Styles v The Secretary of the Department of Foreign Affairs and Trade

[1990] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl13 of 1989

B e t w e e n -

HELEN STYLES

Applicant

and

THE SECRETARY OF THE DEPARTMENT

OF FOREIGN AFFAIRS AND TRADE

First Respondent

and

PHILIP ARTHUR HARRISON

Second Respondent

Application for special leave to

Styles

appeal

MASON CJ

DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 1.50 PM

Copyright in the High Court of Australia

SlTll/1/PLC 1 16/2/90

MR J.W. SHAW, QC: If the Court pleases, I appear with my

learned friend, MR A.L. McSPEDDEN, for the

applicant. (instructed by Bartier Perry & Purcell)

MR D.M.J.	BENNETT, ~C: If the Court pleases, I appear with
my learne friend, MRS P.A. SHARP, for the first
respondent. (instructed by the Australian Government
Solicitor)
MASON CJ:	Before you start, I should say that communication

has been received from the second respondent indicating

that he does not wish to take part in the proceedings

and that he submits to any order of the Court except

as to costs.

MR SHAW:	Thank you, Your Honour. Your Honours, this application
for special leave arises fr~m the first piece of
litigation considering the notion of indirect
discrimination in the context of the Commonwealth
legislation, the SEX DISCRIMINATION ACT 1984, and
the provisions of the PUBLIC SERVIC ACT which require decision makers to take account or to have regard to equal opportunity programmes and the like. It is
true that the Court considered similar New South Wales
leg-islati(ln,.in. reiij?ect _of i.]ldirect-·-dia,c~imination in AIS V · BANOVIC,. 89. ALR .1-,, although. different issues
ar-ise here than a.rose- in that . case.
We submit that the circumstances of the present case raise questions of public importance and questions
of principle concerning the effective operation of this statutory scheme, both in respect of indirect
discrimination and in respect of the application of equal opportunity principles. The trial judge,
Mr Justice Wilcox thought that important questions
arose as appears at page 4 of the applicationbookwhere
His Honour referred to:

important questions relating to the
administration of the Australian Public

Service; and especially the effect upon

employment practices within that Service

of the SEX DISCRIMINATION ACT 1984.

However, insofar as the case relates to
the SEX DISCRIMINATION ACT, its
ramifications extend beyond the Public
Service; to all employers who are bound

by that Act.

In our submission, if the reasoning of the

Full Court is to continue to apply then that

reasoning process tends to render this legislation,
remedial legislation, in so far as it impacts upon

past discriminatory practices nugatory or, at least, to

significantly dilute the impact of that legislation

contrary to what we would submit is its spirit and

intention.

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Styles

Helen Styles, the applicant, complained of a

requirement which was imposed upon her application

for transfer to a journalist's position in London,

being a grade AZ position, and the requirement was

to the effect that successful applicants for the
transfer had to occupy the same substantive grading

as was assigned to the vacant office, that is, they had to be a grade 2 journalist. Ms Styles was only

a grade Al journalist.

Both Mr Justice Wilcox and the Full Court held

that unless an applicant for transfer was an A2 grade

journalist then there was no practical or realistic

chance of successfully securing the opportunity of

transferring to London. That appears at the bottom

of page 76 of the application book. The trial judge

held, and the majority of the Full Court held,
that the criterion in question was discriminatory

in that a substantially greater proportion of males

than females could comply with the requirement to hold
the relevant substantive grade so as to qualify for

transfer.

Your Honours, there are two questions raised

by this application for special leave. The first

is was the reasoning of the Full Court correct in

holding that the discriminatory requirement or

condition was nevertheless reasonable.

MASON CJ:  Now, is that not a question of fact?

MR SHAW: Essentially - - -

MASON CJ: And not only a question of fact but a question of

fact that turns on this particular case, this

particular requirement in the circumstances of this

case.

MR SHAW:	I accept that, Your Honour, but,in our submission,
there are questions of principle which arise from
the reasoning process which was concerned to find
principle. I must accept that one does need to focus
that fact which nevertheless raised questions of
on the circumstances of a particular case but, in our
submission, the way that the Full Court approached
that finding of fact was erroneous in basic ways.

