Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor

BLACK CJ 1 This is an appeal against a decision of Wilcox J, dismissing an application for judicial review of a finding by the Human Rights and Equal Opportunity Commission ("Commission") that the Australian Defence Force's ("ADF") denial of employment to the second respondent, Mr Bradley, constituted "discrimination" within the meaning of subs 3(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("Act"). The Commission's finding was made following its investigation into a complaint by Mr Bradley that the ADF had refused to consider him for appointment to its Specialist Service Officer Pilot Scheme ("Pilot Scheme"), on the ground that he was not aged between 19 and 28 years of age. In addition to finding that the refusal amounted to discrimination, the Commission recommended that the Commonwealth pay Mr Bradley $5,000 as compensation for the loss suffered by Mr Bradley as a result of not having been considered for the Pilot Scheme. 2 The investigation into Mr Bradley's complaint was undertaken by the Commission in pursuance of its statutory obligation under par 32(1)(b) of the Act, and in accordance with the procedural rules governing such investigations contained in ss 20 to 27 of the Act (applicable by s 33). After completing its investigation, the Commission was required by s 35 of the Act to give written notice to the Commonwealth of its finding of discrimination and the reasons for that finding, and to provide a written report to the Minister in respect of the investigation and its results. The only statutory consequence of the Commission's decision was a requirement that the Minister lay the Commission's report before each House of Parliament within 15 sitting days of that House after receiving the report (s 46). 3 The main provisions of the Act governing the investigative functions of the Commission following a complaint of discrimination are contained in s 31, s 32 and s 35 of the Act. Those provisions (relevantly) provide as follows. "31. The following functions are hereby conferred on the Commission: (b) to inquire into any act or practice that may constitute discrimination and: … (ii) where the Commission is of the opinion that the act or practice constitutes discrimination … to report to the Minister in relation to the inquiry… 32. (1) Subject to subsections (2) and (3), the Commission shall perform the functions referred to in paragraph 31 (b) when: (a) the Commission is requested to do so by the Minister; (b) a complaint is made in writing to the Commission alleging that an act or practice constitutes discrimination; or (c) it appears to the Commission to be desirable to do so. (2) The Commission shall not inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, shall not continue to inquire into the act or practice, if the Commission is satisfied that the subject matter of the complaint is dealt with under a prescribed enactment or a prescribed State enactment. (3) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if: … (c) in a case where a complaint has been made to the Commission in relation to the act or practice: … (iii) where some other remedy has been sought in relation to the subject matter of the complaint - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; (iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the complainant; (v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or (vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority. 35. (2) 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: (a) shall serve notice in writing on the person setting out its findings and the reasons for those findings; (b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice; (c) may include in the notice any recommendation by the Commission for either or both of the following: (i) 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; (ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice; (d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c); (e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and (f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice: (i) where the complaint was made by a person affected by the act or practice - shall serve a copy of that report on the complainant; or (ii) if the complaint was made by another person - may serve a copy of that report on the complainant." 4 After it received the notice of discrimination served by the Commission under par 35(2)(a), the Commonwealth applied for judicial review of the Commission's findings on the ground that they disclosed certain errors of law. That application was heard by Wilcox J, who concluded that none of the errors had been demonstrated. The source of his Honour's jurisdiction to review the Commission's findings was identified in his reasons for judgment as the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). During the hearing of the appeal, however, a question arose as to whether the ADJR Act does in fact confer jurisdiction on this Court to review a finding of discrimination by the Commission under the Act. The Court's jurisdiction to review the Commission's decision 5 The appellant contends that the Court has jurisdiction to hear and determine the decision of the Commission under s 5 of the ADJR Act or, in the alternative, under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). 