Re MIM
[1996] QSC 11
•19 February 1996
IN THE SUPREME COURT
OF QUEENSLAND
No. 237 of 1995
Brisbane
Before the Hon. Mr Justice Shepherdson
[Re MIM]
IN THE MATTER of an opinion of the Anti-
Discrimination Tribunal given pursuant to
Section 228 of the Anti-Discrimination Act 1991
- and -
IN THE MATTER of an agreement between
Mount Isa Mines Limited and Australian
Manufacturing Workers' Union and others
JUDGMENT - SHEPHERDSON J.
Judgment delivered 19/2/1996
CATCHWORDS: ANTI-DISCRIMINATION ACT 1991. Appeal under s.233 in respect of opinion by Tribunal - whether appeal lies to the Court of Appeal or Judge of Trial Division. - "marital status" and "attribute" considered. Whether appeal succeeds on question of law.
Appearances: H. Fraser Q.C. for the appellant, Mt. Isa Mines Ltd instructed by Feez Ruthning, Solicitors.
Ms M. Wilson Q.C. with her Ms J. Dick, counsel for the respondent, Anti-Discrimination Tribunal.
C.A. Sciacca & Associates, solicitors for the respondent, Australian Workers Union.
Quinlan, Miller & Treston, solicitors for the respondent, Automative, Metals & Engineering Industrial Union of Employees, Queensland.
Hearing Date: 14 December, 1995
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.237 of 1995
Before the Hon. Mr Justice Shepherdson
IN THE MATTER of an opinion of the Anti-
Discrimination Tribunal given pursuant to
Section 228 of the Anti-Discrimination Act 1991
- and -
IN THE MATTER of an agreement between
Mount Isa Mines Limited and Australian
Manufacturing Workers' Union and others
JUDGMENT - SHEPHERDSON J.
Judgment Delivered 19 February 1996
This matter is an appeal brought under s.233 of the Anti-Discrimination Act 1991. Section 233 reads:-
"233. The Commissioner, or a person with a relevant interest, may appeal, against a Tribunal an opinion, to the Supreme Court on a question of law."
Before turning to this section and what is meant by "Supreme Court" I shall recount the following undisputed facts.
Since mid 1994 Mount Isa Mines Limited ("ISA") had been attempting to negotiate an enterprise agreement with unions representing its employees. An agreement was subsequently reached between ISA and the Automotive Metals and Engineering Industrial Union of Employees, Queensland ("AMWU") and the Australian Workers' Union ("AWU") and representatives of the workforce.
After a first round of negotiations in 1994 a draft enterprise agreement was put to the unions and this provided for a remote area payment. The remote area payment was to be by way of a lump sum of $800 payable to all those employees of ISA who had 12 months or more continuous service with ISA. The payment was to be made upon certification of the enterprise agreement by the Industrial Relations Commission. At a mass meeting of employees held on 21 February 1995 the clause was rejected.
In June 1995 the next round of negotiations for an enterprise agreement commenced.
A single bargaining unit was established. That unit consisted of representatives of ISA, union officials and representatives of the workforce. The single bargaining unit agreed upon a lump sum payment. The form of payment as agreed provided for payment of a sum to each employee based on that employee's length of service with ISA together with a further payment to employees with dependants; a monetary cap was imposed upon each family unit and ISA's employees agreed to the principles encapsulated in the lump sum payment clause. Subsequently the clause, as agreed to by the employees, was slightly amended so that each employee with 12 months continuous service or more was entitled to $800. The relevant clause, as slightly amended, reads:-
"PAYMENT OF ALLOWANCE CLAUSE1.Upon the commencement of this agreement, all employees covered by this agreement shall be entitled to be paid an allowance which is to be calculated as follows:-
(a)For any employee with less than 12 months' continuous service with the company, the sum of $400;
(b)For any employee with 12 months' continuous service or more, the sum of $800.
2.In the absolute discretion of the company, a further sum of $600 is payable to any employee with 12 months' service or more, who is able to satisfy the company that the employee has one or more dependants, provided the employee is the only employee of the company within the family unit.
3.Where a claim is made on behalf of a dependant, no single family unit is entitled to receive more than $1,400.
