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HREOC Report No. 30

Report of an inquiry into a complaint by Mr William Mayne of age discrimination
in the Australian Defence Force

HREOC Report No. 30

(c) Commonwealth of Australia 2005

Copying is permissible with acknowledgement of the authorship of the Human Rights and Equal Opportunity Commission, Sydney, March 2005

The Hon Philip Ruddock MP

Attorney-General House of Representatives

Parliament
House

CANBERRA ACT 2600

Dear Attorney

Pursuant to s 31(b)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I attach a report of my inquiry into a complaint of discrimination in employment by Mr William Mayne against the Commonwealth of Australia, Australian Defence Force - Royal Australian Air Force. I have found that the act complained of constitutes discrimination in employment on the basis of age.

Yours sincerely,

John von Doussa QC

President

March 2005

Table of Contents

1. INTRODUCTION

1.1 The Commission's jurisdiction

This report to the Attorney-General concerns my inquiry into a complaint made to the Human Rights and Equal Opportunity Commission ('the Commission') by Mr William Mayne on 28 May 2002 of discrimination in employment on the basis of age. The complaint is made against the Commonwealth of Australia, Australian Defence Force - Royal Australian Air Force under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act').

The complaint was made pursuant to s 32(1)(b) of the HREOC Act, which provides for a complaint to be made in writing to the Commission alleging that an act or practice constitutes discrimination (as defined in s 3 of the HREOC Act). In 1989 the Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) declared a number of additional grounds of discrimination for the purposes of the HREOC Act with effect from 1 January 1990. The subject of this report, age discrimination, is one of those grounds.

The jurisdiction of the Commission in relation to the investigation and conciliation of complaints of discrimination and in relation to reporting to the Minister on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix 1 to this report.

1.2 Outline of complaint

The complainant enlisted in the Royal Australian Air Force ('RAAF') in January 1966 and was promoted to the rank of Group Captain in January 1991. In early 2002, the complainant learnt that he had not received a posting to the position of Command at the Joint Ammunition Logistics unit for which he possessed the necessary qualifications and experience. The complainant was 53 years of age at the time.

The complainant alleged that he was eliminated from consideration for the Command position in the course of the selection process because of his proximity to the compulsory retirement age without any separate consideration of the merits of his qualifications and experience against the qualifications and experience of other candidates. The Air Force Regulations provided that, in the absence of an extension, the compulsory retirement age for the complainant was 55 years. The complainant also claimed that no consideration was given to him getting an extension of service beyond 55 years.

1.3 Findings and recommendations

On 4 February 2005, the Commission issued a Notice of my findings and recommendations in relation to the complaint under s 35(2) of the HREOC Act.

I found that the act complained of, namely the act of excluding the complainant from consideration in the selection process without any separate consideration of the merits of his qualifications and experience against the qualifications and experience of other candidates, constituted discrimination in employment on the basis of age. I recommended that the Chief of Air Force provide a written apology to the complainant.

1.4 Actions taken by the respondent as a result of the findings and recommendations made on 4 February 2005

Under s 35(2)(e) of the HREOC Act, the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of my findings and recommendations.

By letter dated 28 February 2005 the Chief of the Defence Force stated as follows:

  1. I refer to your letter of 4 February 2005 providing the Notice of the findings of the President in relation to the above complaint. The Notice includes a recommendation the Chief of Air Force (CAF) provide a written apology to CPCAPT Mayne.
  2. ...
  3. The President's view has been considered, however CAF declines to provide an apology to GPCAPT Mayne and Defence does not intend to take any other action as a result of the findings.

I am now in a position to report to the Attorney-General as required by s 31(b)(ii) of the HREOC Act.

2. THE COMPLAINT

2.1 The nature of the complaint

The complainant was born on 12 January 1949. He enlisted in the RAAF on 26 January 1966 and was promoted to the rank of Group Captain in January 1991. He has since retired from the RAAF in January 2004 on reaching the compulsory retirement age of 55 years.