6 Section 5 of the ADJR Act confers jurisdiction on the Federal Court to review "a decision to which [the] Act applies" on any one or more of the grounds specified in that section upon application by a person aggrieved by the decision. A "decision to which [the] Act applies" is defined by s 3 of that Act to mean: "[A] decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment other than a decision by the Governor-General, or a decision included in any of the classes of decisions set out in Schedule 1…" 7 The question here is whether there was a reviewable "decision" within the meaning of s 3. During the hearing the appellant contended that there was, and relied on the written submissions prepared by the Commission in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (Einfeld J, 11 May 1999, unreported) ("Manning's case"), where the same question arose. Those submissions, which were made at the request of Einfeld J, supported the contention that a notice of a finding of discrimination served by the Commission under par 35(2)(a) of the Act was, or evidenced, a "decision" within the meaning of the ADJR Act, as that concept was explained by Mason CJ in Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 ("Bond"). In that case Mason CJ, with whom Brennan and Deane JJ agreed, said (at 336-338): "The relevant policy considerations [affecting the interpretation of "decision" under the ADJR Act] are competing … [but] do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. The answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character… If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character… The interpretation of 'decision' which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss… My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that 'it may well be that the word "decision" means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words 'of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination doe not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made." [Emphasis added, footnotes omitted.] 8 The Court in Manning's case accepted the Commission's submission and held that notice of a finding of discrimination served under par 35(2)(a) of the Act was, or evidenced, a "decision" for the purposes of the ADJR Act. 9 In my view, there was a "decision" within the meaning of the ADJR Act in the present case, and Wilcox J did have jurisdiction under s 5 of the ADJR Act to hear and determine the application for judicial review. It is, of course, important to identify with precision what the reviewable decision is. Here the reviewable decision is the finding by the Commission that the Commonwealth's conduct amounted to "discrimination" within the meaning of subs 3(1) of the Act, and its related recommendation that Mr Bradley be compensated by the Commonwealth for the loss he suffered as a result of that discrimination. It is not, as the appellant's primary argument would suggest, the written notice of that finding issued by the Commission under par 35(2)(a). Whilst such notice may be said to "evidence" the Commission's decision, I do not consider that it can properly be characterised as a "decision" in itself for the purposes of the ADJR Act. The same reasoning applies in respect of any report prepared by the Commission for the Minister about its investigation into Mr Bradley's complaint under par 35(2)(d) of the Act. Moreover, such a report would not be made a "decision" by the operation of subs 3(3) of the ADJR Act, as the Act does not provide for the making of that report "before a decision is made in the exercise of a power under that enactment or under another law" as required by subs 3(3). Indeed, in the present case the making of the decision preceded the making of the report, rather than the other way around which is the situation envisaged by subs 3(3). 10 The Commission's actual finding of discrimination, however, (and related recommendation regarding the payment of compensation) does satisfy the criteria of a reviewable "decision" explained by Mason CJ in Bond; it is substantive rather than procedural, and is final and determinative, in a practical sense at least, of the issue raised by Mr Bradley's complaint. It was the final conclusion at the last stage of the administrative procedure provided by the Act for resolving that complaint, and took immediate effect upon its communication to the Commonwealth or the Minister (see Kelson v Forward (1995) 60 FCR 395 ("Kelson"); Harris v Bryce (1993) 41 FCR 388; Edelsten v Health Insurance Commission (1990) 27 FCR 56 ("Edelsten"); see Lloyd v Marine Council (Federal Department of Transport) & Ors (1987-8) 14 ALD 521 ("Lloyd")). It is likely to be the only resolution of such complaint by a statutory body (see s 32 of the Act and the corresponding provisions of the Explanatory Memorandum), and must be assumed to have raised a legitimate expectation in the mind of Mr Bradley, at least, that the ADF's employment criteria would be reviewed, and that he would be compensated for his loss in the manner and to the extent recommended by the Commission (see Edelsten). (Counsel for the Commonwealth also stated during the hearing of the appeal that the ADF did not regard itself, from a policy point of view, as permitted simply to ignore the Commission's findings.) The fact that the decision is not, as a strict matter of law, binding on the parties is not in my view decisive in this context. (Kelson. See further, in respect