State of New South Wales v Amery

The appeal concerned the State of New South Wales and thirteen female teachers employed on a casual basis by the New South Wales Department of Education and Training. The dispute arose from the different salary scales applicable to permanent and casual teachers, with casual teachers being remunerated on a lower scale than permanent teachers, even when performing work of equal value. The respondents contended that this pay differential constituted unlawful indirect discrimination on the grounds of sex, contrary to the *Anti-Discrimination Act 1977* (NSW). The matter was heard by the High Court of Australia.

The High Court was required to determine whether the differential salary scales for permanent and casual teachers amounted to indirect discrimination on the ground of sex under sections 24(1)(b) and 25(2)(a) of the *Anti-Discrimination Act 1977* (NSW). Specifically, the court had to consider whether the respondents were subjected to a requirement or condition with which a substantially higher proportion of persons of the opposite sex could comply, and whether that requirement or condition was unreasonable in the circumstances. The court also had to consider whether the requirement to obtain permanent full-time or part-time teacher status constituted such a "requirement or condition" and, if so, whether it was reasonable.

The High Court, in allowing the appeal, found that the Court of Appeal had not erred in its conclusions regarding the "requirement or condition" that gave rise to the indirect discrimination alleged, nor in its finding that such a requirement or condition was not reasonable. The Court emphasised that the question was not whether the system of dividing teachers into permanent and casual categories, or the requirement of deployability, was reasonable, but rather whether the Department's conduct in not making over-award payments was shown to be unreasonable. The Court concluded that error had not been demonstrated in the Court of Appeal's reasoning.

Consequently, the High Court ordered that the appeal be allowed, the orders of the Court of Appeal of the Supreme Court of New South Wales be set aside, and that the appeal to that Court be dismissed with costs. This outcome upheld the purpose of the New South Wales Parliament to terminate unreasonable indirect discrimination on the ground of sex.