Tung v State of Queensland
[2013] QCAT 251
| CITATION: | Tung v State of Queensland [2013] QCAT 251 |
| PARTIES: | Luke Tung (Complainant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL080/11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 31 October 2012, 13 and 14 May 2013 |
| DECISION OF: | P Roney QC, Member |
| DELIVERED ON: | 13 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Complaints are dismissed. |
| CATCHWORDS: | Employment as a male nurse – refusal of parental or maternity or other special fully paid leave to a father on the basis of sex – Distinction between direct and indirect discrimination in the work area – Test for treatment “on the basis of” an attribute –Reasonableness of a restriction of paid maternity leave to mothers to be not parents in general – Exemptions for equal opportunity and welfare measures – Implied repeal or exclusion of the Anti-Discrimination Act by certification of an industrial agreement and Departmental Directive – Definition of a Statutory Instrument. Anti-Discrimination Act Qld 1991 (s.5, 7, 8, 10, 11, 15, 104, 105) Haines v Leves(1987) 8 NSWLR 442 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13; Ministry of Defence v Jeremiah [1980] QB 87; Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; [1979] 1 All ER 474 |
APPEARANCES and REPRESENTATION (if any):
| COMPLAINANT: | Mr John Merrell of Counsel, instructed by Queensland Nurses’ Union |
| RESPONDENT: | Mr C J Murdoch of Counsel, instructed by Crown Law |
REASONS FOR DECISION
Introduction
This case is about whether it is discriminatory to not allow or indeed to refuse a male employee paid leave to allow him to care for a newborn child, when a female employee in the same position would receive that leave.
The Complainant is a male nurse who has been employed by Queensland Health, an agency of the State of Queensland, since approximately December 2006. He is married to Sara Guilford, who is not an employee of the State of Queensland but runs her own business as a hairdresser. She employs other staff in that business.
In July 2010 it was discovered that Ms Guilford was pregnant with their first child. In March 2011 she gave birth to that child. After the discovery of the pregnancy the Complainant sought to avail himself of what was, in broad terms in this proceeding, described as “paid maternity leave”. It is common ground that paid maternity leave was, subject to certain conditions, available to female employees of Queensland Health, including female nurses employed in the same occupation as the Complainant. The Complainant required leave because Ms Guilford was unable, for practical reasons, to take much time away from her hairdressing business and the decision had been made between them that the Complainant would be the primary caregiver for the infant for a period after its birth. The Complainant argues that when he was refused maternity leave on 15 December 2010, that it occurred in circumstances which amounted to both direct and indirect discrimination in contravention of the provisions of the Anti-Discrimination Act 1991 (“the Act”). There was other leave which was potentially available to someone who was in the circumstances of the Complainant, that is, other than where he was a pregnant female employee of Queensland Health. That was subject to the exercise of favourable discretion, and other conditions being met, potentially available to him to allow him a period of paid leave after the birth of his child in order to be able to care for it. This second kind of leave was described in the material and these reasons as “special leave”.
Months after the Complainant’s application for maternity leave was refused, on 9 March 2011 he sought to avail himself of the special leave option that might have been open to him. By letter dated 31 March 2011 that leave was also refused. It was refused ostensibly on the basis that it was said that were no extenuating circumstances which would warrant the grant of an approval of eight weeks of paid special leave, with pay, in the circumstances. The Complainant contends that this refusal also amounted to an act of both direct and indirect discrimination against him in the work area, and in contravention of section 15 of the Act.
The Complainant argues that the evidence establishes that the reason for the refusal of his application for maternity leave was because he was not female, or rather because he was male and that he was therefore treated less favourably than a female employee in circumstances that were the same or not materially different. By the time it came to making final submissions on this issue, Counsel for the Complainant conceded that at best this could only have been regarded as a technical breach, because it was accepted that on the face of the departmental policies which provided for such leave, it was available only to pregnant female employees and that therefore the consequence of his refusal of that leave, even if discriminatory did not lead to any compensable economic or other loss because he was not in fact as a matter of law in fact entitled to be given that leave. Therefore even if the refusal was on the basis that he was male, and not female, Queensland Health could not have approved it in any event, so nothing flowed from that putative act of direct discrimination. Insofar as direct discrimination is concerned, it is argued for Queensland Health that the fourteen week paid maternity leave provisions were only available to female employees who were pregnant. So, it is argued, not only was the decision to refuse that leave made because he did not fall within the parameters which allowed for such leave, it was in any event not discriminatory on the basis of sex.