4.For the purposes of this agreement, a family unit includes the employee of the company, the spouse of the employee (including a person who, although not legally married to the employee, has lived with the employee as his or her spouse for a continuous period of at least 12 months immediately before the commencement of this agreement), and all dependants of the employee and/or his or her spouse.
5.For the purpose of making payments pursuant to this clause, 12 months' continuous service shall mean continuous service of 12 months up to and including 10 August 1995."
On 22 August 1995 MIM Holdings Limited was served with a notice of complaint made to the Anti-Discrimination Tribunal concerning the planned payment.
On 11 September 1995 ISA received an opinion from Mr Briton the Queensland Anti-Discrimination Commissioner with respect to the validity of the above "payment of allowance clause".
On 13 September 1995 ISA wrote to Mr Briton relying on s.228 of the Anti-Discrimination Act 1991 and requesting Mr Briton to ask the Anti-Discrimination Tribunal for an opinion as to whether or not the "payment of allowance clause" was lawful pursuant to the Anti-DiscriminationAct 1991. Mr Briton was also asked to seek an opinion from the Federal Sex Discrimination Commissioner as to whether or not the clause was lawful pursuant to the Sex Discrimination Act 1984 (Commonwealth). An opinion from the Federal Sex Discrimination Commissioner was subsequently received and on 27 September 1995 ISA received an opinion from the Queensland Anti-Discrimination Tribunal under the hand of the President of that Tribunal. That opinion is dated 26 September 1995 and is addressed to Mr Briton.
ISA's solicitors made submissions to Mr Briton. These submissions were placed before the President of the Anti-Discrimination Tribunal and she, in a letter dated 13 November 1995 addressed to Mr Briton, declined to change her earlier opinion.
The present appeal seeks an order that this court substitute its own opinion for the opinion of the Tribunal given under the hand of the President on the 26 September 1995. The appellant relies on s.233 which I have already set out.
Section 233 is found in that part of the Anti-Discrimination Act 1991 headed "CHAPTER 8 - OPINIONS". Under Chapter 8, the Anti-Discrimination Commissioner, if asked by a person for advice about how the Act applies in a specific situation, may ask the Tribunal ("The Anti-Discrimination Tribunal") for its opinion. The Tribunal has a discretion whether or not to provide an opinion. It is at present unnecessary to refer to other parts of Chapter 8.
The notice of appeal in this case was addressed to Automotive Metals & Engineering Industrial Union of Employees, Australian Workers' Union and the Anti-Discrimination Tribunal.
The solicitors for these two unions appeared on the hearing of the appeal and announced that they adopted the submissions made by Mr Hugh Fraser Q.C. who appeared for the appellant. The Tribunal was represented by Miss Wilson Q.C. with her Miss Dick of Counsel.
I turn now to s.233. It is a section notable for its terseness but not clarity. It says nothing about whether the appeal is to the Court of Appeal or the Trial Division of the Supreme Court of Queensland. Nor does it say anything as to the powers of the Supreme Court on the hearing of the appeal.
As to what is meant by "Supreme Court" in s.233 I note that "Supreme Court" is not defined in the Anti-Discrimination Act 1991. The Anti-Discrimination Act (Act No. 85 of 1991) received the Royal assent on 9 December 1991. On 24 October 1991 the Supreme Court of QueenslandAct 1991 (Act No. 64 of 1991) received the Royal assent.
The Supreme Court of Queensland Act 1991 which restructured the Supreme Court of Queensland was part of Queensland's then quite recent statute law at the time the Anti-DiscriminationAct was being debated in Parliament in early December 1991.
I consider the legislature of Queensland must at that time be taken to have known that the Supreme Court of Queensland Act 1991 provided (inter alia) as follows:-(a)The Supreme Court of Queensland as formerly established was continued in existence (s.8).
(b)"Court" meant Supreme Court of Queensland (s.3).
(c)"The Court consists of a Chief Justice, a President of the Court of Appeal, other Judges of Appeal, a Senior Judge Administrator and such Senior Judges and Judges as are appointed by the Governor in Council" (s.12).
