rejected the evidence of Ms Curzon–Siggers that Dr Kapoor was obstructive towards the new curriculum or that the new curriculum represented a significant departure from that previously in place.
The three year contract for the restructured position as MOSA English teacher of the revised curriculum was advertised on 11 May 1996. Applicants were told that they had to have certain secondary school teaching experience, qualifications not possessed by Dr Kapoor. There is no finding by the Tribunal that Ms Curzon‑Siggers was responsible for these requirements although this may be implicit from the fact that she was the director of MOSA at the time. Twelve days after the position was advertised Ms Curzon–Siggers took sick leave. Professor Campbell who took over as Acting Director said that she did not know how the secondary school teaching requirements came to be inserted in the job description and that they were not retained by her as a pre-condition for eligibility for the new position “as a result of a perceived difficulty that they might be seen to be discriminatory” (p.40). It appears that the Tribunal accepted this evidence. The insertion of these requirements might in the appropriate case provide a basis for a complaint of indirect discrimination but the Tribunal made no such finding.
As it turned out, the new English teaching position was not pursued because Professor Campbell was unable to certify that funding for it was available. The final aspect of the 1996 complaints referred to in paragraph (iv) above was that the position was withdrawn for discriminatory reasons. The Tribunal found that a want of funding was the true reason for this.
The Tribunal found that in December 1995 Ms Curzon–Siggers and Professor Campbell had decided not to renew Dr Kapoor’s contract for the following year. It found that the curriculum restructure was a natural consequence of this decision, presumably in the light of the intervention of Professor Chipman on 19 December 1995. It is implicit in this finding, and follows from the Tribunal’s finding as to the events of 1996 generally, that it was satisfied that Ms Curzon–Siggers had decided that Dr Kapoor should not be given the new teaching position. As things turned out, however, it found that Dr Campbell’s refusal to certify funding for the new position was based on a non-discriminatory ground, namely, that no funding was available.
Conclusions
The Tribunal concluded from its examination of the issues raised in the complaint that Monash and Ms Curzon–Siggers treated Dr Kapoor less favourably than they would have treated a teacher in the MOSA science program who did not have the same status or attribute of race or religious belief and, that they did so in the events of 1995 leading up to the decision of Ms Curzon–Siggers not to renew Dr Kapoor’s contract after December 1995. This represents conduct proscribed by ss. 21(1)(c) and 21(2)(b) of the 1984 Act and by ss.13(c) and 14(d) of the 1995 Act.
Discrimination Under The Statutes
Before I turn to the grounds of appeal, I will venture some general observations about the two Victorian statutes. I should at this outset underline that I am here concerned with conduct which is said to be discriminatory in an employment relationship and based on race or religion. Both the 1984 Act and the 1995 Act set out to deal with discriminatory conduct in a variety of circumstances and, in each, the conduct may be based on any of a large number of what are called attributes in the 1995 Act. It is possible that the application to the facts of a given case of the general concepts which make up discrimination in Part III Division 1 and Part 2 of the two statutes, respectively, will differ in these differing circumstances and by reference to these differing attributes. I therefore limit my general comments to the facts of a case such as the present.
Next, the law operates in cases such as this, in an area where strong and differing views may be held as to appropriate policy considerations, and as to the resolution of conflicts between competing policies. It must be borne in mind that, for good or ill, it is Parliament which has drawn the line which marks the point at which the freedom of an employer to deal with employees becomes prohibited discrimination. In an area where the winds blow strongly, the surest rock to which the court must cling is the expressed will of Parliament – the text of the statute itself.
The 1984 Act
The 1984 Act commenced in February 1986 replacing the Equal Opportunity Act 1977. In CPS Management Pty Ltd v Equal Opportunity Board [1991] 2 VR 107 at 111, Marks J said that it has "the purpose of regulating relationships so as to exclude the exercise of power on the basis of prejudice. Typically, a person is not to be disadvantaged on an irrelevant or non-rational basis.” This may be a little broad as a general statement of the objectives of the statute because subsequent cases have highlighted the fact that it affects only certain specified relationships and, then, only insofar as the power has been exercised on the ground of a specified attribute. What is irrelevant or non-rational is to be found in the statute. It does not seek to proscribe discrimination generally: University of Ballarat v Bridges [1995] 2 VR 418, or even discrimination generally on the ground of, for example, race: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 168, per Brennan J. It says nothing as to the right of an employer to engage or to dismiss whomsoever they please; nothing as to the right of an employer to do so in a selective way; nothing as to the right of an employer to do so in a way or on a basis which is industrially unwise, contrary to sound management principles, capricious, or even unjust. Its interest is enlivened only when an employer's conduct is based on one or other of the matters which are described in the 1984 Act as a status of the other person or by reason of the other person’s private life, and it is for the complainant to show that this is the case.
A feature of the Act is that it contains in ss. 21-33 a number of detailed circumstances in which discrimination is proscribed. In these sections are to be found numerous exceptions to the proscriptions but these are not relevant for my purposes. In ss. 17 and 18 the statute defines what amounts to discrimination for the purposes of a provision of the Act. Section 17 of the 1984 Act provides:
“17.(1) A person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life.
(2)For the purposes of sub-section (1) a comparison of the cases of persons of another status or with a different private life shall be a comparison where the relevant circumstances in the one case are the same, or are not materially different, in the other.