Insofar as the decision of 15 December 2010 to refuse that leave was capable of amounting to indirect discrimination, the Respondent conceded in its final written submissions that that decision did impose a term in the Complainant’s employment that to be granted maternity leave he had to be female, and further that the Complainant was not able to comply with that term because of his sex. It was also conceded that a higher proportion of employees employed by the Respondent were able to comply with that term in the sense referenced in section 11(1)(b) of the Act. Notwithstanding these concessions, it was argued for Queensland Health that the term which was imposed was a reasonable one, within the meaning of section 11 of the Act and that it had shown it to be reasonable. Alternatively, it was argued, even if it was not shown to have been reasonable, it fell within the categories of exemptions allowed for in section 104 of the Act which are concerned with welfare measures, and section 105 of the Act which are concerned with equal opportunity measures. Finally, for the Respondent, it was contended that by operation of the provisions of section 28 of the Health Services Act 1991 which provided that industrial agreements and Directives were binding on an employee, the operation of the provisions of the Anti-Discrimination Act, insofar as eligibility for paid parental leave, or maternity leave were concerned, was impliedly repealed or excluded. It was also argued that the Anti-Discrimination Act provisions which might have operated to prohibit direct or indirect discrimination in relation to the grant of parental leave were impliedly repealed because terms which excluded an entitlement to such leave were specifically referenced in the certified agreement which applied to the parties, and that by reason of section 166 of the Industrial Relations Act (Qld) 1999, the fact they were so bound meant that insofar as the Respondent was giving effect to the certified agreement, it was not acting in breach of the Anti-Discrimination Act.
I will deal with each of these submissions in due course.
The alleged directly discriminatory acts in the refusal of maternity and special leave
There was little dispute in the evidence as to the circumstances by which the Complainant originally made application for maternity leave, as to the circumstances which he and his wife found themselves, and as to the reasons for why that application was made. The dispute was about why it was refused.
After having been employed by Queensland Health in or about December 2006, the Complainant thereafter came to be employed as a registered nurse in the Department of Intensive Care Medicine, at the Royal Brisbane and Women’s Hospital. It is accepted that he was bound by the terms of the Nurses & Midwives (Qld) HL Certified Agreement of 2009 (“the certified agreement”). It is common ground also and I find that in July 2010 he and his wife Sara became aware of her pregnancy and after discussion between them, they decided that because she was self-employed she could only afford to take four weeks off work after the birth of their child. This was later revised to six weeks after the birth. As a self employed person she had no access to paid maternity leave from any employer. They decided that he would take as much time off as possible and become the primary caregiver. There is no challenge to the reasonableness of this decision.
In furtherance of that decision, in December 2010 he decided that instead of applying to be allowed to take his accrued annual leave (effectively his holiday leave) of 10 weeks, as well as an allowance of 1 week spousal leave at half pay, he would apply for 14 weeks fully paid maternity leave. He understood there to have been a policy in place that allowed for that leave.