(d)The Court was divided into:-
(a)The office of the Chief Justice; and
(b)2 divisions namely the Court of Appeal and the Trial Division (s.16)
(e)Subject to the Supreme Court of Queensland Act 1991, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of s.29, the Full Court had jurisdiction to hear and determine; that the Court of Appeal has such additional jurisdiction as is conferred on it by or under SupremeCourt of Queensland Act 1991, another Act or a Commonwealth Act and that the Court of Appeal may in proceedings before it, exercise every jurisdiction or power of the Supreme Court of Queensland, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act (s.29).
(f)That the jurisdiction and powers of the Supreme Court of Queensland that are not required to be exercised by the Court of Appeal are to be exercised by the Supreme Court of Queensland in the Trial Division (s.58 (2)).
(g)That all proceedings in the Trial Division are to be heard and disposed of before a single Judge and that for those proceedings the judge constitutes and is to exercise all the jurisdiction and powers of the Supreme Court of Queensland (sub-sections 59 (1) and (2)).
The words "Supreme Court" in s.233 are capable of referring to either the Court of Appeal or a judge of the Trial Division.
I note that in sub-section 71(1) of the Supreme Court of Queensland Act of 1991 the following appears:-"If a proceeding is started in the Trial Division, but is a proceeding that the Court of Appeal is required to hear and determine -
(a)the proceeding is taken to have been duly started when it was started in the Trial Division; and
(b)the Court of Appeal may, on application by a party or of its own motion, order that the proceeding be removed into the Court of Appeal; and
(c)on an order being made under paragraph (b) the proceeding must be continued and disposed of in the Court of Appeal; and
(d)subject to any order under paragraph (b) the proceeding may be continued and disposed of in the Trial Division.
This sub-section refers to a proceeding that the Court of Appeal is required to hear and determine. I do not construe s.233 and the appeal thereunder as being such a proceeding. Section 233 does not require the appeal to be to the Court of Appeal.
I note also that under s.72 of the Supreme Court of Queensland Act of 1991 an appeal will lie to the Court of Appeal from any judgment or order of the Supreme Court of Queensland in the Trial Division.
Considering the above aspects of the Supreme Court of Queensland Act of 1991 of which the legislature must have been aware when enacting the Anti-Discrimination Act 1991 I have concluded that the legislature intended that the appeal referred to in s. 233 be an appeal to the Supreme Court of Queensland constituted by a judge of the Trial Division. The relevant Parliamentary Debates on the Anti-Discrimination Bill shed no light on this question.
In my view s. 233 and the right of appeal thereby conferred fall within the following dictum of Viscount Haldane L.C. in National Telephone Company Limited v. The Postmaster General (1913) AC 546 p.552 when he said:-"When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches. "
The last portion of that dictum is reinforced by s.72 of the Supreme Court of QueenslandAct of 1991.
As to the powers of the court on an appeal under s.233, Chapter 8 of the Anti-Discrimination Act 1991 is silent. In part 3 of "CHAPTER 7 - ENFORCEMENT" the Anti-Discrimination Act 1991 has set out "WHAT THE SUPREME COURT MAY DO." Part 3 contains three sections numbered 216, 217, 218. Section 216 provides that if a question of law arises in a Tribunal proceeding, the Tribunal may ask the Supreme Court for its opinion and must act in accordance with its opinion and that the Supreme Court may make rules for cases where the Tribunal asks for its opinion, including rules with respect to costs in such cases.
Section 217 provides that a party to a proceeding before the Tribunal may appeal to the Supreme Court against a Tribunal decision on a question of law; it imposes time limitations on such an appeal and imposes a time limit upon a request to the Tribunal to give written reasons.
Of these two sections the latter is more helpful because it is not dissimilar to s.233 in that it provides a right of appeal to the Supreme Court against a Tribunal decision on a question of law.
Section 218 reads:-"218. The Supreme Court on the hearing of an appeal may -
(a)affirm, vary or quash the order or decision appealed against; or
(b)substitute, or make, in addition, any order or decision that should have been made in the first instance; or
(c)remit the matter to the Tribunal for further hearing or consideration or for rehearing; or
(d)make any order as to costs or any other matter that the court considers appropriate".
This section is not expressly limited or linked to an appeal under s.217 but when one considers each of the sub-paragraphs in s.218 it becomes apparent that the powers there stated are referable to an appeal under s.217 and cannot refer to an appeal under s.233.