…
(4)For the purposes of sub-section (1), a person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act if –
(a)by reason of a characteristic that appertains generally to persons of the status or with the private life of the other person; or
(b)by reason of a characteristic that is generally imputed to persons of the status or with the private life of the other person -
the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life."
It will be seen that discrimination is defined in sub-s. (1) essentially as treating, in relevant circumstances, a person, whom I shall refer to as the subject, less favourably than a comparable person who lacks the status or private life in question, a comparator, to adopt the terminology used in this area of law. Moreover, this less favourable treatment must be based on the status or private life of the subject.
Having in this way defined discrimination, the statute then expands this definition to deal with two particular manifestations of discrimination. The first, which is dealt with in s.17(5) is what is commonly called "indirect discrimination" or "adverse effect discrimination". I mention in passing that it is regrettable that, in s. 35 of the 1984 Act, the former expression is used in an entirely different sense, but I am not here concerned with this type of discrimination. The second, characteristic based discrimination, which is the type of discrimination alleged in this case, is dealt with in s.17(4).
A provision such as s. 17(4) first appeared in this context in the Victorian statute book in 1983, inserted as s. 27A of the Equal Opportunity Act 1977 by Act No 9843 of 1982, as part of the definition of discrimination on the ground of impairment. I will set out this section, in so far as it concerns direct discrimination, for it resembles in structure other legislation of this time, such as s. 39 of the Anti-Discrimination Act 1977 (NSW) to which I shall in due course refer.
"27A (1) A person discriminates against another person on the ground of that other person's impairment, whether the impairment presently exists or existed in the past but has now ceased to exist in any circumstances relevant for the purpose of a provision of this Act if on the ground of-
(a)the other person's impairment, whether the impairment presently exists or existed in the past but has now ceased to exist; or
(b)a characteristic that appertains generally to persons having or who have had that impairment; or
(c)as characteristic that is generally imputed to persons having or who have had that impairment-
the first-mentioned person treats the other person less favourably than in the same or similar circumstances he treats or would treat a person without that impairment."
Indirect discrimination was dealt with in s.27A(2).
I return to the 1984 Act. There was some debate before me as to whether s. 17(4) stands alone as a definition of characteristic-based discrimination or whether it should be construed as explanatory of the general definition of direct discrimination in sub-s.(1), that is as clarifying its operation in a particular situation in which discrimination might appear. The latter view has been endorsed by the opinion of two, and perhaps three, members of the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 at 358, per Mason CJ and Gaudron J, with Deane J at 382 generally concurring. This opinion, however, was expressed in the course of a discussion of the relationship between sub-s.(1) and sub-s. (5) of s. 17, on which point it is by no means clear that they represent a majority. If I may respectfully say so, I too am of opinion that sub-s. (4) must be read in aid of sub-s.(1). I am of this opinion for a number of reasons.
First, as a matter of construction, it resolves the difficulty of applying to this type of discrimination the exercise of comparison provided for in sub-s. (2). This sub-section is prefaced by the words "For the purposes of sub-section (1)", and not "For the purposes of this section" as is the case in sub-s. (3). Taken literally, therefore, sub-s. (2) would have no application to the comparison which must be undertaken under sub-s. (4). But, if sub-s. (4) is to be read as explanatory of sub-s. (1), there is no difficulty in using sub-s. (2) for the purpose of applying sub-s. (4) to the facts of a case of characteristic-based discrimination.
Second, it resolves an apparent disconformity between s. 17(4), on the one hand, and s. 17(1) and the operative sections of the 1984 Act, such as s. 21(1), on the other. Section 17(4) requires the subject to establish that the basis for the less favourable treatment is not the status or private life, but a characteristic of the kind mentioned in paragraph (a) or (b). Having proved this, s. 17(1) and s. 21(1) then requires them to prove that the basis for this treatment is in truth their status or private life. Given the introductory words of s. 17(4) and its role in Part III of the Act, it is unlikely that the statute would impose on a subject these burdens cumulatively in order to establish an entitlement to relief. The interpretation which I prefer is that, where discrimination of this kind is alleged, the subject must establish, not the fact that the basis of the decision in question is their characteristic, but that its basis is their racially associated characteristic. Accordingly, when an employee is dismissed for want of punctuality, this cannot provide the basis for a complaint under the 1984 Act merely by proof of the fact that members of the complainant's race are notoriously unpunctual. The complainant must prove that the basis of the dismissal is a racially based perception of unpunctuality. A passage from the judgment of Priestley JA in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21 dealing with s.39 of the Anti-Discrimination Act 1977 (NSW), makes this clear.
"But at least two things emerge from s. 39(1). First, the two paragraphs do not, in my opinion, require that the employer ignore characteristics which a complainant in fact has merely because they are characteristics that in fact appertain generally to, or are generally imputed to, persons of the relevant marital status. The words of the paragraphs are capable of meaning that, if the complainant has in fact the relevant characteristic, the employer cannot take it into account if that characteristic is one which in fact appertains generally to (or is generally imputed to) persons of the relevant marital status. But I do not think the paragraphs should be so construed."
Thus, to adapt his Honour's words to the example I have given, if it were assumed that a want of punctuality was a reputed characteristic of the race of the subject and, further, that the subject was in fact habitually late for appointments or for work, an employer would not be prevented by the statute from taking that into account in their treatment of this employee.