of a non-binding determination of the Commission under s 81 of the Sex Discrimination Act 1984 (Cth): Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Ors (1991) 32 FCR 468 (Davies J); Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor (1997) 150 ALR 1 (Full Federal Court). See also, in respect of decisions of the Commission under the Act: Secretary, Department of Defence v Human Rights and Equal Opportunity Commission & Ors (1997) 149 ALR 309 (Branson J); Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Anor (Moore J, 27 February 1998, unreported).) For these reasons, and despite the language used in par 31(b)(ii) of the Act, I do not regard the Commission's finding and related recommendation as "a mere expression of opinion or a statement which can of itself have no effect on a person" (Ross v Costigan (1982) 59 FLR 184 at 197 per Ellicot J, cited with approval by Mason CJ in Bond at 338). 11 The conclusion that there is a reviewable decision in the present case is supported by the reasoning of Finn J in Kelson, and by the reasoning of the Full Federal Court in Edelsten. The first of the decisions in Edelsten was a decision by a delegate of the Health Insurance Commission (Dr Nearhos) to refer the question of whether Dr Edelsten may have rendered excessive medical services to a delegate of the Minister (Dr Dash). A majority of the Full Court, relying on Bond, held that this decision was not a reviewable decision on the following grounds (at 68-69 per Northrop and Lockhart JJ, in their joint judgment): "No provision of any of the relevant statutes or regulations was pointed to by counsel as imposing any duty on the Minister or his delegate to do anything about the reference to him or his delegate by Dr Nearhos pursuant to reg 3(2)(b), nor can we find any. At most, the reference by Dr Nearhos to the Minister's delegate obliged [him] to consider it and make a decision as to what he should do about it. The Minister has power (implied from s 82) to refer to the Committee 'any matter … that is relevant to the operation or administration of" the Health Insurance Act… The reference made by Dr Nearhos to Dr Dash … plainly may be the subject of the Minister's reference to the Committee pursuant to s 82. No rights of Dr Edelsten are affected by Dr Nearhos's decision, nor does any 'legitimate expectation' arise from it. During the course of the investigations being made by Dr Nearhos, Dr Edelsten spent much time and energy in supplying information to Dr Nearhos and other members of the Commission. This action by Dr Edelsten can be understood, but that action does not 'constitute rights of Dr Edelsten' in any relevant sense. Nor does that action form the basis for any 'legitimate expectation'. Dr Edelsten was not required by law to take that action or to give any information or explanation. The legal 'rights' of Dr Edelsten were not affected by what the officers did. Dr Edelsten could have refused to co-operate and in so doing would not have committed any offence." 12 The situation in the present case is very different. Here the Minister was required by law to act upon the Commission's finding of discrimination (see s 46), and the parties were required to cooperate with the Commission by giving any information and producing any documents required by it (see s 21 and s 22, which apply by reason of s 33). The requirements were real and enforceable. A failure or refusal to do so could have attracted the penalties provided for by s 23 (and possibly s 26) of the Act. Furthermore, the Commission's obligation, under s 27 of the Act, to give the parties a reasonable opportunity to make written submissions to the Commission in relation to the allegation of discrimination, and to appear before it in person or by a representative to make oral submissions, created rights for both parties and formed the basis for "legitimate expectations" of the type referred to by the Full Court in Edelsten. 13 The second of the decisions considered in Edelsten was the decision of the Minister's delegate (Dr Dash) to refer the question whether Dr Edelsten had rendered excessive medical services to the Committee for inquiry, and for the submission of a report and recommendations by the Commission to the Minister. A majority of the Full Court found that this decision also was not reviewable under the ADJR Act. On this point Northrop and Lockhart JJ said (in their joint judgment, at 69): "For similar reasons [as those extracted above], neither did the subsequent decision of Dr Dash to refer, as delegate of the Minister, the matter to the Committee pursuant to s 82 affect any rights of Dr Edelsten or give rise to any legitimate expectation. Indeed, even when the Minister or his delegate refers a matter to the Committee pursuant to s 82, the Committee, though bound by s 94 to consider the matter, may decide no more than that Dr Edelsten may have rendered excessive services: s 94(c). But the Committee is not empowered to decide at that preliminary stage whether Dr Edelsten has or has not rendered excessive services, simply whether he may have rendered excessive services. It is only when the Committee reaches an affirmative view on that question that it is required to conduct a hearing into the matter… The machinery of the Health Insurance Act then comes into operation, requiring the Committee to give notice of the hearing to Dr Edelsten and particulars of