MASON CJ: What are the questions of principle that are raised

by your submission that there were errors in the

way in which the court went about reaching

its conclusion?

MR SHAW:	The question of principle is essentially whether
it was open to the court to determine that the criterion or the requirement'constituted a precept of fairness",to use the terminology used in the Full Court, and rhar because it was fair in the
sense that it was objective that it applied equally
to all, that that element, that ingredient of
fairness, was sufficient to make it reasonable.

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It is true that the maiority of the Full Court nominally weighed or said that they were weighing

the fairness or the reasonableness of the test against

the discriminatory impact but, in our submission.

there is no real indication of thP. factors that were at

work in that weighing process. In our submission,

it was merely nominal that the court said that they

were weighing or balancing discriminatory impact

against the alleged fairness of this particular

criterion. In our submission, there was no real

attempt that is discernible from the judgment of the

Full Court to quantify the discriminatory impact or to assess in detail the discriminatory impact as

compared with the alleged value of the transfer at

the same substantive grade principle.

The court, with respect, seems to have jumped from a conclusion that the test was objective to the

conclusion that it was therefore reasonable without

examining more and, in our submission, if it is

possible to characterize a test of this kind as reasonable merely because it depends upon some

attained qualification or grading, then that

substantially reduces any impact of the

anti-discrimination legislation.

We would contrast the approach of Mr Justice Wilcox,

at first instance, as appears at page 48 of the

application book where His Honour asked:

whether, having regard to such discriminatory

effects as -

are demonstrated -

and considering the question in a practical

and not merely theoretical way -

is the requirement or condition

objectively justified.

That appears at page 48 as I have indicated, and it

was that process of reasoning at first instance which

led His Honour to think that, rio, the test was not

justified, it merely assisted tidy administration.

It was not justifiable in the sense of being reasonable

when balanced against the discriminatory effects that

it had. Mr Justice Wilcox was clearly of the view, as appears at page 54, line 15, that mere questions

of tidiness of administration did not constitute a

sufficient justification for imposing the discriminatory

limitation.

Although the Full Court thought that the condition

was one based on merit, in truth, it was based upon

attainments of a grading in the Public Service over a

neriod of time during which period of time no

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legislation was in force or effecr proscribing

anti-discriminatory practices.

DEANE J:	Was there any suggestion or any evidence that your client's grading was, in any way, the result of her
being a woman?
MR SHAW:	There was no evidence of that, Your Honour.

DEANE J: The only evidence in that regard was the evidence

that far more males than females had the higher

grade 7

MR SHAW:	That is so and that is so in respect of the particular qualification. There was also evidence that in the
upper echelons of the Department there was an
overwhelming bias towards males - senior officers.

DEANE J: Which was a bit the other way in the lower levels.

MR SHAW:  That is so, Your Honour, yes. In addition to saying,

as we have done, Your Honours, that the approach of

the Full Court was virtually an automatic translation

from objectivity and the characterization of this

criterion as being fair, that it was therefore

concluded that it was reasonable. We would also

submit that the Full Court overlooked that reasonablness

must be assessed having regard to the circumstances of

the case. That is what section 5 - I am sorry, I have

overlooked handing up to the Court some extracts from

the legislation and also two cases, AIS V BANOVIC,

and also REG V TOOHEY.

McHUGH J:  Why do you say they overlooked a question of

all the circumstances of the case having regard to

what appears at line 5 on pa~e 9R7

MR SHAW:	We say that, Your Honour, because apart from that
single sentence the matter is approached in a
completely global fashion.  The court simply said,
"Look, to say that a transferee must occupy the same
precept of fairness and therefore it is reasonable.
substantive grading as the vacant office is a
We consider the discriminatory impact", although no re;:isoning process is disclosed in that regard, "but we say that because it's a precept of
fairness, because it is not solely concerned with seniority but rather achievement, therefore the
criterion was reasonable."