Third, the analysis of the relationship between sub-s. (1) and sub-s. (4) which I prefer highlights the fundamental role of the whole of s. 17 which is to lock the statutory concept of discrimination into the specified grounds which are defined as status and private life in s. 4. And so, when sub-s. (4) speaks of less favourable treatment of the subject "by reason of a characteristic" this must be understood as a characteristic which is appurtenant to or imputed to the status or private life in question. Put another way, this treatment becomes discrimination under sub-s. (4), not because it is based on the characteristic, but because it is based on a characteristic which is a racial characteristic.
Fourth, it is not common for there to be direct evidence that alleged discriminatory conduct was based on race or religion, as such. Very often, discrimination, where it exists, is concealed or is not acknowledged by the discriminator. It may be said in support of the conduct that the less favourable treatment of the subject was justified by reference to some characteristic, real or imputed, of the subject. The response of the legislation has been to treat this basis for the conduct as the equivalent of race or religion, which underlies the real or imputed characteristic. See Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 207, per Wilcox J; Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21, per Priestley JA. In this way, what is commonly called stereotyping discrimination is dealt with by sub-s.4 operating in aid of s.17(1).
The fifth reason is associated with the operation of the comparison which must be undertaken in order to determine whether the treatment in question is less favourable to the subject in a characteristics based allegation of discrimination under s. 17(4) to which I shall return at [73] below.
Finally, the construction of s.17 which I prefer accords with that given to the comparable NSW legislation to which I have referred. In Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18, Mahoney JA, speaking of discrimination on the grounds of marital status put it this way:
"Prima facie, s. 39(1) operates as an extension of the grounds on which discrimination is proscribed. As I have said, if s. 40(1) stood alone, there would be an effective proscription of discrimination on the ground of marital status. In the case of each complaint, it would be necessary to determine whether there had been discrimination and whether the discrimination was on that ground. But s. 39(1) in effect expands the meaning of 'marital status' in s. 40(1): it extends it so as to include not merely marital status, as defined by s.4(1), but also the two characteristics specified in ss. 39(1)(b) and 39(1)(c). The legislature was, perhaps, moved to provide for this kind of extension in order to prevent discrimination 'based on stereotyped characterizations of' persons of particular sex or marital status: cf Phillips v Martin Marietta Corp 400 US 542 (1971) at 545 per Marshall J. But the legislature did not merely add such characteristics to the meaning of marital status: it also provided a formula for determining whether there has been discrimination."
I should mention before leaving this topic the differing opinions on an associated point expressed in Waters v Public Transport Corporation (1991) 173 CLR 349. In that case, Dawson and Toohey JJ at 393 and McHugh J at 400 were of opinion that s.17(5), dealing with indirect discrimination, was to be construed as independent of s.17(1), dealing with direct discrimination. It may be, too, that Brennan J at 372-3 held the same view. The contrary position was adopted by Mason CJ and Gaudron J at 358-9 and at 382, Deane J generally agreed with them. This divergence was noted by the Court of Appeal in Sinnappan v State of Victoria [1995] 1 VR 421 at 426, but it is not strictly relevant to a case of direct discrimination such as the present. I, therefore, see myself as at liberty to express the view, which I have as to the relationship between sub-s. (1) and sub-s. (4) of s.17.
The 1995 Act
The 1995 Act which replaced the 1984 Act on 1 January 1996 was enacted following the Report No. 30 of the Law Reform Commission of Victoria and appears to have drawn largely on the recommendations contained in that report. Its terminology differs from that of the 1984 Act, at least in the sections which are of interest in this case, and these changes have moved the legislation away from comparable legislation in other parts of the Commonwealth. Its professed objectives, as they appear in s. 3, include that “to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes.” Like the 1984 Act, the 1995 Act proscribes specific kinds of discriminatory conduct performed by persons in specified relationships and in specified circumstances.
The structure of the 1995 Act, like its predecessor, is to set out in Part 3 a variety of circumstances, with exceptions, where discrimination is prohibited. The conduct which constitutes discrimination for these purposes is described in Part 2 and, in particular, in sections 7, 8 and 9. The latter section is concerned with indirect discrimination and may for that reason be put to one side. The other provisions are as follows:
"7. Meaning of discrimination
(1)Discrimination means direct or indirect discrimination on the basis of an attribute.
(2)Discrimination on the basis of an attribute includes discrimination on the basis -
(a)that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;
(b)of a characteristic that a person with that attribute generally has;
(c)of a characteristic that is generally imputed to a person with that attribute;
(d)that a person is presumed to have that attribute or to have had it at any time.
8. Direct discrimination
(1)Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2)In determining whether a person directly discriminates it is irrelevant -
(a)whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b)whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason."
It will be noted that direct discrimination is defined in s. 8(1) in terms very different from those in s. 17(1) of the 1984 Act. There is no mention in it of the circumstances in which discrimination occurs or of the grounds on which the conduct in question must be based. Moreover the basis of the comparison is worded differently. Section 7(2) specifies that "discrimination on the basis of an attribute" includes discrimination on four bases; it is an inclusive definition. Broadly speaking, the first three bases are the equivalents of the types of discrimination referred to in sub-ss. (1), (4)(a) and (b) of s. 17 in the 1984 Act. As with their predecessors, paragraphs (b) and (c) of s. 7(2) draw a distinction between a characteristic and an attribute. And, like the 1984 Act, the legislature, having made this distinction shows a little uncertainty as to the application of these concepts. Discrimination on the basis of an attribute includes discrimination on the basis of a characteristic which is associated with that attribute in one of the ways mentioned in paragraphs (b) and (c). Insofar as there is a mental element required for this, the substantial reason for the less favourable treatment is not to be the existence of the characteristic, but the existence of the attribute: s. 8(2)(b).