the matter to which the hearing relates (s 95); empowering it to issue summonses to Dr Edelsten and others for the production of documents and the giving of evidence at the hearing; and giving Dr Edelsten the right to legal representation at the hearing which must be conducted in private. Section s 94 to 105 of the Health Insurance Act contain provisions commonly found with respect to administrative inquiries, conferring powers on the inquisitor and rights and duties on the person whose conduct is the subject of the inquiry. There is no doubt that the rules of natural justice apply to the hearing before the Committee. Dr Edelsten must be given full opportunity to answer all of the particular matters set out in the notice of hearing under s 95(2) if a hearing in fact takes place. Whether there will be such a hearing will depend on whether the Committee reaches a preliminary conclusion that Dr Edelsten may have rendered excessive services. The making of an adverse report and recommendations by the Committee to the Minister does not itself in law affect Dr Edelsten's rights, though it is the genesis of a series of steps which ultimately may seriously affect his rights. The Minister must first consider the report and recommendations and may make a determination in writing in accordance with the recommendations… Dr Edelsten then has a right to request a review of the determination or to apply for judicial review… It is only when the processes of review by a Tribunal under the Act are completed that the Minister's determination takes effect. The Minister is then required, by s 106AA to publish the requisite particulars of the determination and certain other matters and to cause a copy of the relevant statement to be laid before each House of the Parliament." 14 Once more, the circumstances of the present case are very different. Here the Commission was empowered to make a determination as to whether the act or practice in question constituted "discrimination" and, indeed, could only make that determination after conducting a full inquiry into the matter. The machinery of the Act was by that stage already in operation, conferring similar rights and obligations upon the parties and the Commission as are conferred in the context of a Committee hearing under the Health Insurance Act. Just as the rules of natural justice were considered by the Full Court in Edelsten to apply to such a hearing, so too I am of the view that the principles of natural justice would apply to a hearing by the Commission under par 31(b)(ii). In addition, just as the Full Court in Edelsten was of the view that a determination by the Minister under the Health Insurance Act would take effect upon the exhaustion of that Act's review provisions, so too here the finding of discrimination by the Commission took effect upon the exhaustion (subject to the operation of subs 35(2) and s 46) of the Act's machinery for the resolution of Mr Bradley's complaint. The requirement that the details of that finding then be laid before each House of the Parliament by the Minister confirms, as it appears to have done for the Full Court in Edelsten with respect to the Committee's post-hearing decision, the finality of that finding. 15 For these reasons I consider that the decision by the Commission that the conduct of the ADF amounted to "discrimination" and that Mr Bradley should be compensated for that discrimination, is reviewable by the Court under s 5 of the ADJR Act. I now turn to consider the substantive appeal. The Commonwealth's appeal against the decision of Wilcox J 16 The Commission found that the ADF's refusal to consider Mr Bradley for entry to the Pilot Scheme on the ground that he was not aged between 19 and 28 years of age constituted "discrimination" within the meaning of subs 3(1) of the Act. Subsection 3(1) provides: "'discrimination' means: … (b) any other distinction, exclusion or preference that: … (ii) has been declared by the regulations to constitute discrimination for the purposes of this Act [including, by regulation 4 of the Human Rights and Equal Opportunity Commission Regulations 1989 (Cth), a distinction, exclusion or preference on the ground of age]; but does not include any distinction, exclusion or preference: (c) in respect of a particular job based on the inherent requirements of the job…" 17 It was accepted by the parties (before both the Commission and Wilcox J) that the ADF's requirement that entrants to the Pilot Scheme be aged between 19 and 28 years of age at the date of their appointment amounted to "a distinction, exclusion or preference on the ground of age" within the meaning of par (b)(ii) of the definition of "discrimination". The issue was whether that requirement was "in respect of a particular job based on the inherent requirements of the job" within the meaning of par (c). Before considering this issue it will be necessary to say something about the facts as found by the Commission. 