Mr Justice Wilcox took quite a different

approach in this regard also as appears at pages 51

and 52 of the application book. His Honour did take

account of the particular facts governing this

transfer or associated with this transfer. His Honour

said:

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there were insufficient A2 journalists

to fill the available positions.

So that in these particular circumstances there

was no reasonable basis for applying this mandatory

requirement that you had to have the particular

grading. And, in our submission, that approach

directed to the particular evidence taken by the

trial judge is to be preferred is correct in

principle as compared to the global or blanket

approach taken by the Full Court.

I am sorry, I was going to hand un documPnts

which were excerpts from the legislation and these
two judgments, Your Honours.

MASON CJ: Thank you.

MR SHAW:	We would point out, in relation to the argument
that I have just put to the Court, that in AIS V
BANOVIC Mr Justice Dawson, as we appreciate
His Honour's judgment, emphasized that reasonableness
was to be determined having regard to the particular
circumstances - obviously quite different circumstances.
This appears in the report in 89 ALR 1 at 20. At the very end of Mr Justice Dawson's judgment, His Honour observed:

that the principle of "last on, first off"

is not inherently unfair or unreasonable.

Indeed, it might accord with connnon sense. But then

His Honour said:

The requirement imposed in this case was

unreasonable because in the particular

circumstances it repeated the

discriminatory effect of the prior

recruitment practice.

This, we submit, focuses attention on the need to look

at the particular facts rather than to take a

completely generalized approach.

Now, I have really put what I wanted to put on

the first of the questions which arise in the

application, Your Honours. Could I just go back to

our informal extracts from the legislation and very

quickly point out to the Court what the relevant

statutory provisions are. So far as the SEX

DISCRIMINATION ACT 1984 is concerned, it is

section 5(2)(b), the notion th~t a person:

discriminates against another person on

the ground of the sex of the aggrieved

person if the discriminator requires the

aggrieved person to comply with a

requirement or condition .....

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(b)	which is not reasonable having
regard to the circumstances of the case.

That is the ground upon which our client's claim

failed before the Full Court. All of the other

elements were held to be made out.

Then, in relation to the prohibition upon such

discrimination, it is section 14(2)(b) which refers

specifically to opportunities for transfer which

relates - the notion of transfer which is relevant

here to the act of discrimination.

In relation to the PUBLIC SERVICE ACT 1922,

section 22B is relevant. "Employment matters" are

defined as includin~, if one looks at paragraph (b):

the promotion and transfer of -

(i) officers to offices in the Department.

Then "equal employment opportunity program" is

defined:

in relation to a Department, means a program

designed to ensure that -

(a) appropriate action is taken to elimin~te

unjustified discrimination against women

and persons in designated groups in

relation to employment matters in that

Department; and

(b) measures are taken to enable women and

persons in designated ~roups to

(i) to compere for promotion and tran~fer in rhe nep~rtment and in

the Service generally.

"Program" is then defined as including:

the particular objectives to be achieved by

the program;

the policies to be adopted, and the procedures

to be followed to achieve those objectives.

Subsection (2) provides:

Without limiting the generality of the

definition of "equal employment opportunity

program" in sub-section (1), the equal

employment opportunity program for a

Department shall include provision for

action to be taken to -

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(a) examine practices in relation to

employment matters in the Department to

identify -

(i)     any practices that unjustifiably

discriminate against women or

persons in designated groups -

and going down to (b):

eliminate any practices, and eliminate or

ameliorate any patterns, identified in

pursuance of naragr~ph ta)

I refer to section 22B(S) on the next page:

The Secretary of a Dep~rtment shall take

any action necessary to give effect to

the equal employment opportunity program
for the Department and any person who
exercises powers in relation to emplovment

matters -

which Your Honours will recall includes transfers -

in the Department shall have regard to

the program in exercising those powers.

Then section 33(3) provides:

Without limiting the generality of

sub-section (1), powers under this Act

in respect of appointments, transfers and

promotions shall, subject to sub-section (4),

be exercised without -

going to (b):

discrimination that is unlawful under the

..... SEX DISCRIMINATION ACT 1984.

