Australian Iron & Steel Pty Ltd v Banovic - [1989] HCA 56 - HCA 1989 case summary — Zoe

CTHHCA

Australian Iron & Steel Pty Ltd v Banovic

[1989] HCA 56

High Court of Australia|1989-07-01|Before: McHugh JJ, Brennan J, McHugh J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1989-07-01

Before

McHugh JJ, Brennan J, McHugh J

Source

Original judgment source is linked above.

Judgment (157 paragraphs)

[1]

High Court of Australia Brennan, Deane, Dawson, Gaudron and McHugh JJ. Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56

[2]

I agree with the judgment of McHugh J., but I would briefly state the chief reason which leads me to the conclusion that the appeal should be allowed. The case turns upon the construction of the provisions of the Anti-Discrimination Act 1977 N.S.W. ("the Act") relating to Sex Discrimination: Pt III of the Act. The provisions relating to Sex Discrimination and the provisions relating to Racial Discrimination (Pt II), Discrimination on the Ground of Marital Status (Pt IV), Discrimination on the Ground of Physical Impairment (Pt IVA), Discrimination on the Ground of Intellectual Impairment (Pt IVB) and Discrimination on the Ground of Homosexuality (Pt IVC) are all framed in the same way. Each of these Parts opens with a definition of the elements of the relevant category of discrimination and is followed by provisions which prescribe either activities in which it is unlawful for one person to discriminate against another or various acts by the doing of which one person might unlawfully discriminate against another. The activities and acts so prescribed are divided in each Part between those engaged in or done "in Work" (Div. 2) and those engaged in or done "in Other Areas": Div. 3. Not all discrimination is unlawful: unlawful discrimination must be found in activities or in the doing of acts prescribed in Div. 2 or Div. 3 of the respective Parts.

[124]

In our view it is not right to give these words a narrow construction. The purpose of the legislature in introducing the concept of indirect discrimination into the Act of 1975 and the Race Relations Act 1976 was to seek to eliminate those practices which had a disproportionate impact on women or ethnic minorities and were not justifiable for other reasons. The concept was derived from that developed in the law of the United States which held to be unlawful practices which had a disproportionate impact on black workers as opposed to white workers: see Griggs v. Duke Power Co. [27] . If the elimination of such practices is the policy lying behind the Act, although such policy cannot be used to give the words any wider meaning than they naturally bear it is in our view a powerful argument against giving the words a narrower meaning thereby excluding cases which fall within the mischief which the Act was meant to deal with. In Watches of Switzerland Ltd. v. Savell [28] , the Employment Appeal Tribunal said that it agreed with earlier statements "that the statutory words should be given a liberal interpretation in order to implement the object of the legislation". In Home Office v. Holmes [29] , the Employment Appeal Tribunal held that an obligation to work full-time was a requirement or condition of employment within the meaning of the Act. Waite J., delivering the judgment of the Tribunal, said [30] : It appears to us that words like "requirement" and "condition" are plain, clear words of wide import fully capable of including any obligation of service whether for full-time or for part-time, and we see no basis for giving them a restrictive interpretation in the light of the policy underlying the Act InStyles v. Secretary of Department of Foreign Affairs and Trade [31] , Wilcox J., after referring to these cases and the decision of the Court of Appeal in the present case, said: As Browne-Wilkinson J. pointed out, the purpose of a provision such as s. 5(2) is to eliminate practices which amount to indirect discrimination, practices which may at first sight have nothing to do with sex discrimination but which may impose a disadvantage upon persons of one sex which is disproportionate to its incidence upon the other sex. The forms of such disadvantage being almost infinitely various, the court should look at situations realistically, assessing whether, in a particular case, there was insistence upon a particular requirement. His Honour's decision on this point was upheld by the Full Court of the Federal Court. Bowen C.J. and Gummow J. said, in the context of that case - an appointment case - that a requirement or condition meant "a stipulation which must be satisfied if there is to be a practical (and not merely a theoretical) chance of selection" [32] . 1. [1983] I.C.R. 165. 2. [1983] I.C.R., at p. 171. 3. (1971) 401 U.S. 424. 4. [1983] I.R.L.R. 141, at p. 146. 5. [1984] I.C.R. 678. 6. [1984] I.C.R., at p. 683. 7. (1988) 84 A.L.R. 408, at pp. 423-424. 8. (1989) 88 A.L.R. 621, at p. 629.