18 On 22 April 1993 Mr Bradley, who was then 37 years of age, attended an Army recruitment unit in Townsville to inquire about joining the Army as a helicopter pilot. He was there interviewed by Corporal Keith Chambers, who advised Mr Bradley that helicopter pilots were recruited by the Army into its Pilot Scheme, and that eligibility for recruitment to that Scheme was restricted to persons aged between 19 and 28 years of age at the date of their appointment ("the 19-28 Rule"). At or around the time of that interview Mr Bradley was given the following information brochure explaining the Pilot Scheme. "SPECIALIST SERVICE OFFICER ARMY PILOT The Specialist Service Officer (SSO) Pilot Scheme is a scheme to produce sufficient pilots on short service commissions to operate the Army's aircraft. The scheme is open to civilian and Service applicants. QUALIFICATIONS Applicants are not required to hold any professional qualifications and prior flying experience is not necessary. Successful applicants will be taught to fly and, if successful, will be employed for the remainder of their appointment flying Army aircraft. The quality of training and experience gained in demanding flying and the number of flying hours accrued on at least one Army aircraft type is sufficient to qualify for a civil commercial pilot licence and with further study, a senior commercial pilot licence. ELIGIBILITY To be eligible for appointment applicants must: a. be an Australian citizen or be eligible to become one; b. have a minimum four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level); c. meet the Army Aviation medical and dental requirements; d. meet the current security clearance and civil check requirements; e. be aged between 19 and under 28 on the date of appointment; and f. be assessed as suitable by a Selection Board. APPOINTMENT Successful applicants will be appointed for an initial period of six years with the first 12 months being a probationary period. Selected pilots may be offered a further five years appointment at the completion of the initial appointment period. Whilst undergoing training SSOs will hold the rank of Officer Cadet. Upon graduation as a pilot you will be commissioned as Lieutenant in the Australian Army." [Emphasis added.] 19 Corporal Chambers also advised Mr Bradley that in certain cases the 19-28 Rule could be waived, and suggested that Mr Bradley contact Captain Dan Cullen to discuss his position further. Captain Cullen was said to have confirmed Corporal Chambers' advice in respect of the possibility of a waiver, but was unable to confirm whether one would be offered to Mr Bradley. 20 On 6 May 1993, Mr Bradley contacted Corporal Chambers to explain his position. Corporal Chambers agreed to refer Mr Bradley's case to the officer-in-charge of aircrew arrangements, Major Power. Mr Bradley was subsequently advised by a representative of Major Power that he was ineligible for appointment to the Pilot Scheme on the ground that he was not aged between 19 and 28 years of age, and that no waiver of that requirement would be offered to him. Reference was made by Major Power's representative to a comment by the Major about the Army's ability to be selective due to the availability of suitably aged applicants. 21 On 11 May 1993, Mr Bradley made a formal complaint to the Commission, the details of which were subsequently notified to the ADF. By letter to the Commission of 10 November 1993, Wing Commander R J Johns confirmed the 19-28 Rule and the possibility, in certain cases, of having that Rule waived. In respect of such possibility the Wing Commander said: "Waiver approval may be sought for an applicant who does not meet the selection criteria (whether through age, medical fitness, etc) but who is considered to possess special skills or qualifications which may warrant waiving one or more of the initial criteria. An applicant has no entitlement to have a waiver request processed. That is a decision made by recruiting staff on the basis of vacancies and suitable applicants. Should Army be unable to fill vacant positions with applicants who meet the initial selection criteria, then the recruiting staff may seek approval from Army Office in Canberra to grant a waiver." 22 On 31 May 1994, following an unsuccessful attempt at conciliating Mr Bradley's complaint, Wing Commander Johns wrote another letter to the Commission providing "a detailed explanation of the inherent requirements of employment as a military pilot and the relationship of those requirements to the age of applicants." The relevant parts of the letter are in these terms. "Inherent Requirements of Military Flying 2. The specific purpose of the SSO pilot entry scheme, for which Mr Bradley made application, is to bring in to the Army and train personnel for employment as line pilots in one of the Aviation Regiments. The Army has no need to recruit pilots specifically for employment as flying instructors, as there is an adequate pool of pilots who have gained experience in the Regiments from which to select flying instructors at an appropriate time in their flying careers. 3. As Lieutenant Colonel Brock and I tried to explain during the course of the [conciliation] conference, military flying cannot be related to any form of civilian flying, even with the relatively adventurous type of flying that Mr Bradley has been performing. With few exceptions, military pilots are required to undertake tactical flying under combat conditions. The effect of this is that the inherent risks in the type of flying undertaken by, say, agricultural pilots are compounded several fold by the following factors involved in flying military helicopters: a. the aircraft is likely to be under direct fire from enemy forces; b. missions are carried out in relatively high performance aircraft operating close to the ground, in adverse weather and environmental conditions at any hour of day or night; c. the mission is likely to involve a number of aircraft operating together in close proximity; d. the pilot is required to maintain an awareness and appreciation of the tactical situation affecting his or her own and other aircraft; e. the pilot is operating in a multi-crew environment; f. the aircraft is likely to be carrying passengers and/or dangerous cargo; and g. the pilot can be required to live in and operate from arduous field conditions. 