The complainant states that shortly before the date of his complaint he learnt that he had not received a posting for which he possessed the necessary qualifications and experience, namely a posting to the position of Command at the Joint Ammunition Logistics unit. He states that he was 53 years of age at the time. After learning that another officer had been appointed to the position, he enquired whether he had been considered for the position. He was advised by the Directorate of Personnel Officers - Air Force ('DPO-AF') in April 2002 that:

...due to your proximity to CRA (compulsory retirement age) you would be unable to complete the required Command tenure of the JAL (Joint Ammunition Logistics) position until at least Dec 04....So, in short, you were considered but due to the above was not seen the most suitable choice.

The complainant states that that advice makes no reference to his performance and:

...really says that the only reason I was not selected for the position was that I could not serve in the position for two years before the compulsory retiring age. Hence, I believe I have suffered discrimination due to my age.

The complainant says that he is not aware of any regulation or rule that stipulates that a person must be able to stay in a position for two years. He says that even where an officer is promoted and posted to a position, that officer only undertakes to serve for a 12 month period, and the officer can choose to resign after 12 months. He also claims that no consideration was given to him getting an extension of service beyond 55 years.

2.2 Outline of response

On 26 August 2002 the Commission sought a response from the respondent and on 26 November 2002 the Commission received a response dated 22 November 2002.

The respondent denies that the complainant was discriminated against on the basis of his age. The respondent states that it is not disputed that the complainant possessed the qualifications and experience necessary for the Command position. However, the respondent states that there were other officers who also possessed the necessary qualifications and experience for the position:

Therefore a selection process was followed in order to choose a commander. In such cases, good personnel management practice aims to reduce the disruption in a unit by limiting the turnaround of commanders in a unit to serving a minimum of two years in their post. Where it was apparent that GPCAPT Mayne could not meet one of the basic criteria for the position and there were other officers who could, then the choice was made simply to choose the most appropriate person who could meet the requirements of the position.

The respondent states that there is no specific requirement that a person serve in a position for a certain time. However, when planning its manning operations, RAAF allows for a minimum period of time in which Commanders go through a learning period before becoming fully effective in the generation of military capability and in the management of their people. If the minimum period is too short, the management of the unit and its military capability are also adversely affected. The respondent considers that two years in a post is the minimum period which should be allowed.

The respondent continues:

His age was not an inherent factor in him not being considered for the position, but the fact that he was facing compulsory retirement in January 2004 was a factor. Section 27 of the Defence Force Act 1903 prescribes that a person must be retired from the service on reaching the prescribed age (being 55 years in this case). The member can apply for a waiver from the application of this section and receive an extension for up to two years but only where there is real benefit to the service in retaining the member. Regulation 88 of the Air Force Regulations sets out the compulsory retiring ages for each rank.

Therefore RAAF was obliged to consider that the complainant would face compulsory retirement when planning to fill the commander's position. RAAF took the view that it was unreasonable to expect that alternative arrangements should be made to accommodate GPCAPT Mayne's particular difficulty and to do so would place an unnecessary hardship on the RAAF in its personnel planning process.

The respondent also advises that Air Force Regulation 88(1D)(2) states that, in special cases, when it is in the interest of the Service to do so, the Minister may, by instrument in writing, extend the age of retirement for officers. It is not specified in the regulation, but the respondent states that it is implicit that the officer needs to volunteer for the extension of service. The respondent states that the complainant did not formally indicate a desire to extend his retirement age.

The respondent states that if there has been any discrimination on the basis of age, it is because the RAAF was obliged to consider the effect of the statutory limitation on the complainant's future service in the new position. The respondent submits that this limitation applies to every member and the RAAF, like any organisation, is reasonably entitled to make such arrangements. The respondent states that there will be occasions when an officer chooses to resign before the end of the period and while it may be possible to reject such a resignation, generally that step is not taken. However, the respondent submits that the situation is different where the RAAF knows at the time of the appointment that such a basic requirement cannot be met.

