Legal Briefing No. 34

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.

1Johnson 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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