The drafting of the 1995 Act has been undertaken with the evident objective of simplifying that of its predecessor which had been the subject of some judicial criticism from time to time. It is likely, too, that the task of simplification was undertaken in order that it be more readily understood, not only by tribunals whose task it is to construe it, but also by ordinary members of the public who are required by parliament to conduct themselves in accordance with its precepts. This last matter has not been overlooked by judges construing legislation of this kind:
"Anti-discrimination legislation must be understood, not only by statutory bodies that enforce it, but by all sections of the community because the implications and effects of the legislation could touch us all. It is important that the legislation is not approached and construed with fine and nice distinctions which will not be comprehended by any except experts in the field; nor is there any need for them."
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 326, per Lockhart J.
Grounds of Appeal
I turn now to the eight grounds of appeal relied on by the appellants. I shall deal with them in an order which differs from that in the amended notice of appeal.
Ground (a)
"(a)the Tribunal erred in construing the words ‘characteristic that appertains’ and ‘characteristic that a person with that attribute generally has’ as capable of including personality traits (haughtiness)."
Dr Kapoor’s complaint is one of direct discrimination, that she suffered discrimination in her employment by reason of conduct based on some impermissible or irrelevant consideration. It is not a case of indirect or adverse affect discrimination. Each of the statutes prohibits discriminatory acts which are based on an attribute of the subject, as such, in this case her race or religion. I do not read the Tribunal’s Reasons as containing a finding of conduct which amounts to discrimination of this kind.
Her complaint is based on the expanded use of the concept of discrimination which is based on characteristics referred to in s. 17(4) of the 1984 Act and s. 7(2)(b) or (c) of the 1995 Act. She identifies as the characteristics of a person of her race and religion those of a social and cultural kind, her dietary and dress habits and, importantly, her reserved social behaviour. In order to establish her complaint under the 1984 Act it was for her to satisfy the Tribunal that a reserved social manner appertains generally to Indian Hindus of Brahmin caste or that this social behaviour is generally imputed to such persons. The finding of the Tribunal was that she had satisfied it of the former alternative. In Ground (a) the appellants challenge this on the basis that a characteristic within the meaning of s. 17 cannot comprehend a personality trait. It was put that, unlike physical characteristics such as skin colour or objectively identifiable practices or conduct, such as dietary habits or mode of dress, personality traits differ from person to person and, within the same person from time to time.
The statutes offer no guidance on this point. In Waterhouse v Bell (1991) 25 NSWLR 99 at 114, the Court of Appeal was content to accept as falling within "characteristic" for the purposes of the Anti-Discrimination Act 1977 (NSW) that found by the Tribunal as generally imputed to married women, namely, that they are liable to be corrupted by corrupt husbands. In Metwally v University of Wollongong (1984) EOC 92-030 at 75,560 the Equal Opportunity Tribunal, New South Wales rejected the very submission put to me on behalf of the appellants, that a characteristic for the purposes of the Anti-Discrimination Act 1977 (NSW) was limited to a physical characteristic. In that case the Tribunal held that the complainant’s practice of abstaining from alcohol was capable of being a characteristic of a person of Egyptian nationality for the purposes of the legislation. In Fares v Box Hill College of TAFE (1992) EOC 92-391 the complainant before the Equal Opportunity Board, Victoria was a woman born in Hungary and of non-English speaking background. She alleged discrimination on the grounds of sex and ethnicity. She asserted imputed characteristics of her sex and ethnicity which were stated in general terms by the Tribunal at EOC 78,782 as “… women [of a non-English speaking background] are generally more emotional, highly strung, demanding and overly conscientious in their work, long winded and unable to be concise, holding undue regard for academic qualifications as opposed to practical experience and thus ambitious for themselves”. The Board upheld the complaint of discrimination on the basis of these imputed characteristics. The interest of these cases, for my purposes, lies not in the correctness of these imputations, for these are matters of fact, but rather because they demonstrate an acceptance of non-physical traits as characteristics within the meaning of the 1984 Act and comparable legislation interstate.
I turn then to the policy underlying the legislation to see if the submission put on behalf of the appellants can derive any support from this. It would seem that s. 17(4) and s. 7(2)(b) and (c) of the respective statutes are directed at two practical problems which have been found to beset this area of social regulation. The first is the evidentiary problem facing a tribunal of fact of identifying the true basis of the conduct where this is expressed by the alleged discriminator to be based, not on the race or religion of the subject, but on characteristics of the person of her race or religion. See [44] above. In addition to its ordinary entitlement to infer that the true basis of the conduct in question is the race or religion of the subject, where the evidence warrants such an inference, the Tribunal may find discrimination based on characteristics which are related to her race or religion in the way the statutes proscribe. The second problem is that the conduct in question may be based on the mental process called stereotyping characterisation. In Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21, Priestley JA explained this mental process as it applied to s. 39(1)(b)(c) of the Anti-Discrimination Act 1977 (NSW).
"The provisions of pars (b) and (c) are expressed with an engaging and commendable simplicity. But in the application of them to the present case there are difficulties. In general, the paragraphs are, I think, directed to ensuring that in the decisions to which the statute refers, each person is to be treated as an individual. The paragraphs are directed against the form of reasoning which runs: married persons generally have in fact characteristic X (or characteristic X is generally imputed to them); characteristic X is one which I do not desire to have in my employee; therefore I will not employ this person. The general thrust of these two paragraphs is that if an employer desires to discriminate against a person by reference to that characteristic, it must be because she has that characteristic or, perhaps, because the employer believes she has it in fact."