2.3 Complainant's reply to the respondent's response

In reply, the complainant states that he has never disputed that there were other officers possessing the qualifications and experience for the Commander position. His complaint is that he was eliminated from consideration for the position because of his proximity to the compulsory retirement age. He maintains that the only policy he was aware of was the requirement to agree to serve at least 12 months in the new rank by an officer accepting a promotion, and hence that selection criteria for promotion included the requirement that the officer must have at least 12 months to serve before compulsory retirement age.

The complainant agreed that there would be a learning period on taking up a new promotion, but given his background that period in his case could be expected to be short. Whilst saying that he understands the point made by the respondent regarding planning, he questioned why the two year figure is not published, and why the 'return of service' for promotion is only one year if two years of service in a position is critical.

The complainant disagreed that it is implicit that an officer seeking a waiver of the compulsory retirement age needs to volunteer for the extension of service. The respondent could approach the officer when an extension was seen to be in the interests of the Service.

3. RELEVANT LEGAL FRAMEWORK

Sections 31(b) and 8(6) of the HREOC Act confer on me the function of inquiring into any act or practice that may constitute discrimination.

For the purposes of Part II - Division 4 of the HREOC Act which deals with discrimination in employment or occupation under International Labour Organisation Convention Concerning Discrimination in Respect of Employment and Occupation ('ILO 111'), discrimination is defined in s 3(1) of the HREOC Act as follows:

  1. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

  2. any other distinction, exclusion or preference that:

    1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute

      discrimination for the purposes of this Act;

    but does not include any distinction, exclusion or preference:

  3. in respect of a particular job based on the inherent requirements of the job; or
  4. in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

The Human Rights and Equal Opportunity Commission Regulations extended the definition of discrimination in the HREOC Act with effect from 1 January 1990 to include additional grounds of discrimination, including discrimination on the basis of age.

Section 31(b)(ii) of the HREOC Act provides that where the Commission is of the opinion that the act or practice constitutes discrimination, and has endeavoured without success to reach a settlement, it will report to the Minister in relation to the inquiry.

4. CONCILIATION

In accordance with s 31(b) of the HREOC Act the Commission attempted to conciliate this complaint. Attempts at conciliation were unsuccessful.

5. PRELIMINARY ASSESSMENT LEADING TO A TENTATIVE VIEW

In accordance with the usual practice in reporting on an inquiry into a complaint made under the HREOC Act that an act or practice constitutes discrimination, I made a preliminary assessment of the available information. I formed a tentative view that an act or practice of the respondent constituted discrimination on the basis of age. My preliminary assessment was as follows.

In considering whether an act or practice complained of constitutes discrimination, s 3(1) of the HREOC Act poses, as it applies to discrimination on the basis of age, four main questions:

  1. whether there was an act or practice within the meaning of s 3(1) of the HREOC Act;
  2. whether that act or practice involved a distinction, exclusion or preference that was made on the basis of the complainant's age;
  3. whether the distinction, exclusion or preference had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  4. whether that distinction, exclusion, or preference was based on the inherent requirements of the job.

Before turning to consider these questions, in my opinion it was critical to identify the act or practice about which the complaint was made. Unfortunately the complaint lodged by the complainant on 31 May 2002 merely recites the facts which give rise to the complainant's belief that he had been discriminated against, and does not seek to identify in precise terms an act or practice which is alleged to be discriminatory. The respondent's response appears to be formulated on the assumption that the act or practice which was impugned was the failure to appoint the complainant to the Command position. However, as the complainant's reply to the respondent's response makes clear, the relevant act or practice was not the failure to appoint the complainant to that position, but the decision to eliminate him from consideration in the course of the selection process because of his proximity to the compulsory retirement age.

As I understood the complaint, it was not that the complainant was not the ultimately successful candidate, but that in the course of the selection process he was eliminated because of his age without any separate consideration of the merits of his qualifications and experience against the qualifications and experience of other candidates.

The act or practice in respect of which the above questions must be addressed was therefore the act or practice of eliminating the complainant in the selection process because of his proximity to the compulsory retirement age which, in the absence of an extension, would apply under Regulation 88 of the Air Force Regulations.