[138]

Within the universe of discourse created by the terms of the sub-section, one looks at all those who comply or are able to comply and asks whether of that total those of the opposite sex to the aggrieved person may be described as a substantially higher proportion than those of the sex of the aggrieved person. Applying this construction in the present case, the total of those persons equivalent to Grade A2 and above who comply or are able to comply is 20; the proportion of persons of the opposite (male) sex to the aggrieved person who comply or are able to comply is 17/20 (or 85 per cent); and the proportion of persons of the (female) sex of the aggrieved person who comply or are able to comply is 3/20 (or 15 per cent). The former proportion is substantially higher than the latter proportion. On their Honours' approach one compares two fractions in which the denominator of each is the total of men and women who comply or are able to comply with the requirement or condition and the numerators of the respective fractions are the respective numbers of men and women who comply or are able to comply with the requirement or condition. In truth this is simply to compare the number of one sex who comply or are able to comply with the requirement or condition with the number of the opposite sex who comply or are able to comply with the requirement or condition. Pincus J., the other member of the Full Court, rejected the numerical comparison approach which Bowen C.J. and Gummow J. applied. His Honour thought that Mahoney and Priestley JJ.A. were correct in the present case in holding "that there must be two separate denominators - one for each of the two proportions compared". But Pincus J. also said "that the view of Street C.J. in the A.I.S. Case [40] is correct: "the base group is to be constituted by the persons to whom the requirement or condition was directed and who are divided or segregated by it", with the reservation that I would take two separate base groups or pools". 1. (1989) 88 A.L.R., at p. 630. 2. (1988) 12 N.S.W.L.R., at p. 596.

[145]

This passage does not articulate the precise train of reasoning which the Tribunal followed in reaching its conclusion that a substantially higher proportion of men than women complied or were able to comply with the condition imposed by A.I.S. The submission of Mr. Basten, which the Tribunal recited in the first paragraph of this passage, seemed to require a comparison of the respective numbers of male and female ironworkers who could comply with the condition imposed "on each employee" as at the date of retrenchment. Although the opening words of the second paragraph of the passage might suggest that the Tribunal accepted Mr. Basten's submission, the terms of the second and third paragraphs, read as a whole, make it plain, however, that the Tribunal did not accept his submission. Those paragraphs indicate that, for the purpose of determining whether a substantially higher proportion of male ironworkers than female ironworkers complied or were able to comply with the requirement or condition imposed by A.I.S., the Tribunal compared the complainants as one group and the male ironworkers who applied for employment at the same time as the complainants as the other group. Whether the Tribunal made a number or percentage comparison does not appear. Nor from a practical point of view does it matter. On the approach of the Tribunal, no member of the complainants' group could comply with the requirement or condition, and the Tribunal impliedly found that some "men who applied for jobs at or about the same time" as the complainants could comply. I say impliedly found because the statement that the complainants "had very much less "gate" seniority than men who applied for jobs at or about the same time" implies that some or all of the men, who applied for employment at the time the complainants did, were still in employment with A.I.S. when the retrenchment notices were given. Whether there was any evidence that this group of male ironworkers were still in employment with A.I.S. when the retrenchments were made does not appear. But I shall assume that the Tribunal was entitled to find that, when the notices of retrenchment were given, there were one or more male ironworkers still employed by A.I.S. who had applied for employment at or about the same time as the complainants had applied. If there were, then obviously the proportion of those male ironworkers (probably 100 per cent) who could comply with the requirement or condition was higher than the proportion of the complainants (0 per cent) who could comply with the requirement or condition.

[151]

However, the real answer to the submission of Mr. Basten is that s. 24(3)(a) requires the comparison of the proportions of the members of each sex who comply or are able to comply with the requirement or condition with which the complainant is required to comply. For the purpose of the statutory comparison, it is beside the point that the respective sex groups are the product of discrimination. The statutory command requires the comparison of the proportions of males and females who comply or are able to comply with the specified requirement or condition and those proportions can only be determined by ascertaining the number of females and males who comply or are able to comply with the requirement or condition. If in fact those proportions are the product of prior discriminatory practices, s. 24(3)(a) nevertheless requires their comparison. It is true that one of the purposes of the Act is to eliminate sex discrimination. Elsewhere, I have drawn attention to the need to construe an enactment by reference to its statutory purpose and to give effect to it "in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object": Kingston v. Keprose Pty. Ltd. [41] . But I do not think that it is possible to modify the grammatical meaning of s. 24(3)(a) by adding to it such words as "not being proportions which are affected by previous acts of discrimination". It must be remembered that, although one of the objects of the Act is to eliminate sex discrimination, sex discrimination in the Act has the artificial meaning given to it by s. 24. That is to say, to find out for the purposes of the Act what is sex discrimination in any particular case, you must apply the terms of s. 24(1) and s. 24(3). If the conduct of an alleged discriminator falls within one or other of the definitions in s. 24, then it amounts to sex discrimination. Otherwise it does not. It would be illogical to modify the definition for the purpose of giving effect to a supposed statutory purpose when the statutory purpose itself can only be discerned by reference to the terms of that definition as unmodified. In my opinion, it would not be a proper application of the principles of statutory construction to read down the statutory definition of sex discrimination in s. 24(3) by adding words such as "not being proportions which are affected by previous acts of sex discrimination" to the end of s. 24(3)(a). Indeed, if the Tribunal's finding in this case is any guide, a complainant will often be advantaged by the selection of a pool which is affected by previous acts of discrimination.