4. This type of flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. The training involved to enable an entrant to reach the standard required for a miliary pilot, and an Army officer in the general sense, is long and intensive in both the physical and mental demands. Relationship of Inherent Requirements to Age 5. Combat flying has been described as a young person's game. As can be seen by the description of the inherent requirements, the stresses, both physical and mental, on a combat pilot are considerable. The following factors, gained through medical data and experience in the ADF and a number of overseas military organisations, establish a direct correlation between the age of pilots and their ability to safely and effectively perform in a combat flying environment: a. Medical Fitness. A considerable bank of data is available to establish that, on a statistical basis, a high percentage of persons in the 35 year plus age bracket develop one or more medical conditions which disqualify them or severely restrict their capacity to maintain a medical flying category suitable to military aviation (common are eyesight deterioration, hearing loss, degenerative back problems, particularly in rotary wing pilots, cardiovascular disease and hypertension); b. Physical Performance. Medical data shows that, for persons in excess of 35 years of age, there is a marked deterioration in reaction time and the capacity to withstand and recover from the stresses involved in military flying; c. Training Failures. Experience in Australian and overseas armed forces has shown that mature aged qualified pilots encounter a high incidence of difficulty in 'unlearning' acquired habits and skills to adapt to the unique requirements of military aviation. Also the physical, psychological and social stresses encountered during training are such that an older entrant would be a very high risk of failure; d. Peer Group Integration. The average age of line pilots in the Army's two Aviation Regiments is around 23 years and the actual deviation from that mean is small. Consequently, someone who is almost a generation older would inevitably experience problems in integrating with that group where teamwork, mutual trust and acceptance can literally be a matter of life or death; and e. Return on Investment. Even if a person of Mr Bradley's age could meet all requirements for entry as a pilot, and successfully complete the training, the likelihood of him developing some disqualifying medical condition in the near future is very high, with the consequential effect that the Army would not recoup sufficient service from him to justify the very high cost of training. 6. The ADF, like other defence forces, does have personnel in Mr Bradley's age bracket who are employed as pilots, some of them flying high performance aircraft. But, without exception, such personnel are in managerial and supervisory positions. While they maintain currency on a particular aircraft type in order to carry out their supervisory and evaluation responsibilities, their role is not that of a line pilot whose prime task is to fly combat missions. 7. Military aviation is a hazardous and stressful occupation, with no comparable equivalent in civil aviation. Considerations of operational effectiveness and the duty of care to all personnel involved in military aviation, including non-aircrew personnel who are required to fly as passengers in military aircraft, are paramount. Such considerations, in the fact of specialist medical advice, coupled with the requirement to cost effectively employ public funds allocated for Defence, make the enlistment of 'older' personnel for pilot training an unacceptable risk." 23 After reaching a preliminary view that the ADF's refusal to consider Mr Bradley for the Pilot Scheme constituted "discrimination", the Commission conducted an inquiry into that issue on 3 and 4 February 1997. The result of that inquiry was a decision, issued by the Commission on 5 March 1997, that the 19-28 Rule was not based on the inherent requirements of the job of a military line pilot within the meaning of par (c) of the definition of "discrimination", with the result that such Rule was discriminatory. The essential parts of the Commission's reasons for this decision were as follows. "I must consider … whether the requirement that the applicant be aged between 19 and 28 years of age was an inherent requirement of the job. … The respondent argued that the complainant, being aged 37 at the time of making his application to join the pilot program, was unable to fulfil the inherent requirements of the position. … I am satisfied from the submissions put by the respondent and the oral evidence adduced at the hearing that the respondent included the stipulated age range in the application criteria as part of a genuine attempt to ensure that applicant pilots would be physiologically and