I say that because s.233 is not concerned with an order or a decision (cf s.218) (a) and (b)) and there is no hearing under Chapter 8 which is headed "opinions" (cf s.218) (c).
Thus, the most that I can gain from s.218 is that the legislature intended that on an appeal under s.217 the court should have certain specified powers. There is no comparable provision in Chapter 8 although the legislature clearly intended that the Supreme Court should have jurisdiction under s.233 to entertain an appeal against a Tribunal's opinion on a question of law.
As to the powers on such an appeal I have derived some assistance from s.232 (also in Chapter 8) which reads:-"232.The Tribunal may revoke an opinion if -
(a)it formed the opinion on the basis of false or misleading information; or
(b)the Supreme Court or the High Court makes a contrary ruling on a question of law covered by the opinion. "
High Court is not defined but I take it to mean the High Court of Australia.
Section 232(b) makes it clear that the contrary ruling by the Supreme Court or the High Court on a particular question of law can result in the Tribunal revoking its opinion. I do not read s.232 as referring to an appeal. It may be that a decision of the Supreme Court or the High Court given at any time after an opinion has been given (in respect of which opinion there has been no appeal under s.233) will cause the Tribunal to revoke its opinion.
I consider it implicit in the Anti-Discrimination Act 1991 that, given that there is an appeal under s.233 of a question of law, the Court to which the appeal is made, has the right to give a contrary opinion to that of the Tribunal but that contrary opinion must be on a question of law.
I conclude therefore that I have power when sitting on this appeal under s.233, if I am so satisfied on a question of law, to set aside or vary the opinion given by the Tribunal and give a contrary opinion should that be necessary.
I turn now to the substance of the appeal. The learned President of the Anti-Discrimination Tribunal ("Tribunal") in her opinion said that the relevant ground of discrimination is "marital status". She referred to the definition of "marital status" contained in the Act and in her opinion said :-"It is unlawful to discriminate on the grounds of marital status by treating a worker unfavourably in any way in connection with work: see section 15(1)(f). The question to be determined in this case is whether or not any workers are being treated unfavourably in connection with work on the basis of their marital status.
Paragraph 2 of the Payment of Allowance clause provides that a sum of $600 is payable to any employee with 12 months service or more who is able to satisfy the company that the employee has one or more dependants. However that payment can only be made if the employee is the only employee of the company within the family unit. A family unit is defined in clause 4 to include an employee of a company, the spouse of the employee, including a de facto spouse, (and it should be noted that the definition is not the same as that used in the Act) and all of the dependants of the employee and/or his or her spouse.
The payment for dependants is therefore available to any person who is an employee, whether or not they are married or in a de facto relationship, on the basis of whether or not they have a dependant. However, there is a group of people who will be denied that benefit in spite of having a dependant. The only people who fall into that category are employees who are married or in a de facto relationship with another employee. In other words, it is their marital status to another employee which prevents them from receiving the allowance which is receivable by any other person with a dependant.
This may be seen as indirect discrimination under section 11 of the Act. Section 11(1) provides that:
"Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term -
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute to comply or are able to comply; and
(c)that is not reasonable."
In my view this could be seen as indirect discrimination in that:
(a)a person with the attribute of being married or in a de facto relationship with another person who is an employee of the company does not or is not able to comply with the term imposed, that is that the employee is the only employee of the company within the family unit; and
(b)a higher proportion of people without the attribute, that is who are not married or in a de facto relationship with a fellow employee of the company, comply or are able to comply; and
(c)such a term is arguably not reasonable because it denies a person a benefit merely on the basis of their marital status within the company. The company has not put forward any justification. The onus lies on them in accordance with s.205 of the Act.
I do not however believe that the payment for dependants is of itself unlawful discrimination. A person may have a dependant regardless of their marital status. The dependant may be a child, a sibling or a parent. There is no relevant discrimination on the basis of an attribute found in section 7(1) of the Act."
(The underlining is mine)
The learned President then said:-
"Conclusion
It is my opinion that there is a strong case that Clause 2 of the agreement is indirect discrimination on the basis of that (sic) the attribute of marital status in connection with work and is therefore in breach of the Anti-Discrimination Act."