Indeed, in a case of stereotyping, there is much to be said for the conclusion that this mental process will often play a more significant role where the characteristic is non-physical. In the case of a physical trait, the employer can see if it is present or not without resorting to the mental process to which I have referred. I cannot easily suppose that the legislature would have intended that an employer should not be permitted to refuse employment on the basis that persons of the race of the job applicant are reputed to be tall or to wear particular clothing or to have some other inappropriate physical characteristic, but that there be no prohibition against such a refusal on the ground that persons of that race are reputedly lazy, unpunctual or dishonest.
It was put, too, that personality traits vary from person to person so that they are inconsistent with the requirement of generality which was present in s. 17(4)(a) and (b) and s. 7(2)(b) and (c). I think not. The requirement of generality is not that the characteristic be present in every person of the race or religion in question, or even that such an imputation be made. See Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 193-4, per Black CJ and at 208, per Wilcox J. Likewise, the requirement of generality does not mean that the characteristic must be present in the person at every moment of their life. In Bear v Norwood Private Nursing Home (1984) EOC 92-019 at 75,475-6, the Sex Discrimination Board of South Australia held that the state of being pregnant is a characteristic which appertains generally to the female sex notwithstanding that an individual woman may be pregnant infrequently or not at all, or that she is incapable for some reason of ever becoming pregnant. Likewise, where the evidence supports the conclusion, I can see no reason based on principle which would render a personality trait inappropriate as a characteristic appertaining generally to persons of a given race or religion or as a characteristic which is generally imputed to such persons.
I conclude, therefore, that as a matter of law, the personality trait of reserved behaviour is capable of constituting a characteristic within the meaning of s. 17(4) of the 1984 Act and s. 7(2) of the 1995 Act. Ground (a) therefore fails.
Ground (f)
"(f)The Tribunal erred in finding that haughtiness was a characteristic of the Brahmin race without any evidence or other material upon which to base that finding."
There was evidence from Dr Kapoor before the Tribunal to the effect that reserved social behaviour is one of the characteristics generally appertaining to or possessed by an Indian who is a Hindu of Brahmin caste. There is no substance in this allegation.
Ground (b)
"(b)alternatively, the Tribunal erred in deciding that less favourable treatment on the ground of a personality trait (haughtiness) could amount to discrimination on the ground of race."
Given the conclusions which I have reached under Grounds (a) and (f), this ground is very difficult to sustain. Let it be assumed that Dr Kapoor has, in the circumstances of her employment, received less favourable treatment than an appropriate comparator and that this was on the ground of a personality trait which attaches to her race or religion. This is sufficient to establish discrimination, within the meaning of s. 17 of the 1984 Act and s. 7 of the 1995 Act. This, in turn, is sufficient to establish discrimination which is prohibited by s. 21 of the 1984 Act and ss.13 and 14 of the 1995 Act.
Ground (g)
"(g) Having found that the second appellant had treated the respondent as she did because she held the view that the respondent lacked empathy with and understanding of the special needs of Aboriginal students, the Tribunal erred in holding that the appellants had discriminated against the respondent in contravention of s. 21 of the Equal Opportunity Act 1984 and ss. 13 or 14 of the Equal Opportunity Act 1995."
This ground accepts that Ms Curzon-Siggers and Monash treated Dr Kapoor less favourably than they treated or would have treated a comparator but says that there was a reason for this, namely, the view of Ms Curzon–Siggers that Dr Kapoor lacked empathy with and an understanding of the special needs of Aboriginal students. The argument must accept, too, the finding of the Tribunal that it is not correct to say that Dr Kapoor lacked this empathy or understanding. I proceed on the basis that the view of Ms Curzon-Siggers was, therefore, ill-founded. The argument in support of this ground fastens upon the requirement of s. 21 of the 1984 Act that it is unlawful for an employer or prospective employer in a case such as this to discriminate against a person on the ground of her race or by reason of religious belief. It is put, then, that Dr Kapoor must demonstrate that the discriminatory conduct was “based on” her race or religious belief, to adopt the terminology of Tadgell J in the University of Ballarat v Bridges [1995] 2 VR 418 at 426-7. See also at 438, per Ormiston J. Where the less favourable treatment is based upon some other matter, the reserved behaviour of the complainant, it is not for this reason based on her race or her religion.
In Bridges’ case the applicant for a position with the Ballarat University was subjected to a series of questions by the interview panel about her young children and what impact her responsibilities to them would have upon her employment if she were successful. The effect of these questions was to unsettle and confuse her so that she performed badly in the interview. Her failure to obtain the position, however, was found to be based, not on the answers she gave about her parenting or on her parental status, but on her perceived poor performance in the interview. This last finding was, to the mind of the Full Court, fatal to her complaint of impermissible discrimination. The judges held that it is not sufficient that there was impermissible discriminatory conduct relating to her parental status in the steps leading to the decision not to employ her. A breach of s. 21(1) of the 1984 Act will be made out only where she proves that the true basis for that decision was her parental status. This is not such a case and I need say nothing further about this decision.