5.1 Whether there was an act or practice within the meaning of s 3(1) of the HREOC Act

The act or practice alleged was the administrative decision to exclude the complainant from consideration or further consideration in the selection process without any separate consideration of the merits of his qualifications and experience against the qualifications and experience of other candidates. I considered that decision was an 'act' within the meaning of the HREOC Act.

5.2 Whether that act involved a distinction, exclusion or preference on the basis of the complainant's age

The next question was whether the decision to eliminate the complainant from consideration or further consideration for the Command position was 'on the basis of' his age.

It was my opinion that the information provided by the respondent showed that the complainant's age was a consideration when the respondent decided to eliminate the complainant from consideration or further consideration in the selection process. The e-mail received by the complainant from DPO-AF said as much. The respondent in its response to the complaint advised that two years in a post, for good management reasons, is considered the minimum period that is allowed for by RAAF personnel. The respondent stated that the complainant was not considered for the Command position because he was facing compulsory retirement in January 2004 and would not be able to serve for a period of two years. The fact that Mr Mayne was 53 years of age at the time of the selection process was a factor in the DPO-AF's decision to eliminate the complainant from consideration or further consideration in the selection process for the Command position. The respondent stated that apart from this, the complainant possessed the qualifications and experience necessary for the job.

I considered that under s 3(1)(b) of the HREOC Act a finding that a distinction, exclusion or preference based on a proscribed characteristic (in this instance, age) occurred can be made even though that characteristic may not have been the sole or dominant reason. This construction of the HREOC Act was adopted by Commissioner Sidoti in the HREOC Report Number 3,1 October 1997, at page 5 and by me in the HREOC Report Number 26,2 February 2004 at page 14.

On the information before me, I was of the view that the decision to eliminate the complainant from consideration for the Command position in March 2002 was based on his age and the decision constituted a distinction, exclusion or preference based on that ground.

5.3 Whether the distinction, exclusion or preference had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation

For an act or practice to be discriminatory, the HREOC Act requires the complainant to show that the distinction, exclusion or preference has had the effect of nullifying or impairing the equality of opportunity or treatment in employment or occupation.

When the complainant was eliminated from consideration or further consideration in the selection process for the Command position on the basis of his age, he was eliminated from the pool of people under consideration for appointment to the Command position. It was not in dispute that the complainant possessed the necessary qualifications and experience for the Command position. However, as there were other officers who also possessed the necessary qualifications and experience for the position and were less than 53 years of age, the complainant's suitability for the position was not further considered by the respondent. Furthermore, there was no consideration of the merits of his qualifications and experience against those of other officers.

I was of the view that the complainant's equality of opportunity was impaired because despite his suitability for the position, he was removed from the pool of potential candidates. Other suitable candidates who were younger than 53 years of age were not eliminated from the selection process at this stage and went on to have their relative merits for the position more fully considered.

I considered that the appropriate way for the respondent to have dealt with this matter was not to eliminate the complainant from the selection process on the basis of his age, as the 55 year age limit was not an absolute one. The complainant should have been fully considered as a candidate for the Command position along with other officers deemed to have the appropriate experience and qualifications.

If, following a relative assessment of the merits of the candidates, the complainant was found to be the best person for the Command position, it would then have been appropriate for the respondent to advise the Minister on the appropriateness of extending the retirement age which would apply to the complainant. If the complainant was determined by the selection process to be the best suited person for the Command position, the Minister might well have considered it was in the interests of the Service to extend the complainant's retirement age. In my opinion there is nothing in the text of Air Force Regulation 88 that conditions the exercise of the Minister's power on a pre-existing application from the relevant officer for the power to be exercised. This would appear to be just the sort of situation where it would be envisaged that the discretion to grant an extension of service could be exercised. However, the respondent did not turn its mind to these considerations as the complainant was eliminated from the full selection process.

Alternatively, it would have been open to the respondent to depart from the standard management requirement that an officer serve in a post of two years, and appoint the complainant to the Command position for the period of approximately 13 months until he attained the age of 55 years.