Mr Fraser Q.C., in his argument pointed to the passages which I have underlined in the above extract from the opinion and he submitted that:-
(a)The opinion invoked s.11 of the Anti-Discrimination Act which section refers to indirect discrimination on the basis of "an attribute".
(b)That the above underlined passages show that the Tribunal treated "attribute" as comprehending "marital status to another employee", and "being married or in a de facto relationship with another person who is an employee of the company".
(It seems to me that his submission also was intended to cover the learned President's conclusion that "attribute" comprehended "marital status in connection with work".)
(c)That the Tribunal having done so was in error because "attribute" is defined in s.4 as meaning "an attribute set out in s.7"; because the attribute set out in s.7 which the Tribunal considered relevant was "marital status" and that that phrase as defined in s.4 meant (so far as the Tribunal considered relevant) "whether a person is married "or "whether a person is a de facto spouse".
Mr Fraser further submitted that "marital status" does not comprehend any characteristic of a person's spouse but merely the fact of marriage or the fact of having a de facto spouse.
He argued that it was not part of the "attribute" of marital status as was assumed in the learned President's opinion, that the marriage is to a person who has the characteristic of being an employee of the appellant or that the de facto spouse has the same characteristic. He submitted that a literal interpretation of the Anti-DiscriminationAct was against such assumption being made. He relied on the following decisions which bore on Commonwealth and New South Wales Legislation - Schofield v. Department of Community Services and Health (Commonwealth) (1990) (EOC 92-324) per Sir Ronald Wilson at p.78207; Boehringer Ingelheim Pty Ltd v. Reddrop (1984) (2 NSWLR 13) per Mahoney J.A. at 21 and Priestley J.A. at 24 and 28-29 and Waterhouse v. Bell (1991) 25 NSW LR 99). These decisions support a literal interpretation.
Mr Fraser recognised that once the Tribunal treated "attribute" (meaning "marital status") as comprehending reference to marriage to another person who is an employee of the company the Tribunal could conclude that that characteristic was a disqualifying factor under clause 2 and thus it was inevitable that the Tribunal would conclude that the requirements of s.11 (1) (a) and (b) were fulfilled. He argued that when the Tribunal reached each of those conclusions it did so through the above error of law.
He further submitted that the subject clause 2 does not discriminate on the ground of marital status. He submitted that the clause "discriminates" in favour of the person receiving the $600 on the ground that each of the following elements is present:-(a)the person is an employee of the appellant with 12 month's service; and
(b)the person satisfies the appellant that the person has one or more dependants;
(c) the person is the only employee of the appellant within the family unit.
He submitted, correctly, that the above two elements (a) and (b) are not "marital status" and that the remaining element (c) is also not marital status. He argued that what is relevant in clause 2 in the case of a married employee is not the existence of the marriage or the fact of a de facto relationship but whether the spouse is an employee of the company and has a dependent.
The definition of "marital status" is important to the outcome of this appeal. Miss Wilson Q.C., representing the Tribunal submitted that the combined effect of ss.(7)(1)(b) and (15)(1)(f) is to prohibit an employer from treating a worker unfavourably in any way in connection with his or her work whether directly or indirectly on the basis of his or her marital status. She referred to s.11(1) of the Act and submitted that s.11(1) operates by reference to "a term" and that it is a term of the particular agreement that an employee can receive the extra benefit only if he or she is the only employee of the appellant within the family unit. (the underlining is mine) She pointed to the definition of family unit in para.4 of the "Payment of Allowance Clause".
It is important to bear in mind that the opinion from which the appeal is brought has relied on s.11(1); this is the sub-section that deals with when indirect discrimination on the basis of an attribute happens. (the underlining is mine)
In the present case, that "attribute" taken from s.7 (1) is "marital status" (found in p.7(1)(b)) the definition of which is found in s.4 of the Act and is as follows:-"Marital status" means whether a person is -
(a)single; or
(b)married; or
(c)married but living separately and apart from the person's spouse; or
(d)divorced; or
(e)widowed; or
(f)a de facto spouse"
In the present case we are concerned with the meanings (b) and (f) as these were the attributes chosen by the learned President.
In my view, in the relevant case, the attribute chosen by the learned President from the above definition of "marital status" must have meant "whether a person is married"or "whether a person is a de facto spouse".