psychologically equipped to complete their training successfully and that they would do so at an age where the respondent would be able to recoup its training expenditure. However, I am not satisfied that the exclusion of persons such as the complainant from employment as military line pilots based only on the fact that they fall outside the age range of 19 to 28 years is non-discriminatory on the basis that the age-bracket is an inherent requirement of the job of a military line pilot. Being within the stipulated age bracket is but one of several criteria stipulated by the Army for eligibility for the appointment. The other criteria could most probably be defended as inherent requirements… The concerns raised by the Army to justify the age criterion are arguably met by these other selection criteria, in particular the medical criterion. For this reason the age criterion is not necessary to achieve the Army's purpose in imposing the criterion. In its defence of the age criterion the respondent stated that the nature of military flying requires a high level of physical and medical fitness… There is no direct correlation between a person's age and medical fitness. In any event, the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Army's medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement. I am also not satisfied of the relevance of age to the other factors raised by the respondent. It argued that these factors established a direct correlation between the age of the pilots and their ability to perform safely and effectively in a combat flying environment. As in relation to the medical fitness requirement these other criteria are better assessed directly rather than indirectly through the arbitrary use of age as a proxy. As with medical fitness, the other criteria need to be assessed individually for all applicants… I also consider that the respondent's Assessment Board would be able to assess an applicant's suitability for 'unlearning' acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, whilst these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicant's age and the ability to meet these criteria… The respondent also argued that the age criterion is necessary to ensure the respondent's return on investment… While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position… I do accept that in some circumstances it may be appropriate to use age as a proxy. For example, it would be futile to require the respondent to assess persons below fifteen years or over seventy years for acceptance to the SSO scheme. However, it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in that age group being able to comply with the inherent requirements of the job that to require the respondent to expend resources on assessing the applicant through the selection process would be unreasonable… I am not satisfied that the exclusion of persons, such as the complainant, outside the age range of 19 to 28 years from employment as military line pilots is based on the inherent requirements of the job of a military line pilot. Accordingly, I find that the acts and practices complained of by the complainant constitute discrimination in employment based on age." 24 On 6 April 1998, the Commonwealth made an application for judicial review of the Commission's decision, alleging five errors of law. Wilcox J concluded that none of the alleged errors of law were made out and accordingly dismissed the Commonwealth's application (the reasons for his Honour's decision are reported as Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Anor (1998) 158 ALR 468). The Commonwealth has now appealed on the following six grounds. 1. That his Honour erred in holding that the Commission had correctly interpreted the phrase "inherent requirements of the job". 2. That his Honour erred in finding that "based on" requires more than a logical link and that the correlation between the distinction, exclusion or preference and the inherent requirements of a particular job must be, at least, close. 3. That his Honour erred in finding that it was not appropriate to reason that, because extreme fitness is an inherent requirement of the job of a military line pilot, and because younger pilots tend to be more fit than older pilots, therefore the 19-28 Rule is "based on" the requirement of fitness. 4. That his Honour erred in finding that the evidence before the Commission did not establish a sufficiently tight correlation between fitness to be a military line pilot on the one hand and age on the other. 5. That his Honour erred in focusing his attention on the issue of medical fitness and, in particular, on medical fitness at the time a candidate applies for appointment as a military line pilot, to the exclusion of other relevant evidence regarding the capacity of older candidates to adjust to military life and to 'unlearn' bad habits acquired during their civilian flying careers. 6. That his Honour erred in failing to take into account a relevant consideration; namely, the inherent requirement for an SSO pilot to continue to be medically fit for the whole of the proposed six-year appointment. The inherent requirements of the particular job 25 The appellant submits, as it did before Wilcox J, that the Commission erred in law by adopting a narrow interpretation of the phrase "inherent requirements" in reliance on the majority decision of the Full Court of the Industrial Relations Court in Christie v Qantas Airways Ltd (1996) 138 ALR 19. In support of this submission it relies on the decision of the High Court on appeal (Qantas Airways Ltd v Christie (1998) 193 CLR 280 ("Qantas v Christie")), in which the Full Court's decision was set aside and the narrow construction of "inherent requirements" expressly disapproved. 