I considered HREOC Report Number 263 'Report on an inquiry into a complaint by Mr Kenneth Douglas of age discrimination in the Australian Defence Force'. In that matter I found that because of his age, Mr Douglas was denied the opportunity of appearing before the Officer Selection Board ('the OSB') contrary to an established procedure that provided 'age waivers will be considered...subsequent to an [officer candidate's] appearance before an OSB, providing the [officer candidate] has been assessed as competitive for the positions available.' I found that the refusal to allow the complainant to appear before the OSB on the basis of his age constituted a failure to afford him equality of opportunity in employment. I considered that the circumstances surrounding Mr Douglas' complaint were similar to this complaint. In the present complaint, the complainant was also not given the opportunity to be fully considered for the position. The complainant in this matter was eliminated from the pool of potential candidates for the Command position on the basis of his age. Under these circumstances, I considered that the complainant was not afforded equality of opportunity.

For these reasons, I was of the view that this constituted an impairment of the complainant's equality of opportunity in employment.

5.4 Whether the distinction, exclusion or preference was based on the inherent requirements of the position

I then turned to the final question. Not all distinctions, exclusions or preferences are discriminatory within the meaning of the HREOC Act. Under paragraph (c) of the definition of discrimination in s 3 of the HREOC Act, a respondent does not discriminate on the basis of age, if the distinction, exclusion or preference is based on the inherent requirements of the job.

On my view of the information before me, I did not consider that this final question arose in the circumstances of this case. The alleged act of discrimination raised in the complaint relates to the actions of the respondent during the selection process for the Command position. It cannot be the case that the imposition of an age qualification as a prerequisite to full consideration of the merits of the complainant for the position could be an inherent requirement of the 'job'. Such a qualification would apply not to the 'job' but the process of selection.

If, as the result of a full consideration of the merits of the complainant for the Command position, the complainant had been assessed to be the preferred candidate, but the Minister then refused to extend the prima facie compulsory retirement age for management reasons of the kind described by the respondent in its response, then issues about inherent requirements in the efficient management of the service similar to those discussed in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (2000) 181 ALR 726 could have arisen. However, it was unnecessary to explore the implications of those kinds of management considerations in this matter, as the complainant was excluded at an earlier stage of the selection process.

For the reasons set out above, I formed the tentative view that the act complained of constituted an impairment of the complainant's equality of opportunity in employment, and that there had been discrimination on the basis of his age.

6. THE s 27 NOTICE

In accordance with ss 27 and 33(d) of the HREOC Act, notice of my tentative view was given to the respondent ('s 27 notice') and the respondent was invited to make further submissions orally or in writing or both. As a matter of procedural fairness, the complainant was also provided with a copy of the s 27 notice and invited to participate in this process.

By letter dated 9 November 2004, the complainant indicated that he did not wish to make any further submissions. The complainant did seek to correct a factual error that appeared in my tentative view in relation to the date on which the Command position was filled and accordingly, the length of time he could have served in the Command position. This correction has been reflected in section 5.3 above.

By letter dated 29 November 2004, the respondent stated:

  1. As a result of your review of this complaint, you have formed the tentative view that the act or practice complained of constitutes discrimination as defined by the HREOCA. You have subsequently provided us with the opportunity to make submissions in relation to the report.
  2. Defence has no submissions to make in relation to your report. I will be recommending that the Deputy Chief of the Air Force provide a written apology to Group Captain Mayne and this has been drafted for his signature.

By letter dated 23 December 2004, the respondent stated:

...While the President's tentative view, sent to Defence under cover of your letter SG/2012440/FC, has been considered, CAF has declined to provide an apology to GPCAPT Mayne.

The Australian Defence Force needs to develop its future senior leaders through a broad range of demanding appointments, especially the limited number of command appointments. This 'return on investment' is an important consideration when selecting the best officers for these positions, and in this context the Compulsory Retirement Age must be taken into account. That said, the primary reason why GPCAPT Mayne was not selected to take up a command appointment in 2003 was that, on merit, he was not the best candidate. The decision not to appoint GPCAPT Mayne was a decision that was open to the RAAF to make.

7. FINDINGS

I reviewed this inquiry in light of the letters of 29 November 2004 and 23 December 2004 from the respondent, and considered all the information now available afresh.