Now. Your Honours. I have so far submitted that

there are important questions of principle arising
from the way that the Full Court approached the
determination as to whether the requirement was

reasonable or unreasonable and I have contrasted

that approach with the approach of the trial judge.

In our submission, special leave should be granted

on that point.

The second point, if I can move to that, is that

there was a failure, in our submission, to have

regard to the equal employment opportunity programme

in exercising the powers to transfer.

MASON CJ:  Now, you have the same difficulty there, do you not,

that you are challenging a finding of fact?

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MR SHAW:	Yes, again, a finding of fact is involved, Your Honour,
but, in our submission, there are important legal
questions concerning the meaning of a statutory
obligation to have regard to particular factors.
If I can just explain the way this arose: the majority
view on the Full Court, at the bottom of page 104 of
the application book, was that there was a relevant
programme in existence and Their Honours had regard
to the extended statutory definition of "program" to be found in section 22B(l) of the PUBLIC SERVICE
ACT.

Once the court had found that there was a

relevant EEO programme, the court then made two
findings of primary fact. Firstly, that the
decision maker took the view, mistakenly, that the

EEO guidelines were inapplicable to a transfer.

The decision maker simply thought, in our submission,

that these guidelines were irrelevant to the reasoning

process necessary to lead up to the decision to

transfer X or to transfer Y. That conclusion appears

at page 106 of the application book where the court

held, in line 3:

In his oral evidence, Mr Murray said that

that document was not used by posting

advisory committees. Mr Murray took the

view that its use was required only in

relation to decisions to promote rather than

to transfer an officer. But the document

itself envisages use in decisions for both

promotions and transfers. Further,

the definition of "employment matters"

in sub-s 22B(l) of the PUBLIC SERVICE ACT

extends to both promotions and transfers.

Apart from the misapprehension on Mr Murray's part

that these guidelines were irrelevant to the

transfer, the second primary finding of fact that

the court made was favourable to the respondents'

of the EEO principles and as appears at the bottom	case, to the effect that Mr Murray was well aware
of page 105:

that the Department tried to ensure that

due regard was had to the Equal Employment

Opportunity Program.

So, there is a conjunction of two factors: one,

the decision maker is aware of the existence of the

programme; two, he attempts to·have regard to it
but, thirdly, and in our submission, fatally, he

thinks that it has no relevance. as a matter of law

or proper application to the reasoning process.

Your Honours, our short point is, in our

submission, as a matter of law, it is impossible to

satisfy a statutory requirement to have regard to

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certain factors if the decision maker labours under

a misapprehension that those factors are strictly

irrelevant to the decision being made. We submit
that the requirement upon a decision maker to have
regard to a criterion or a circumstance requires

the decision maker to take those matters into

account and to give weight to them as a fundamental

element in making the decision. Could we refer in

that regard to what two members of the Court said

in REG V TOOHEY, 158 CLR 327, a copy of which I have

handed up, at page 333 point 5. The then Chief Justice

Mr Justice Gibbs said:

When the section directs the Commissioner to "have regard to" the strength or

'	otherwise of the tranditional attachment
by the claimants to the land claimed and
to the principles set out in sub-s 4, it requires him to take those matters into
account and to give weight to them as a fundamental element in making his
recommendation.

MASON CJ:  Mr Shaw, is there any elucidation of the sentence

that appears on page 107, commencing about line 17-18,

where the court acknowledges that:

Mr Murray was mistaken as to the

application of the guidelines, but goes on to say:

that did not mean, looking at the relevant

circumstances as a whole, that he did not

have regard to the equal employment

opportunity program.

MR SHAW:	I can only say, Your Honour, that"the relevant circumstances as a whole" must include those
specified earlier in the judgment in this particular respect, that is, that his evidence was that he
tried to ensure that due regard was given to
this programme although query how one can try to
pay due regard to a programme if the decision maker
just thinks it is a distraction.
MASON CJ:	I suppose it may be possible but can you take us

to the passage in the evidence that provides the

answer to that because that must be the passage that

the court had in mind in its reference on page 107?