As at the date of that application there was a policy called the C26 Parental Leave Human Resource Policy. The copy exhibited to the evidence was described as having an effective date from June 2009. The stated purpose of this policy was to outline parental leave entitlements and arrangements, including “maternity leave...spousal leave...pre-natal/pre-adoption leave and adoption leave”. Clause 7.3 of that parental leave policy described eligibility not by reference to the sex of any applicant, but rather to an employee’s recognised service or qualifying service periods. Clause 8 of the policy made clear that female employees were entitled to leave up until the first birthday of the child, and that that leave was permitted for “one unbroken period at any time after she becomes pregnant”. Clause 8.2 provided for fourteen weeks paid maternity leave. In clause 8.2 there is no specific reference to the entitled employee applicant being female. Instead, clause 8.2 refers to an entitlement to “an eligible employee...whose expected date of birth has been confirmed in writing by a medical practitioner”. Presumably it meant to refer to the expected date of the child’s birth. On one view of it both parents would have been capable of having an “expected date” and could have met the qualification requiring medical practitioner confirmation. This parental leave policy had been incorporated as a term of the certified agreement (EB7) of 1 April 2009 which had been approved by the Queensland Industrial Relations Commission pursuant to Chapter 6 of the Industrial Relations Act. In clauses 8.4 and 8.5 of the certified agreement, the agreement makes clear by its exclusion of any reference to entitlements of a male employee that both unpaid and paid maternity leave is available only to females. Neither the policy nor the certified agreement specifically references the fact that the leave was only available to the expectant mother. Despite the concession by Counsel for the Complainant that this policy did not in fact allow for an award of parental or maternity leave on a paid basis to have been made to the Complainant, that policy leaves much to be desired in terms of its clarity on the issue of whether only women might apply for that leave, and furthermore whether it is only a woman who is pregnant, as distinct from a woman who might for example be the partner or a mother to be. I accept that the evident purpose of this policy, whatever its language might be capable of permitting, was intended to provide paid maternity leave only to an employee who had been confirmed by a medical practitioner has being pregnant, with a confirmation of the expected date of birth of the child by that mother.
The relevant certified agreement (EB7) incorporated as a benefit under the agreement certain employment policies, and which by schedule 5 to that agreement included the human resource policy (C26) just referenced. Clause 36 of the agreement had a “no further claim” provision. It provided that the agreement was “in full and final settlement of all parties’ claims for its duration”. And further it provided that “unless inconsistent with the terms of this agreement, the entitlement of nurses and midwives covered by this agreement is contained in awards, agreements, human resources policies, and Directives or Determinations made under the Health Services Act 1991 effective at the date of this agreement was made (sic) will not be reduced for the life of this agreement”.
Section 166 of the Industrial Relations Act 1999 as it then wasprovided as follows:
166 Persons bound
(1) A certified agreement binds:
(a) the employer:
(i)for an agreement made by an organisation of employers for a project for whom the agreement was made; or
(ii) who made the agreement; and
(b) all persons who are, while the agreement operates, relevant employees; and
(c)if the agreement is made with 1 or more employee organizations the 1 or more organisations.
(1A) Subsection (1) applies even though an employer or employee organisation has not signed the agreement if the commission is satisfied, under section 156(1A) in the particular circumstances, that the agreement does not need to be signed by or for all the parties.
(2)For a certified agreement made between the employees and employer, the commission must decide that the agreement also binds an employee organisation if:
(a)before the agreement is certified, the organisation gives the commission and employer notice that it wants to be bound by the agreement; and
(b) the organisation satisfies the commission that:
(i) the organisation has at least 1 member:
(A) whose employment will be subject to the agreement; and
(B) who asked the organisation to give the notice; and
(ii) the organization:
(A)is bound by an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or
(B)if there is no award or agreement that binds, or would bind, the employer is entitled to represent the industrial interests of the relevant employees.
The final document to which reference needs be made in the context of discussion about maternal or parental leave is a Directive issued by the Attorney-General and Minister for Industrial Relations, No. 26 of 2010 with the title “Paid Parental Leave”. It commenced to operate effective 14 October 2010, so that it was in force at the time the Complainant applied for leave in December 2010 and January 2011. The expression “parental leave” is defined in broad terms in that Directive as meaning “maternity, adoption, surrogacy or spousal leave”.
The terms in the Directive, clause 3.1 , which provides for maternity leave, make no relevant reference to the employee who had eligibility because of their employment with the agency and she being an expectant mother. It adopts the language of an entitlement of an eligible employee “whose expected date of confinement has been confirmed in writing by a medical practitioner”. “Confinement” is defined as “the birth of a child/children, or the ending of the pregnancy in other circumstances, that occurs no earlier than twenty weeks before the expected date of birth”.
But in clause 3.1.3 of the Directive, which refers to “a further period of unpaid maternity leave”, there is reference to the employee confirming “her” intention of returning to work. Clause 3.2.1 provides for “spousal leave” and appears to draw the distinction between an employee’s “spouse’s expected date of confinement”, apparently intending to draw a distinction between an employee who is a person with an expected date of confinement of that person, or that of an eligible employee’s spouse’s expected date of confinement. In each case, although open to be construed differently, it is common ground between the parties here that maternity leave applied only to female employees who were expectant mothers.
