Discrimination on the Ground of Sex (subs 14(2))
48 For an applicant to establish that a respondent has engaged in conduct rendered unlawful by subs 14(2) of the SDA, the applicant must, in a broad sense, establish two things. First, that the respondent has engaged in conduct that constitutes sex discrimination within the meaning of the SDA. Secondly, that that conduct was conduct of a kind rendered unlawful by the SDA.
49 To constitute sex discrimination within the meaning of the SDA conduct must come within the terms of subs 5 of the SDA. Conduct that comes within the terms of subs 5(1) is often described as direct discrimination and conduct that comes within the terms of subs 5(2) is often described as indirect discrimination.
50 It seems clear that Ms Evans sought to establish before the Federal Magistrate that the respondent had directly discriminated against her by treating her less favourably than, in circumstances that are the same or are not materially different, it treats or would treat a man. It was her case that the respondent had so treated her by reason of a characteristic that appertains generally to, or is generally imputed to women. That characteristic, Ms Evans' contended, was the characteristic of having responsibility to care for their children.
51 In the circumstances, any finding that the respondent had directly discriminated against Ms Evans on the ground of her sex called for subsidiary findings that:
(a) the respondent had treated Ms Evans less favourably than, in the circumstances that are the same or are not materially different, it treats or would treat a man;
(b) the respondent had so treated Ms Evans because she has responsibility to care for her child; and
(c) the characteristic of having responsibility to care for their own children is a characteristic that appertains generally to, or is generally imputed to, women.
52 It also seems clear that Ms Evans sought to establish before the Federal Magistrate that the respondent had indirectly discriminated against her on the ground of her sex by imposing, or proposing to impose, a condition or requirement that had, or is likely to have, the effect of disadvantaging women. On her case, that condition or requirement was that she not take leave, or alternatively not take carer's leave, after 25 July 2000.
53 In the circumstances, any finding that the respondent had indirectly discriminated against Ms Evans called for subsidiary findings that:
(a) the respondent imposed, or proposed to impose, a condition or requirement;
(b) that condition or requirement was that Ms Evans not take leave, or alternatively, not take carer's leave, after 25 July 2000; and
(c) that condition or requirement has, or is likely to have, the effect of disadvantaging women.
54 Ms Evans sought to establish that the conduct of the respondent of which she complained was of a kind rendered unlawful by the SDA by proving that it involved discrimination by the respondent, as her employer:
(a) in the terms or conditions of employment that the respondent afforded her;
(b) by subjecting her to a detriment; and
(c) by constructively dismissing her.
55 Any finding that the respondent had unlawfully discriminated against Ms Evans on the ground of her sex, whether directly or indirectly, involved a subsidiary finding that the relevant conduct of the respondent involved discrimination by her employer in one or more of the ways identified in subparagraph (a), (b) and (c) above.
56 As is mentioned above, the reasons for decision of the Federal Magistrate do not record findings in respect of all of the matters that the applicant was required to prove to establish her case that the respondent has engaged in conduct rendered unlawful by subs 14(2) of the SDA. Were it not for the fact that the Federal Magistrate made a declaration, the absence of express findings could probably be disregarded on this appeal except to the extent that they are rendered relevant by the notice of appeal. However, the Federal Magistrate made the declaration recorded in [2] above.
57 In Rural Press v Australian Competition and Consumer Commission ('Rural Press v ACCC') [2003] HCA 75; 203 ALR 217 at [89]-[90] Gummow, Hayne and Heydon JJ expressed the view that, even if invited to do so, a trial judge should not make a declaration which is not tied to proven facts. In respect of declarations concerning contraventions of s 45 and s 46 of the Trade Practices Act 1975 (Cth), their Honours observed:
'The declarations spoke merely of "an arrangement" having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement.
These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those "by consent", should be paid by primary judges.'
58 Kirby J in Rural Press v ACCC at [141] suggested that procedural traditionalism should be avoided in the field of remedial statutory law. His Honour expressed similar views in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13; 205 CLR 1 at [121]. However, I doubt that anything said by his Honour in those two cases suggests disapproval of the views expressed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579 where their Honours said:
'The orders of the Full Court included a declaration "that both appellants are refugees and are entitled to the appropriate entry visas". A declaration in these terms lacked utility because it did not specify with reference to the legislation the "appropriate entry visas" nor did it indicate any ready means of identification thereof. A declaration so loosely framed is objectionable in form.' (citation omitted)
59 In Warramunda Village Inc v Pryde [2001] FCA 61 (FC); 105 FCR 437 at [8] the Full Court of the Federal Court observed:
'The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment.'
60 After I raised with the parties concern about the form of the declaration made by his Honour, Ms Evans submitted that:
'[Paragraph] 46PO(4)(a) provides for a simplified form of declaratory order where the Court is satisfied that there has been unlawful discrimination.'