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Australian Government Solicitor

 

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Legal Briefing

Number 34

5 August 1997

DISCRIMINATION LAW AND COMMONWEALTH PUBLIC SERVANTS

Discrimination law is, predominantly, a creation of the legislature. The Commonwealth, States and Territories all have various Acts prohibiting or otherwise regulating discriminatory conduct. Generally it is only the Commonwealth legislation relating to discrimination that is relevant to the Commonwealth.

The four primary Commonwealth Acts ('the anti-discrimination acts') are as follows:

  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992
  • Human Rights and Equal Opportunity Commission Act 1986 ('the HREOC Act').

The Workplace Relations Act 1996 ('the WR Act') makes it unlawful to terminate the employment of an employee on certain grounds, including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin - paragraph 170CK(2)(f) WR Act.

These provisions only affect the termination of employment, whereas the anti-discrimination acts described above deal, in addition, with discrimination that arises in the workplace in other circumstances. (The WR Act provisions on termination of employment do not apply to members of the Defence Force(1) or to employees exempted under the WR Regulations.)

Scheme of the Acts

The scheme of the anti-discrimination acts, other than the HREOC Act, is similar. The HREOC Act adopts a quite different scheme. Under it, HREOC can merely inquire into discriminatory conduct of the kind covered by that Act and make reports and recommendations on that conduct. Inquiries may be at the initiative of HREOC or as a result of a complaint.

A failure to comply with a recommendation of HREOC may be the subject of a report to the Attorney-General, which is required to be tabled in Parliament.

The relevant Commissioner (Racial Discrimination Commissioner, Sex Discrimination Commissioner or Disability Discrimination Commissioner) has the function of investigating and conciliating complaints under the other anti-discrimination acts. If the complaint cannot be resolved by way of conciliation the matter is referred to HREOC for hearing. HREOC can make determinations which are binding on the Commonwealth.

A determination may include a declaration that compensation be paid by the respondent to a complainant. Determinations for the payment of compensation by the Commonwealth may be the subject of an application to the Administrative Appeals Tribunal, where the Attorney-General so permits. The legislation is proposed to be amended soon so that HREOC will no longer have a hearing function. That function will be carried out by the Federal Court. (Human Rights Legislation Amendment Bill 1996.)

Prohibition of Discrimination

The Racial Discrimination Act prohibits discrimination based on race, colour, descent or national or ethnic origin. The Sex Discrimination Act prohibits discrimination on the ground of a person's sex, marital status, pregnancy or potential pregnancy. It also prohibits sexual harassment. The Disability Discrimination Act prohibits discrimination on the grounds of a person's disability or a disability of any of that person's associates.

The HREOC Act enables HREOC to inquire into any act or practice that may constitute discrimination on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference or trade union activity.

HREOC may also inquire into acts or practices that may be inconsistent with or contrary to any human right, which is defined to include the rights and freedoms recognised in the International Covenant on Civil and Political Rights and in certain other international instruments declared under the Act.

Definition of Discrimination

Discrimination in the Sex and Disability Discrimination Acts is defined as treating a person less favourably, by reason of a discriminatory factor (e.g. the person's sex), than the person would be treated in the absence of the discriminatory factor, where the circumstances are the same or not materially different. The Racial Discrimination Act and the HREOC Act focus on distinction, exclusion or preference, based on discriminatory factors, which has the effect of nullifying or impairing:

  • in the case of the Racial Discrimination Act, the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom (as defined in that Act), and
  • in the case of the HREOC Act, the equality of opportunity or treatment in employment or occupation.

The anti-discrimination acts, other than the HREOC Act, also include indirect discrimination provisions. Those provisions can give rise to liability unless the indirectly discriminatory condition, requirement or practice is reasonable in the circumstances.

Causal Connection Required

Broadly, the anti-discrimination acts require a causal connection between the discriminatory factor and the less favourable treatment. Generally, it is sufficient that the discriminatory factor be a reason for the less favourable treatment and it need not be the only reason.

Liability

The anti-discrimination acts bind the Commonwealth and generally apply to conduct engaged in by, or on behalf of, the Commonwealth. In particular, the anti-discrimination acts, other than the HREOC Act, expressly apply to Commonwealth employment.

The HREOC Act applies to acts or practices engaged in by, or on behalf of, the Commonwealth and the Commonwealth can therefore be a respondent to proceedings. Under the other anti-discrimination acts, there is doubt as to whether the Commonwealth can be directly liable or will only be liable as a result of the conduct of its employees or other persons for whose conduct the Commonwealth is responsible.