It follows that the Complainant had no entitlement to maternity leave under either the Human Resource Policy C26, the certified agreement or the Paid Parental Leave Directive, and those were the only legally enforceable provisions which applied to the terms of his employment which might have provided a mechanism for paid parental leave so that he could be the primary caregiver to the child after its birth.
Whilst on the topic of relevant policies, it is convenient to reference another applicable policy, the application of which lies at the heart of the second complaint of discriminatory conduct. That is the Special Leave Human Resources Policy document C7, effective December 2009. The policy was not specifically referenced in schedule 5 to the certified agreement, but it is common ground that it applied to the Complainant’s terms of service. The stated purpose of the special leave policy was to “outline employee entitlements and expenses relating to special leave”. It allowed for the development of guidelines which were not inconsistent with the policy and outlined a number of specified circumstances in which employees were entitled to apply for “special leave”, in many cases on full pay. These included to allow employees to donate blood, to observe days of cultural, ceremonial or religious significance, to provide assistance in a State of Emergency or national disaster, to allow for persons to sit as candidates for election in State or Local Government elections. The categories include participation in the Army Reserve forces, and to allow participation in State or National sporting teams, or umpiring of competition involving those teams. Clause 16 provided for a catch-all provision which authorised leave, without pay, “in other cases”. The grant of that leave is discretionary.
There was provision in section 72 of the Financial Accountability Act 2009 for the discretionary exercise of a power to grant an ex-gratia or “special” payment, and which in its application meant that in some circumstances an employee who was granted leave in one of the other cases not specifically the subject of leave with pay under the HR policy C7, to in effect receive that leave with pay constituted by the grant of a special payment of the equivalent of what that person’s salary would have been. Such a payment required the approval of the Governor in Council. By the time final arguments were directed to the issue of how special leave could have been given in this case on full salary for the period requested, the parties had accepted that it was by this ex-gratia payment method that it might have been facilitated.
The Complainant alleges that the refusal of maternity leave was on the basis of the attribute of sex. Section 10 of the Act relevantly provides that direct discrimination on the basis of an attribute happens if the person treats or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Section 15 of the Act provides as follows:
15 Discrimination in work area
(1) A person must not discriminate:
(a) in any variation of the terms of work; or
(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c) in dismissing a worker; or
(d)by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e) in developing the scope or range of such a program; or
(f) by treating a worker unfavourably in any way in connection with work.
(2)In this section dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
Section 10(1) of the Act essentially that requires in this case that the Complainant establish that the Respondent has treated him or proposed to treat him on the basis of the attribute “less favourably than another person without the attribute is, or would be treated in circumstances that are the same or not materially different”.
The question that must be answered affirmatively if such a claim is to succeed is whether particular conduct has been shown to be “on the basis of an attribute” within the meaning of sections 8 and 10 of the Act.
Section 8 of the Act provides:
8 Meaning of discrimination on the basis of an attribute
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; or
(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c:
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.
Section 11(3) of the Act provides that “the person’s motive for discriminating is irrelevant”.
Example
—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
What is the meaning of treatment “on the basis of” a protected attribute- the causal element
The precise operation of 10(1) of the Act which requires in that the Complainant establish that the Respondent has treated him or proposed to treat him “on the basis of” the attribute, when read with Section 11(3), can give rise to difficulties.
In Haines v Leves(1987) 8 NSWLR 442 at 471, Kirby P said in relation to a similar phrase “on the ground of”:
The words “less favourably” and “on the ground of”, permit wide scope to the Tribunal in applying its judgment to the facts proved in each case. Both involve imprecise phrases which necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in an hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. As was pointed out in that case, a “detriment” concept of discrimination has hitherto been adopted: cf Ministry of Defence v Jeremiah [1980] QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; [1979] 1 All ER 474 (Eng CA).
The Queensland Court of Appeal in JM v QFG and GK [1998] QCA 228 gave careful consideration to the approach to taken to ascertaining whether something occurred on “the basis” of an attribute. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the Court was to carefully identify precisely what was the reason for the refusal of the treatment. It was held on an analysis of the evidence that if it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, which led to her being refused the relevant treatment.