Adopting "marital status" as equating to "whether a person is married" the subject paragraph 2 would read as follows:-
"In the absolute discretion of the company, a further sum of $600 is payable to any [married] employee with 12 months service or more who is able to satisfy the company that the [married] employee has one or more dependents provided the [married] employee is the only employee of the company within the family unit"
Adopting "marital status" as equating to "whether a person is a de facto spouse "the subject paragraph 2 would read:-
"In the absolute discretion of the company, a further sum of $600 is payable to any employee who is a de facto spouse with 12 months' service or more, who is able to satisfy the company that the employee who is a de facto spouse has one or more dependants, provided the employee who is the de facto spouse is the only employee of the company within the family unit."
In the present case the definition of "marital status" in the Act focuses on the fact that a particular employee is married or is a de facto spouse. The definition does not extend beyond the limit of a person being married or a person being a de facto spouse. The definition does not permit consideration of whether the person to whom that employee is married or who is the de facto spouse of that employee is a person employed by ISA.
With respect, I am unable to agree in the correctness of the view expressed by the learned President that as a matter of law there is a "marital status to another employee" and that there is an "attribute of being married to or in a de facto relationship with another person who is an employee of the company" and that there is an "attribute of marital status in connection with work".
The definition of "marital status" in s.4 accords generally with the common law definition of status (save perhaps for definitions (c) and (f) of "marital status"). In Daniel v. Daniel (1906) 4 CLR 563 at p.566 Griffith C.J. essayed a definition of "status" and said:-"Without pretending to give an exhaustive definition, I apprehend that the term "status" means something of this sort: a condition attached by law to a person which confers or affects or limits the legal capacity of exercising some power that under other circumstances he could not or could exercise without restriction"
In Shanks v. Shanks (1942) 65 CLR 334 Starke J. (at p. 336) said - "marriage is a status. A decree dissolving a marriage is a judgment upon status". In Ford v. Ford (1947) 73 CLR 524 the following statements appear:-
(a)"A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which, in most cases at least, could not be created by any agreement of such persons. An alien, for example, as distinct from a subject of the Crown, a married person as distinct from an unmarried person, a bankrupt as distinct from other persons generally, are all persons who have a particular status".
(per Latham C.J. at p. 529).
(b)"Status" among natural persons arises from a variety of causes ... the term has no "very precise connotation" ... marriage is a status within the definition and a status well known to the law." (per Starke J.at p. 531).
(c)"Marriage is the fulfilment of a contract satisfied by the solemnization of the marriage, but marriage directly it exists creates by law a relation between the parties and what is called a status of each. The status of an individual, used as a legal term, means the legal position of the individual in or with regard to the rest of the community. That relation between the parties, and that status of each of them with regard to the community, which are constituted upon marriage are not imposed or defined by contract or agreement but by law" per Brett L.C. in Niboyet v. Niboyet (1878) 4 PD1 at p. 11 approved by Dixon J. (as he then was) at pp. 535-6.
The fact that a particular employee of the appellant happens to be married to or to be the de facto spouse of another employee of the appellant is an incident of each employee's marital status and has no bearing on the attribute of "marital status" as defined in the Act.
Thus far, in my respectful view it may be said the learned President erred in law when she concluded "that there is a strong case that clause 2 of the agreement is indirect discrimination on the basis of that (sic) the attribute of marital status in connection with work" and when she earlier referred to "marital status to another employee" and to "the attribute of being married or in a de facto relationship with another person who is an employee of the company".
However, Miss Wilson relied on sub-sections 8 (a) and (b) of the Anti-DiscriminationAct which read:-"8. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of -
(a)a characteristic that a person with any of the attributes generally has; or
(b)a characteristic that is often imputed to a person with any of the attributes ..."
For the purposes of the present case the word "attribute" equals "marital status" equals "whether a person is married" and equals "whether a person is a de facto spouse". It seems to me therefore that before either of these two bases is made out it must be demonstrated that the employee who is married to or is in a de facto relationship with another employee of the appellant generally has a particular characteristic (sub-section 8(a)) or that a particular characteristic is often imputed (sub-section 8(b)) to that employee who is married to or is a de facto spouse of another employee of the appellant.