The second case much relied upon by counsel for the appellants was Department of Health v Arumugam [1988] VR 319, another case where the complainant alleged direct discrimination in a refusal to employ him on the grounds of his race. The findings of the Equal Opportunity Board were that, of the five applicants, Dr Arumugam was the best qualified for the position in question but that he was perceived by the selection panel to be “less articulate and less aggressive” than the successful applicant. The panel was of opinion that the position demanded a person who was dynamic and articulate. Accordingly, his application was unsuccessful. The determination of the Board was that this decision was discriminatory in breach of s. 21 of the 1984 Act on the ground of race. This decision was set aside by Fullagar J because there was no actual finding of race-based discrimination. The Board fell into error inasmuch as it inferred illicit discrimination from the facts that the best applicant was passed over, that two members of the five member panel had determined that Dr Arumugam should not get the position, that their perception of his not being articulate and aggressive was in fact erroneous and that these two members did not bona fide hold that perception. What the Board did, faced with these findings, was to set up a kind of res ipsa loquitur which shifted the onus to the employer to establish that the decision not to employ Dr Arumugam was not based on impermissible discrimination.
It is apparent from this analysis and from his Honour’s extensive examination of the facts of that case, that this case sheds little light on the question raised in Ground (g). It is concerned not at all with racial discrimination based on characteristics. It is, however, authority for the proposition that the burden of establishing each of the ingredients of impermissible discrimination lies on the complainant and that she may discharge this burden with respect to an ingredient by circumstantial evidence, that is, by inference from proved facts. Where an ingredient is proved in this way the complainant must, in accordance with ordinary principles, show affirmatively that the inference contended for was more probable than any competing innocent inference.
In each of these two cases the complaint of discrimination arose out of an unsuccessful job application. The circumstances attending each of the decisions under consideration were brief and circumscribed. It is relatively easy for a tribunal or an appellate court to analyse such a decision in the circumstances in which it was made. It is much more difficult in a case such as the present where the parties have been in an employment relationship for some three years. In this case it would be unreal to look in isolation simply at one of the acts of Ms Curzon–Siggers relied upon by Dr Kapoor, and it is clear that the Tribunal was aware of this. Evidence was received of events ranging over many years of Dr Kapoor's employment in the MOSA program. The Reasons show that, as a specialist tribunal, its members were sensitive of the whole relationship between Dr Kapoor and Ms Curzon–Siggers. They sensed that, in the latter years, this was a deteriorating relationship and the critical decision not to renew the contract of employment in December 1995 was examined against this background.
The facts of cases such as Fares v Box Hill College of TAFE (1992) EOC 92-391 and Oyekanmi v National Forge Operations (1996) EOC 92-797, demonstrate that racial discrimination may be disclosed by an accumulation of individually insignificant acts. Where discrimination is perceived, the subject themself may become sensitive, even overly sensitive, attributing a racial motive for decisions which may be innocent in that respect; they may react by withdrawal or by aggression. And the alleged discriminator may not be unaffected by this reaction. This party, too, may come to see things, including the behaviour of the subject, through the prism of their own mental attitudes and, perhaps, prejudices. In this way, prejudice and discrimination may feed on themselves. Moreover, where this produces a general hostility between the two persons, it may be difficult for the tribunal of fact to determine whether the less favourable treatment accorded to the subject which may precipitate the complaint was based on a general antipathy, which is not proscribed by the statutes, rather than on the race or religion of the subject, which may be unlawful.
It is apparent from a reading of the Reasons that the Tribunal had considerable reservations about the evidence of Ms Curzon–Siggers and, in particular, that concerning her decision not to renew the contract in December 1995. Nevertheless, as Department of Health v Arumugam [1988] VR 319 demonstrates, the rejection by the Tribunal of the respondent’s reasons for the decision does not inevitably lead to the conclusion that the basis contended for by the complainant has been proved. It is necessary for Dr Kapoor to show affirmatively that the basis for the decision was a race-based characteristic. It is not therefore, sufficient that she shows that the decision was based on her reserved behaviour. It is not sufficient for her to show this and that reserved behaviour is a characteristic generally of persons of her race and religion. She must, in order to make out a claim under the 1984 Act, relate the two facts together. Ms Curzon-Siggers asserted a perception that Dr Kapoor's reserved behaviour was inconsistent with the skills required of a MOSA teacher. The Tribunal noted that this perception, and the decision not to renew the contract, was the result of the Flinders Island trip or, more correctly, what she had been told about Dr Kapoor’s conduct and attitude to her Aboriginal students on this occasion. Ms Curzon-Siggers was not present on this trip; she acted upon information received from those who were, and this information was false. Her perception, as the Tribunal found, was inaccurate. The Tribunal concluded that she formed this view "substantially because of Dr Kapoor’s… reserved social behaviour" (p.29). The use of these words suggest that the Tribunal had in mind s. 8(2)(b) of the 1995 Act.
But at this point, the Reasons stop. There is no finding by the Tribunal that Ms Curzon-Sigger’s perception was not in fact held; that it was merely a justification created for a decision which was in truth based on Dr Kapoor's being an Indian Hindu of Brahmin caste. Indeed, the fact which was found by the Tribunal that the two women enjoyed a good relationship in the early years of their time together at MOSA, suggests that such a finding was not open. There is no finding that the perception was the product of stereotyping of the kind which I have mentioned. Absent any such finding, or some other finding to the effect that the conduct in question was based on Dr Kapoor’s race or religion, the complaint must fail.
The same difficulty attends her complaint under the 1995 Act. Section 8(2) requires that Dr Kapoor establish that her race or religion was a substantial reason for the conduct of which she complains. The Tribunal made no finding that she had discharged this onus. Nor does it appear from the reasons that such a finding was implicit.