Thomas JA said, in that case “...a proper reading of the doctor’s evidence demonstrates that there was no such discrimination on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was. The evidence showed that doctors providing services of this kind (including the respondent doctor) endeavoured to act upon reports and statements made by various bodies including the National Bioethics Committee. That Committee had published the view that “the most commonly accepted definition [of infertility] within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception”. That definition on any reasonable view seems to contemplate failure to conceive after intercourse between members of opposite sexes before infertility is established.
And later Thomas JA said “It is true that as the result of some leading and argumentative cross-examination by the President the doctor made statements, which taken in isolation, admitted the lesbian relationship as the basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian relationship” fallacy mentioned above, and also, it would seem, by the assumption in the questioning that the failure of a member of a lesbian couple to qualify was the result of her lesbian sexual activity rather than the result of her sexual inactivity with a member of the opposite sex. This is addressed in (c) below...(c) The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.
Davies JA said what “the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent’s evidence the reason why she was refused treatment was that she did not comply with the second respondent’s definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others.”
The High Court in Australian Iron and Steel Pty Ltd v Banovic[1] was concerned allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
“... in the ascertainment of the true basis of an Act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that Act or decision. In certain situations that common factor may well be seen to be the true basis of the Act or the decision. And that may also be the case were some factors identified as common to a specific proportion of those adversely affected”.
“Even if it could be said that a factor common to all or a significant proportion of those who are adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... there is no finding to that effect made by the Tribunal”.
[1] (1989-1990) 168 CLR 165 at 176-7.
Hence the Court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The Court went on to consider the alternative case of whether it was a case of indirect discrimination.
Shortly after Banovic was decided the High Court revisited the issue in Waters and others v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49.
The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate? “ at Pages 520-521 as follows:
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to s 1(1)(a) of the Sex Discrimination Act (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability.”
His Lordship noted (at 1194) that, if intention or motive were relevant: “it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys” (emphasis added).
(See also the discussion by Deane and Gaudron JJ in Banovic, at CLR 176–7.)
McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said at 103 ALR 513 at 552-553:
“The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).
With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within s 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infants school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to s 17(5). At the relevant time, however, the Anti-Discrimination Act had no such equivalent.
The effect of the introductory words of s 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of s 17(1) to constitute treating “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”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in s 17(1), then discrimination is made out and s 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where s 17(1) is inapplicable. The hypothesis upon which s 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.
How then can a case of indirect discrimination come within s 17(5) and yet not come within s 17(1)? The answer is that in s 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under s 17(5) although he or she was not actuated in any way by status or private life.
In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133 [2003] HCA 62 the High Court considered these authorities in the context of a claim of disability discrimination.
In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student "on the ground of" the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, "because of" the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
Chief Justice Gleeson said that “In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex”.
After referring to the judgements referred to above from Waters v Public Transport Corporation, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said at [159]-[160]
“However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind”.After referring to later authority he said:
“[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act”.
The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration here as the “second issue” in the appeal, identified as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that "in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability". They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the "true basis" for the act or decision.
The question was posed in these terms by reference to what was required to show direct discrimination:
[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
[225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:· (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability?
· (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment”.
Hence those judges held that the 'circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator and as to the causation issue are informative. As to the former they said:
[130] Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.
In relation to the causation question McHugh and Kirby JJ said;
[148] The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.
[149] A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said:
There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy.
[150] By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.
[151] In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said:
[O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?'
[152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."
[153] But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said:
It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex.
(original emphasis)
[154] Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said:
[I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator …
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.
[155] In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said:
For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
[156] The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator.
[157] These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
[158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
[159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:
The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.
However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.
[161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said:
The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.
[162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex.
[163] In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:
[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.
[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.
[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.
[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:
[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.
[168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.
[169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.
[170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan.
[109]Referring to the Statutory Instruments Act 1992 section 7(3) provides, within the definition of the expression “statutory instrument” that an instrument must be one of a number of specified types. They do not include Directives, or for that matter terms which include Directives which are part of an award or industrial agreement nor do they refer to such Directives as are said to be binding because of statutory operation of the likes of section 28 of the Health Services Act.