Paragraph 2 of the letter of 23 December 2004 is inconsistent with the information given in the response to the complaint dated 22 November 2002, and is not supported by any evidentiary material. The formal response to the complaint was to the effect that the complainant was not fully considered according to the merits of his qualifications and experience because he was eliminated from consideration in the course of the selection process on account of his age.

My tentative view expressed in the s 27 notice did not deny that age and 'return on investment' could not lawfully be taken into account, but that was a matter for the Minister under Air Force Regulation 88(1D)(2) if the candidate who topped the merits assessment conducted in the selection process was of an age which gave rise to these considerations. A reference in the s 27 notice to Commonwealth of Australia v Human Rights and Equal Opportunity Commission recognised this, and the fact that management considerations of that kind might ultimately decide whether a particular candidate was appointed. However, in the case of the complainant there had been age discrimination in the way the selection process concerning him had been conducted. The relevance of his age was a matter that should have been considered after the respective merits of the qualifications and experience of the candidates had been completed.

The letter of 23 December 2004 from the respondent now seeks to change the factual premise on which my tentative view was based by asserting that there was a consideration of the merits of the complainant's qualifications and experience, and that the merits were the 'primary reason' for his non-appointment. That the merits were not the sole reason carries the implication that age was nevertheless one of the factors; as the earlier response dated 22 November 2002 says age was the factor that eliminated the complainant in the course of the selection process.

I remain of the view that to exclude the complainant on account of his age before a full consideration of the merits of his qualifications and experience constituted an impairment of the complainant's equality of opportunity on the basis of age, and constituted discrimination contrary to the HREOC Act. I report accordingly.

8. RECOMMENDATION

Having come to the view that the complainant was discriminated against on the basis of age, I also considered what recommendations should be made.

The HREOC Act does not make it unlawful to discriminate on the ground of age. However, the Division of the HREOC Act under which this inquiry was conducted is directed to the elimination of discrimination in employment and occupation. Section 35(2) expressly provides that, where an act or practice is found to constitute discrimination, the Commission may make such recommendations, including compensation, as it considers appropriate:

  1. Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:
    1. ...
    2. may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
    3. may include in the notice any recommendation by the Commission for either or both of the following:
      1. the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
      2. the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

I recommend that the respondent should provide a written apology to the complainant. I note that the complainant throughout the complaint process has advised that the remedy he seeks is a written apology from the Chief of Air Force to resolve his complaint.

I do not consider that I should be recommending financial compensation or any other remedy as there is no way to determine whether the complainant would have ultimately been selected for the position even if the respondent had fully considered the complainant for the Command position in a non-discriminatory manner.

9. ACTIONS TAKEN BY THE RESPONDENT AS A RESULT OF THE FINDINGS AND RECOMMENDATIONS MADE ON 4 FEBRUARY 2005

The respondent's response to my findings and recommendations is set out at paragraph 1.4 above.

I report accordingly to the Attorney General.

John Von Doussa QC

President

March 2005

APPENDIX 1

Functions unctions of the Human Rights and Equal Opportunity Commission

Part II Division 4 of the HREOC Act confers functions on the Commission in relation to equal opportunity in employment in pursuance of Australia's international obligations under ILO 111.4

The Commission can inquire into complaints of discrimination in employment and occupation against any employer and attempt to effect a settlement - s 31(b) and s 32(1)(b). Section 31(b) of the HREOC Act provides that the Commission can inquire into any act or practice that may constitute discrimination and:

  1. where the Commission considers it appropriate to do so - to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
  2. where the Commission is of the opinion that the act or practice constitutes discrimination, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement - to report to the Minister in relation to the inquiry.

Section 8(6) of the HREOC Act provides that the President shall perform the Commission's function of inquiring into any act or practice that may constitute discrimination as defined by the HREOC Act.

Where conciliation is unsuccessful or is deemed inappropriate, and the Commission is of the opinion that an act or practice appears to constitute discrimination, the Commission is required to provide an opportunity to the parties to make written and/or oral submissions in relation to the complaint - s 27 and s 33.