MR SHAW:	Yes, Your Honour. There is a passage from the evidence
extracted - - -
MASON CJ:	It is in Mr Justice Wilcox's judgment, is it not?
MR SHAW:	Yes, I think that is so, Your Honour, thank you.

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MASON CJ:	Page 11, is it? Is that the passage?
MR SHAW:	Yes, thank you, Your Honour. Yes, the cross-examination
of Mr Murray.  No, I am not sure whether that
precisely addresses this question of the EEO programme.
That is the passage which goes to the fact that in
reality you could not get the transfer without
holding the position.  I am sorry, Your Honours, I
will find this as expeditiously as I can. But,
certainly, in Mr Murray's affidavit he asserted
that he, firstly, knew about the EEO programme
and, secondly, was always concerned to apply it.
MASON CJ:	I do not think it is good enough from your point of·

view just to rely on the fact that Mr Murray said

that the programme was not applicable. I mean, it

is consistent with that stat·ement for Mr Murray

also to have said, "Notwithstanding that it's not

applicable, none the less I had regard to it."

MR SHAW: Well, in our submission, there is no indication that

he did say that, Your Honour.

MASON CJ:  I mean, the difficulty is to demonstrate that, you

really have to refer to his evidence.

MR SHAW:	We would submit, subject to any other passage that I
refer the Court to, the passage at the top of page 106
is a summary of Mr Murray's evidence in this respect:

that the document was not used by posting

advisory committees.

And that was the relevant process here.

Mr Murray took the view that its use

was required only in relation to

decisions -

to promote, rather than to transfer, although -

McHUGH J: Well, perhaps they had in mind what appears at

line 11 on page 106:

apparent from Mr Murray's oral evidence

that in reaching the decision in question,

he was well aware - - -

MR SHAW:	Yes. Well, in our submission, you may be well aware
of a factor but if you do not think it is relevant and do not apply it in the intellectual process giving rise to the decision, then you are not having regard to it. The decision maker may be well aware of all sorts of things but that is not sufficient to
show that he is having regard to it, in our submission.
Nor would the evidence referred to at the bottom of
page 105 be sufficient which is simply a general
statement:

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that the Department tried to ensure that

due reeard was had to the Equal Employment

Opportunity Program -

giving examples. Could I also refer to a paragraph
in Mr Justice Wilcox's judgment at page 27,

the first complete paragraph on the page:

Mr Murray conceded in cross-examination

that the selection committee which he

chaired on 1 October 1987 did not use the

form provided by these guidelines in

connection with the London posting. He

thought that it was unnecessary to do so,

because the committee made only a

"transfer decision".

We do not think, Your Honours, that there is any

excerpt from the affidavit in the material and we
believe that we have drawn the Court's attention to

those passages in the judgment which might be

thought to support the judgment of the Full Court

but, in our submission, none of those summaries of
the evidence go anywhere near showing that the

decision maker had regard to the EEO guidelines or

principles.

The summary of the evidence at the bottom of

page 105 is plainly at a high level of generality.

It simply talks about the Department trying to ensure

for general purposes that due regard was had to this

programme. No evidence or no finding of the Full

Court shows or indicates that the decision maker

had regard to the EEO programme in this decision even

though he misapprehended the true effect of that

programme or its applicability.

McHUGH J:  But what is the special leave point in relation to

this second point?

MR SHAW: Well, it is the point of principle about whether a

decision maker can have regard to something if he

thinks that it is irrelevant.In the absence of any

evidence, perhaps for more abundant caution or for

some other reason, he did in fact have regard to it.

We would respectfully suggest that there is a difficulty about saying that a decision maker had

regard to something when he thought it was inapplicable

because then he would, one would have thought, fall

into the error under the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT of taking into account an

irrelevant consideration. If Mr Murray thought, as

he said he did, that EEO was just irrelevant to

transfer as distinct from promotion, then he must

have thought as a matter of logic that it would be

irrelevant for him to take into account those principles

and he would therefore fall into an administrative

law error if he had.