Vicarious Liability Provisions

The anti-discrimination acts other than the HREOC Act have vicarious liability provisions in various terms, which make the Commonwealth responsible for the conduct of its employees etc. The vicarious liability provisions in the Racial and Sex Discrimination Acts are probably the most onerous. They make the Commonwealth liable for the conduct of its employees etc, unless the Commonwealth can establish that it took all reasonable steps to prevent the discriminatory conduct in issue.

What steps the Commonwealth will have to take to avoid vicarious liability in a particular case will depend on all the relevant circumstances of that case. Generally, the Commonwealth will need to show that it had in place an effective system for preventing discrimination (or sexual harassment) and that the system was effectively monitored to ensure that it was achieving its intended purpose.

Elements of an effective system would generally include a policy for prevention of discrimination, the dissemination of that policy, the establishment of a mechanism by which discrimination can be reported and addressed (e.g. a system of equal opportunity officers and sexual harassment contact officers) and appropriate training for persons with responsibilities under the system.

The Federal Court's recent decision in McManus v Scott-Charlton (1996) 140 ALR 625 has particular implications for vicarious liability under the anti-discrimination acts (see Legal Practice Briefing No.30). In some situations it may be lawful and appropriate for an agency to make directions in relation to the conduct of an officer outside the workplace and it may be necessary for such directions to be made, if vicarious liability is to be avoided. It may also be necessary for disciplinary action to be taken against a discriminator, so as to avoid vicarious liability.

As a matter of practice HREOC often names only the Commonwealth as a respondent to proceedings and does not name any individual whose conduct may be the basis for the Commonwealth's vicarious liability. Where vicarious liability is not in contention, this practice may not be of concern. In other cases, where vicarious liability is in issue, or where the Commonwealth would otherwise be denied procedural fairness, it may be appropriate for the Commonwealth to insist that the particular employee for whose conduct the Commonwealth is allegedly vicariously liable should also be named as a respondent.

Where HREOC is satisfied that the Commonwealth is vicariously liable, it is open to HREOC to make determinations binding on the Commonwealth, including for the payment of compensation. Doubt attends whether HREOC can apportion (between the Commonwealth and a Commonwealth employee, who is also a respondent to proceedings) the compensation that is to be paid in relation to unlawful conduct for which the Commonwealth has been found vicariously liable.

Where an employee is named as a respondent in HREOC proceedings, the Commonwealth may decide to support the employee by agreeing to pay the employee's legal expenses and undertaking to meet any damages awarded against the employee. Generally, as a matter of policy, the Commonwealth will consider whether an employee acted reasonably and responsibly in the course of the employee's duties when deciding whether to support an employee. It is a condition of such support that the Commonwealth direct the defence of the employee.

Exemptions

Various exemptions are available under the anti-discrimination acts, only some of which are mentioned in this Briefing. Generally, positive discrimination is not unlawful. Discrimination on the ground of sex in relation to an employment position is not unlawful where it is a genuine occupational qualification for the person to be of a particular sex or for the person to possess characteristics peculiar to a particular sex. Disability discrimination in relation to engagement or termination of employment is not unlawful where the person is unable to carry out the inherent requirements of particular employment because of the disability or where, in order to carry out those requirements, the person would require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

The exemption in the Disability Discrimination Act in relation to the inherent requirements of employment is subject to an appeal to the Full Federal Court in the case of the Commonwealth v HREOC and X. The matter has been heard and the decision of the Full Court is reserved. That case concerns the question whether an Army recruit who tested as HIV positive was able to carry out the inherent requirements of employment as a soldier. The Commonwealth has submitted that it is an inherent requirement of such employment that a soldier, who is at risk of injury during training or military deployment, not expose fellow soldiers to an unreasonable risk of contraction of HIV. A case pending in the High Court (Qantas v Christie) concerning the 'inherent requirements' exemption in the WR Act may assist to clarify the meaning of 'inherent requirements' of employment in the Disability Discrimination Act exemption.

Criminal Proceedings and Compensation Claims

Circumstances which give rise to complaints of discrimination to HREOC can also give rise to criminal proceedings or disciplinary action against the person who is the subject of the complaint and may also give rise to compensation claims by the complainant under other legislation, for example, under the Safety, Rehabilitation Compensation Act 1988 (the SRC Act) or under criminal injuries compensation legislation.

The Chief General Counsel has advised on the interaction between the Sex Discrimination Act and the SRC Act. Briefly, that advice is to the effect that the SRC Act does not preclude HREOC awarding damages in accordance with the Sex Discrimination Act in respect of an injury within the meaning of the SRC Act. However, generally, if HREOC does award such compensation for economic loss, as opposed to for pain and suffering, the complainant will be required to make repayment to Comcare, where the complainant has already received compensation under the SRC Act in respect of that injury. Where the complainant has not received any such compensation under the SRC Act, the complainant will be precluded in the future from receipt of any such compensation.

1 Johnson v The Commonwealth (1995) 59 IR 173

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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