I conclude, therefore, that the Tribunal fell into error of law in finding that there was discrimination under s. 21 of the 1984 Act and ss. 13 or 14 of the 1995 Act. This ground has been made out.
Ground (h)
"The Tribunal erred in holding that the appellants had discriminated against the respondent in contravention of s. 21 of the Equal Opportunity Act 1984 and ss. 13 or 14 of the Equal Opportunity Act 1995, when the Tribunal had failed to find that the appellants treated the respondent less favourably than they would have treated a person of a different status, private life and attribute in the same or similar circumstances, namely, a person whom the second [appellant] viewed as haughty and lacking empathy with and understanding of the special needs of aboriginal students."
This ground raises the difficult question of the application of the comparison required under each of the statutes to a case of characteristic-based discrimination. Given my conclusion that the appeal must be allowed under Ground (g) it is not necessary that I deal with it. Nevertheless, in case the case may go further and in deference to the submissions advanced, I shall set out my views on this ground.
On behalf of the appellants it was submitted that I should observe the distinction drawn in each of the statutes between the characteristics attributed to the subject and the status or private life, or the attribute underlying them. For the purposes of the comparison required under each of the statutes, the comparator must, therefore, be a person who has the same characteristics as the subject, but not her race or religion.
It will be recalled that in certain aspects there appears to be some uncertainty in each of the statutes between characteristics, on the one hand, and status, private life or attributes, on the other in their application to the definition of discrimination. I have concluded that, for the purposes of s.17 (4) of the 1984 Act and s.7 (2) of the 1995 Act, less favourable treatment of a subject by reason of characteristics requires that the treatment be based on a characteristic which is associated with race or religion. See [42] above. The same association is found between these concepts when the comparison required by s.17(4) and s. 17(1) is undertaken in accordance with s. 17(2) of the 1984 Act and that required by s. 8(1) of the 1995 Act. This means that the suppositious comparator in each case must be placed in the same relevant circumstances as the subject’s, or those which are not materially different from hers, or in the same or similar circumstances as hers, as the case may be, but without the attribute related characteristic. If I, too, may adopt the observation of the President of the Human Rights and Equal Opportunity Commission in Sullivan v Department of Defence (1992) EOC 92-421 at 79,005, which has been cited with approval in the Full Federal Court:
"It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment… could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act."
See Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80 at 86, per Black CJ, at 104, per Lockhart J, Lee J concurring; Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 195, per Black CJ, at 205, per Lockhart J (compare Wilcox J at 211-2). To return to the example which I gave in [42] above, let it be supposed that there were a number of applicants for an employment position, including a person with superior qualifications but whose race was such that its members were thought generally to be unpunctual. This person failed to obtain the position for this reason. Upon a complaint by that person under one or other of the Victorian statutes, it cannot be that s. 17(2) or s. 8(1) would require the comparator to be a person without the subject's race but having the characteristic of unpunctuality, for this would defeat the purpose of the legislation.
The same result is achieved if the example is approached by identifying the reasoning prohibited by s.17 (4) and s.7 (2) as that described by Priestley JA in Boehringer Ingelheim Pty Ltd v Reddrop in the passage quoted in [42] above. The decision not to employ the job applicant was based, not on the fact that the applicant was known or believed to be unpunctual, but because they were assumed to be unpunctual because this is generally a characteristic of their race or imputed to be a characteristic of their race. When this decision is subjected to the analysis required by s.17 (4) or s.7 (2) of the two Victorian statutes, respectively, the comparator is not required to be unpunctual because this is not necessarily present in the subject. What is present is the assumption, which may or may not be correct, that a person of the job applicant's race is likely to be unpunctual. Once the racial component is removed, as the statutory comparisons require, so too goes the assumed characteristic of that race, leaving only an applicant whose application should have been assessed on its merits and not on prejudice or stereotyping assumptions.
I return to the case before me, for the purposes of identifying or supposing a comparator against whom to measure the decision of Ms Curzon-Siggers not to renew Dr Kapoor's contract in December 1995. This person should be assumed to have all the relevant personality and other characteristics which Dr Kapoor actually has; she should, however, be assumed not to be an Indian Hindu of Brahmin caste and, therefore, not for that reason to be invested with the characteristic of reserved behaviour which is assumed to be possessed by a person of that race and religion.
In this case, the Tribunal identified Dr Byrt as an appropriate comparator because she did not have the same attribute or status of race and religious beliefs, as did Dr Kapoor. Counsel for the appellants criticised this choice because it was not said that she, like Dr Kapoor, lacked empathy and understanding. I take this to be a criticism on the basis that she is not shown to have had the characteristic of reserved behaviour which Dr Kapoor had. To my mind there is no error of law demonstrated by this submission. The identification or supposition of a suitable comparator is a question of fact. I know nothing of Dr Byrt's demeanour. There is nothing in the Reasons which leads me to conclude that the Tribunal, having put to one side the question of race and religion, and the characteristics associated with these matters, failed to identify in Dr Byrt or, if they be absent, to invest in her for the purposes of the statutory comparison, all of the other circumstances which are relevant for that task.
Ground (h) is not made out.
Ground (c)
"the Tribunal failed to apply the test set out in Briginshaw v Briginshaw concerning the requisite degree of satisfaction necessary before it could make findings of fact which resulted in findings of unlawful discrimination."