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Now, we submit there is nothing in the

judgment, nothing in the passages I have referred to,

which can support as a matter of logic the

conclusion that the Full Court reached.

MASON CJ:  But the problem is that the principle is

well settled, is it not? The very passage that you

quote from TOOHEY's case demonstrates what "have

regard to" entails. It does not need a decision
of this Court - another decision of this Court

to establish what is required.

MR SHAW:	We submit that doubt has been cast upon that
principle by the way in which the Full Court
approached it. The Full Court, in fact, mentioned
TOOHEY's case at the bottom of page 106 but, in our
submission, misapplied it and if it be thought that
what the Full Court did was an application of those dicta from TOOHEY's case, then the matter is attended
by doubt and the law is unsettled and needs
adjudication by this Court, we respectfully submit.
MASON CJ:	But we have not got to the stage yet where the

Federal Court overrules our decisions, have we?

MR SHAW:  No, certainly not.

DEANE J: But is not what is involved here this, that the

Full Court said that they did not pay regard to a

particular document which they thought inapplicable

and which had been brought into existence to assist

in promoting the objectives of the progratillile but

that he did have regard to those objectives in that

he was conscious of them in making his decision?

Whether the evidence justified that, is another

thing, but that is what they have said and it

is also apparent from his oral evidence that in

reaching the decision he was well aware.

MR SHAW:	Our point, Your Honour, is that consciousness or
awareness is not sufficient; that "consciousness" does not equal "having regard to". We would submit
the importance of the point is this, that if a
decision maker can go so far as to say, "I know
about these considerations but I don't think they
have anything to do with the decision I'm making",
if that is sufficient for him to be having regard
to equal opportunity principles, then this legislation is a very weak instrument, indeed, not really achieving its obvious purpose of ensuring that public
service decision making does, in reality and in
substance, take account of the need for equal
opportunity principles.

In our submission, there is both a discernible

question of principle here and one of some importance

in the administration of the public service and in

giving effect to the amendments to the PUBLIC SERVICE ACT

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to be found in section 22B. We would submit that

it was clear on the findings of the Full Court that

a decision maker failed to take into account a

relevant consideration, namely, these objectives,

policies and procedures under the EEO programme. Your Honours, in conclusion, we respectfully

submit that the conclusions of the Full Court on

these two points are sufficiently attended by doubt

as to warrant this Court granting special leave;

that important matters concerning the administration

of anti-discrimination legislation are involved and
that there are significant differences between the
views of the trial judge and of the Full Court as to

the state of the law in this area which warrant

resolution by this Court. ~f the Court pleases

MASON CJ: Thank you, Mr Shaw. The Court need not trouble you,

Mr Bennett.

We are not persuaded that the proposed appeal

would raise any question of general principle or
would result in the elaboration of such a principle.

The applicant seeks to challenge a finding that the condition or requirement was reasonable. That was a finding of fact turning on the particular

circumstances of the case. The applicant also seeks

to challenge a finding that the relevant officer had

regard to the Department's equal opportunity

programme. That, again, was a finding of fact.

The case is therefore not appropriate for the grant

of special leave.

The application is refused.

MR BENNETT: If the Court pleases, I ask for costs.

MASON CJ: Yes. You do not oppose that, Mr Shaw?

MR SHAW:  I am afraid I do, Your Honour.

We do say there are special circumstances in

this case articulated at page 108 of the application

book. The Department recognized that this was a

test case by not seeking costs on the appeal before the Full Court and not seeking to disturb the order

for costs in our favour at first instance. We submit

that consistently with that attitude the Court, in

its discretion, would not grant costs in the present

application.

MASON CJ: Is that your attitude, Mr Bennett?

MR BENNETT:  My instructions are to seek costs, Your Honour.

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MASON CJ:  There will be no order for costs in the

circumstances of the case having regard to its

previous history.

MR SHAW: If the Court pleases.

AT 2.25 PM THE MATTER WAS ADJOURNED SINE DIE

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