Miss Wilson Q.C. in support of her argument relying on s.8 submitted that the term in question (clause 2) of "Payment Of Allowance Clause" is predicated on the assumption that in a married couple (or a couple living in a de facto relationship) there will be one bread winner and one dependent and that such stereotyping amounts to indirect discrimination within s.8.
I should at this stage say that the opinion from which the appeal is brought did not rely or purport to rely on s.8. Mr Fraser Q.C. concedes that the argument of Miss Wilson is relevant though it was not raised by the learned President in her opinion.
He has further submitted that the term in question does not focus on "couple" as submitted by Miss Wilson and that the predicated term in question relied on by her is not a characteristic within sub-sections 8 (a) or (b).
To resolve this aspect of the case I have looked at the "Payment of Allowance Clause" before me and I am unable to conclude that the term which is in question namely para. 2 is predicated on the assumption contended for by Miss Wilson and that that predicated term is a characteristic within sub-sections 8 (a) or 8 (b). It may well have been that 40 years or more ago, it could be said that the assumption of one breadwinner in a couple living together was a general attribute of that couple or a characteristic often imputed to that couple. Although I have no evidence on the point I consider that in today's society such views are no longer held. It is a notorious fact that where couples of working age are married or unmarried and both live together the general rule is that there is no single breadwinner and both work earning income.
I consider that the term in question (para. 2) must be read in the context of the whole "Payment of Allowance Clause" and when that is done it can be clearly seen that "family unit" in para. 4 is not exhaustively defined - (see use of "includes" in para. 4) and imposes a ceiling on the amount to be paid to a single family unit.
In my respectful view the definition of "marital status" must be given its literal interpretation and the learned President of the Tribunal did err in law in the conclusion which she reached and which I have earlier set out and also when making the statements which I have underlined in the context of her decision which I have earlier set out.
I have concluded that this appeal succeeds. The question arises - because the Act is silent - exactly what form of order should I make? I do not consider this matter to be the subject of s. 232 because s.232 gives the Tribunal a discretion to revoke an opinion if this court were to make a contrary ruling on a question of law covered by the opinion. Section 233 would be pointless if s.232 applied. Assume that the Tribunal disagreed with my opinion and decided not to revoke its opinion from which the present appeal is brought. A most unsatisfactory state of affairs would exist. Clearly I should adopt the earlier quoted dictum of Viscount Haldane L.C. in National Telephone Company Limited v. Postmaster General and apply the ordinary incidents of the appeal procedure in the Supreme Court of Queensland. That being so, this court has the right to set aside or vary the opinion appealed from. In the present case there is an appeal from an opinion on a question of law. In my view I am entitled to set aside that opinion if on a question of law an error has been made in giving that opinion. It would be quite unsatisfactory if the appellant were merely told the opinion is erroneous. Mr Fraser seeks to have me make a declaration. In my view a declaration should be made for the following reasons. First it will enable the parties to know exactly where they stand in relation to this particular matter and secondly, it will finally determine the rights of the parties. I use the word "finally" although I recognise that there is as I have said a right of appeal to the Court of Appeal who may or may not take a different view.
In the result then I make the following orders:-1.I allow the appeal of Mount Isa Mines Limited and set aside the opinion of the Anti-Discrimination Tribunal dated 26 September 1995.
2.In my opinion clause 2 of "payment of allowance clause" does not constitute discrimination on the basis of "marital status" within the meaning of the Anti-Discrimination Act 1991.
3.I declare that clause 2 of "Payment of Allowance Clause" as set out in the opinion dated 26 September 1995 does not constitute discrimination on the basis of the attribute of "marital status" within the meaning of the Anti-Discrimination Act 1991.
I turn now to the matter of costs. The Act says nothing on this aspect of this appeal. Mr Fraser submitted that the general principle as to costs should apply and that costs should follow the event. Miss Wilson submitted that the court had its general jurisdiction as to costs.
Again I apply the above statement of Viscount Haldane L.C. The ordinary incidents of the procedure of this court apply. One of these is that costs follow the event. The appeal having succeeded, the appellant should obtain an order for costs against the respondent Tribunal.
Since the above comments on costs were typed I have today been advised that the appellant and the Tribunal have reached agreement on the matter of costs.
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