The submission put on behalf of the appellants with respect to this third question of law before me proceeds from the uncontroversial position that the Tribunal in this case must make its findings on the civil standard and that, in doing so, it should have regard to the gravity of the allegations before it. The necessary satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, per Dixon J, a proposition applied to an equal opportunity case by Fullagar J in Department of Health v Arumugam [1988] VR 319 at 330-1.
That the Tribunal was aware of the Briginshaw case appears from its passing reference to it at p. 13 of the Reasons. Moreover, as a specialist tribunal it may be assumed also that it was aware of the implications of this High Court decision on its day-to-day work, dealing as it does with serious allegations with grave social, industrial and even commercial implications for witnesses and parties before them. I would not lightly infer that it ignored or departed from the principles expounded by Dixon J in the Briginshaw case unless this were demonstrated. There was nothing to this effect shown from the text of the Reasons or indeed at all. There is no substance in this ground.
Ground (d)
"the Tribunal breached the duty imposed on it by s. 139 of the Equal Opportunity Act 1995 or s. 117 of the Victorian Civil and Administrative Tribunal Act 1998 to give adequate and proper reasons for its decision. In particular:
(i)the Tribunal did not set out the inferences which it drew as to the true basis for the complainant’s less favourable treatment, as it found to have existed;
(ii)the Tribunal did not set out the primary facts from which it drew the inference of the true basis for the complainant’s treatment;
(iii)the Tribunal did not set out the relevant principles upon which it determined the payments of special, general or aggravated damages."
This ground has an air of unreality in this case. I have concluded that the Tribunal fell into error in that it made a finding that Monash and Ms Curzon-Siggers committed a breach of each of the statutes. In order to make out the ground presently under consideration, the appellants must demonstrate that there was no such error but that the Reasons were inadequate as suggested. I decline to make such a finding. Insofar as it was concerned with the primary facts, the Reasons show that the Tribunal set out its findings in great detail. Insofar as it drew inferences, these too are adequately set out. I accept that the Tribunal did not set out the relevant principles as to damages, but I would not allow this appeal on that ground. This is a specialist tribunal whose reasons must be approached in a practical way. I would certainly not endorse a submission which would impose on it in every case the obligation to set out these principles unless the particular facts of the case required this.
Ground (e)
"the Tribunal erred in its determination of the damages to be awarded to the complainant, in that:
(i)on the evidence before the Tribunal, the amount awarded for loss of income does not represent the lawful and proper calculation of a sum to which the complainant is entitled for loss of income; and
(ii)there was no basis in the evidence that the Tribunal could reasonably have reached a determination that aggravated damages should be awarded to the complainant."
The award of damages comprise three components of which two only were the subject of challenge. The first was the loss of two years' salary including superannuation at the rate of $42,492.22 per annum. The evidence which the Tribunal accepted shows that Dr Kapoor would have been employed until June 1998 if she had been given the job opportunities which were denied her by the unlawful discrimination found to have been committed by Ms Curzon-Siggers and Monash.
This finding presupposed that the refusal to renew her contract in December 1995 was wrongful. Accordingly, the funding difficulties which prevented Monash from offering the new position in June 1996 are not fatal to this part of her claim. It may be thought surprising that most of the MOSA staff were retained at a time when the program was either abandoned or under review. But the evidence shows that these staff members had their contracts extended to June 1998. On the assumption, which I make for present purposes, that an entitlement to damages has been made out, I cannot see an error of law in a finding that a well-qualified and competent teacher such as Dr Kapoor would have received like treatment. This is a finding of fact which I will not disturb.
The third component of the damages award is that of aggravated damages. The principles under which such an award may be made are authoritatively set out in the judgment of Winneke, P in Spencer v Dowling [1997] 2 VR 127 at 144-5. An award of such damages is justified "where the conduct, in committing the discriminatory act, has been high-handed, malicious or oppressive, and has been calculated to increase the hurt suffered by the complainant". The ground presently under consideration alleges that there was no basis in the evidence for such a conclusion. The Reasons demonstrate that the Tribunal formed the view that Dr Kapoor had been treated badly by Ms Curzon-Siggers and by Monash. After her decision in December 1995 not to renew Dr Kapoor's contract was overruled, Ms Curzon-Siggers subjected her to unfair treatment at hostile meetings; her criticisms based on Dr Kapoor's failure to offer pastoral care were brought forward as a justification for her discriminatory decision; and the insertion of secondary teaching qualifications for the position of English teacher in May 1996 was itself discriminatory of Dr Kapoor. It is apparent throughout the Reasons that the Tribunal was of opinion that Dr Kapoor had been treated harshly and unfairly over many months. The Tribunal was in a position to assess the character of this treatment and its adverse impact upon Dr Kapoor. In the circumstances, I cannot conclude that its finding that this conduct warranted the exceptional remedy of aggravated damages had no basis in fact.
This ground too has not been made out.
Conclusions
I have concluded that the appeal must be allowed and that the decision and order of the Tribunal must be set aside. I have considered whether to remit the matter to the Tribunal to reconsider the evidence in the light of the observations I have made. I think I should not do so. My reading of the Tribunal's Reasons shows that the real basis for the decision of Ms Curzon-Siggers and Monash not to renew Dr Kapoor's employment in December 1995 was not based on her race or her religious beliefs or activities, or on characteristics which were related to her race or her religious beliefs or activities. In these circumstances no good purpose could be served by remitting the matter to the Tribunal and I will therefore simply allow the appeal and set aside the decision and orders. I will hear counsel further as to the precise orders which should be made and as to costs.
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