Where, after the inquiry, the Commission finds discrimination the Commission is required to serve notice setting out the findings and the reasons for those findings - s35(2)(a). The Commission may include recommendations for preventing a repetition of the act or practice and for the payment of compensation or the taking of any other action to remedy or reduce the loss or damage suffered as a result - s 35(2)(b) and (c).

However, it is not unlawful to breach the principles of non-discrimination protected under the HREOC Act and the Commission does not have power to enforce its recommendations. If the Commission makes a finding of discrimination it must report on the matter to the federal Attorney-General under s 31(b)(ii) who subsequently tables the report in Parliament in accordance with s 46 of the HREOC Act. This is effectively the only power which the Commission can exercise if a complaint proves to be non-conciliable.

Discrimination in employment and occupation

Under s 3(1) of the HREOC Act discrimination means:

  1. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute

      discrimination for the purposes of this Act;

    but does not include any distinction, exclusion or preference:

  3. in respect of a particular job based on the inherent requirements of
    the job;...

ILO 111 prohibits discrimination on certain specified grounds.5 Those grounds are contained in the HREOC Act in subparagraph (a) of the definition of discrimination. ILO 111 also provides that ratifying States may address discrimination on additional grounds.6 The HREOC Act provides in subparagraph (b)(ii) of the definition of discrimination for the adoption of regulations to declare additional grounds in accordance with this provision in ILO 111. Under this power the Human Rights and Equal Opportunity Commission Regulations (Cth) declared age as a ground of discrimination for the purposes of the HREOC Act with effect from 1 January 1990.7

It is an accepted principle in domestic law that where a statute contains language that derives directly from an international instrument, such as the HREOC Act does, it should be interpreted in accordance with the interpretation the language has been given at the international level.8 The comments of the International Labour Conference Committee of Experts on the Application of Conventions and Recommendations (the Committee of Experts) are relevant to the interpretation of the HREOC Act's definition of discrimination.

According to the Committee of Experts there are essentially three elements to the definition of discrimination in ILO 111:

  1. an objective factual element, being the existence of a distinction, exclusion or preference which effects a difference in treatment in comparison with another in the same situation;
  2. a ground on which the difference of treatment is based that is declared or prescribed;
  3. the objective result of this treatment, that is, a nullification or impairment of equality of opportunity or treatment in employment or occupation.

Further the Committee of Experts has expressed the view that 'the adoption of impersonal standards based on forbidden grounds' and 'apparently neutral regulations and practices [that] result in inequalities in respect of persons with certain characteristics' also constitute discrimination.9

The Committee of Experts has commented on the ILO 111 provision of 'any distinction, exclusion or preference in respect of a particular job based on inherent requirements of the job'. To be an inherent requirement the condition imposed must be proportionate to the aim being pursued and must be necessary because of the very nature of the job in question. The Committee stated for example that the exception 'refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by characteristics of the particular job, and be in proportion to its inherent requirements.'10

The Committee of Experts has agreed that an intention to discriminate is not necessary for a finding of discrimination under ILO 111.11

ENDNOTES

  1. http://www.humanrights.gov.au//human_rights/trade_union/index.html.
  2. http://www.humanrights.gov.au/human_rights/human_rights_reports/hrc_report_26.htm.
  3. http://www.humanrights.gov.au/human_rights/human_rights_reports/hrc_report_26.htm.
  4. Ratified by Australia in 1973.
  5. Art 1(1)(a).
  6. Art 1(1)(b).
  7. SR 1989 407, notified in the Commonwealth of Australia Gazette on 21 December 1989.
  8. Koowarta v Bjelke-Petersen & Others (1981) 153 CLR 168 at 265 (Brennan J); Minister for
    Foreign Affairs and Trade & Ors v Magno and Another (1992) 112 ALR 529 at 535-6 (Gummow J).
  9. International Labour Conference, Equality in Employment and Occupation: General Survey by the Committee of Experts on the Application of Conventions and Recommendations ILO, Geneva, 1988, 23.
  10. Ibid at 138.
  11. Ibid at 22.

Last
updated 2 December 2001.