[110]Section 9 of the Statutory Instruments Act 1992 defines what is subordinate legislation. It includes “any statutory instrument (including an order in Counsel or proclamation) that is declared to be subordinate legislation by an Act or Regulation made under this Act”.
[111]As Mr Merrell was at pains to point out in his careful submission on this issue, read with section 51 of the Public Service Act 2008, the relevant policies or Directives were not instruments nor were they legislative in character, nor did they constitute subordinate legislation. In this context the issue of the implied repeal of legislative provisions by a delegated legislation is discussed by the authors of Statutory Interpretation in Australia, Pearce and Geddes in the current (seventh) edition of that work, at paragraph 7.1(7). The authors state:
“While not, strictly speaking, a relevant interpretation, it should be borne in mind that where an Act contains provisions that are inconsistent with an item of delegated legislation, the later will be rendered invalid, thereby, in effect being repealed...”
[112]This statement was cited in O’Connell v Nixon[9] . On the other hand, delegated legislation cannot impliedly repeal an earlier Act except where expressly so authorised; Hall v Managhan[10]; TN v Walford[11]. It follows, that the fact that section 28 of the Health Services Act provides that a relevant Directive and the Industrial Agreement comprised by the certified agreement ‘governed’ both the Complainant and Respondent’s arrangements of employment does not mean that there is any implied repeal or inconsistency with the provisions of the Anti-Discrimination Act and they continue to apply with full force.
[9] 2007) 16 VR 440 at 446.
[10] [1919] St R QD 217.
[11] (1998) 126 NTR 8 at 16.
[113]As to the argument that the certified agreement operates in some away to impliedly repeal operative provisions of the Anti-Discrimination Act, it is clear that such an agreement, whilst binding both the employer and the employees caught by it by operation of section 166 of the Industrial Relations Act 1999 as it then was, it does not purport to give anything in the certified agreement statutory effect.
[114]Support for this can be found in the decision the President in the Industrial Court of Queensland in Australian Sugar Milling Association & ors[12]. There the President specifically rejected the proposition that a certified agreement may properly be characterised as a statutory instrument. He said that “it is true that in the absence of certification a certified agreement has no effect in law. However, fundamentally, a certified agreement is made by the parties. It is not legitimate to argue that in certifying an agreement, the Commission unilaterally affects the rights of the parties to the agreement”. He also made comment to the effect that in construing such an agreement, one must take into account the circumstances in which it was made and the relationship between the parties at the time at which it was made.
[12] (2002) 169 QGIG 25.
[115]Whilst it was the case under the Industrial Relations Act 1999, section 156 required that the Industrial Relations Commission in certifying the agreement to refuse to certify an agreement if it “considered” a provision of the agreement to be discriminatory, it does not follow that a relevant certified agreement, in its application of it in a particular application may not actually occur in a discriminatory fashion, or that indeed provisions of the Anti-Discrimination Act might not be offended by application of such an agreement.
[116]The Respondent’s argument that the no extra claims provision in the certified agreement, clause 4.1, operates to impliedly repeal the Anti-Discrimination Act provisions is without substance. That is because for the reasons I have also expressed, the contents of the certified agreement, (no part of which purports to expressly or otherwise repeal or override any provisions of the Anti-Discrimination Act), is not one, by which its express terms makes the Complainant a party. Whilst clause 4.1 of that agreement expressly provides that it is “binding upon the parties and nurses and midwives covered by the agreement, the parties to the agreement did not include the Complainant”. The parties were listed in clause 4.1. Hence the reference in clause 36 of the certified agreement to the agreement being “in full and final settlement of all parties’ claims” cannot upon its ordinary language mean that conduct based upon a provision, or the application of a provision in such an agreement which would be otherwise in contravention of section 15 of the Anti-Discrimination Act is excused by virtue of the fact that there is an agreement which, whilst binding upon the Complainant, is one to which he is not specifically a party.
[117]It follows, for the reasons that I have provided, that the complaints ought be dismissed and I so order. This is not a case, having regard to the relevant law as the limited circumstances in which costs may be awarded in this jurisdiction, that there ought be orders for costs in favour of either party.
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