26 The Commission's adoption of the now disapproved construction of "inherent requirements" is argued, by the appellant, to be reflected in what it describes as the Commission's exclusive focus on the requirement that military pilots possess a high level of physical and mental fitness to the exclusion of certain other so-called "employment operational" requirements. The employment operational factors that the appellant says the Commission failed to regard as "inherent requirements" for the purpose of par (c) are: · An ability to be properly trained for the job of a military line pilot (including an ability to 'unlearn' habits and skills acquired in civilian life, and the ability to adapt to the environment of military aviation). · An ability to integrate into the ADF's Aviation Regiments. · An ability to maintain a high level of medical fitness for the duration of the six-year period of appointment. These factors appear to have been taken from the letter of Wing Commander Johns to the Commission of 31 May 1994 (extracted at par 22 above). 27 Assuming the correctness of the appellant's submission that each of these factors is an inherent requirement of the job of a trainee military line pilot, the question is whether Wilcox J was in error in finding that the Commission treated them as such, as the appellant contends. His Honour's finding in this regard was expressed (at 480) as follows. "Although Commissioner Sidoti did not have the benefit of the High Court Christie decision when he determined Mr Bradley's complaint, he did not, I think, interpret the phrase 'inherent requirements of the job' inconsistently with the view of the High Court majority. Specifically, he took account of employment operational factors. He referred to the need for SSO pilots to possess 'a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved'. The reason why he determined the complaint adversely to the Deparment of Defence was that he saw 'no direct correlation between a person's age and medical fitness'… Inferentially, he was saying the age distinction was not based onthe inherent requirements (fitness etc) of the particular job." 28 I agree with Wilcox J that the Commission did not err in the manner contended by the appellant. In particular, I do not think it failed to treat the three employment operational factors identified by the appellant as inherent requirements of the job of a trainee military line pilot for the purpose of par (c). Moreover, it is clear in my view that any focus of the Commission on the physical and mental demands of that job merely reflects the terms in which the evidence in support of the appellant's case was presented to the Commission - particularly the evidence of Wing Commander Johns, which was fundamental to the Commission's understanding of the appellant's case. 29 In my view, it is clear from a fair reading of the Commission's reasons for decision as a whole that the Commission assumed each of the three operational factors identified by the appellant (regarding the ability to be properly trained, to integrate and to maintain a high level of medical fitness) to be "inherent requirements" of the job of a trainee military line pilot under par (c), for the purpose of determining what it saw as the real issue; namely, whether there existed a direct correlation between any of those requirements and the 19-28 Rule sufficient to make the Rule non-discriminatory. That assumption is apparent from the following extracts from the Commission's reasons. "I also consider that the respondent's Assessment Board would be able to assess an applicant's suitability for 'unlearning' acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, whilst these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicant's age and the ability to meet these criteria… The respondent also argued that the age criterion is necessary to ensure the respondent's return on investment… While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position…" [Emphasis added.] 30 In these circumstances, the Commission's reliance on the decision of the Full Court of the Industrial Relations Court in Christie v Qantas Airways Ltd (1996) 138 ALR 19, in which an unduly narrow construction of "inherent requirements" was adopted, did not result in any error of law in its reasoning. It accepted - for the sake of argument at least - that each of the operational factors identified by the appellant was in fact inherent to the job of a trainee military line pilot. "Based on" 31 The appellant contends that Wilcox J should have found that the Commission had incorrectly interpreted the phrase "based on" in par (c) as requiring more than a logical connection between the distinction, exclusion or preference and the inherent requirements of the particular job. In essence the appellant's submission was as follows. · The Commission incorrectly formulated the question for determination under par (c) to be whether age is an inherent requirement of the particular job, rather than whether the 19-28 Rule is based on the inherent requirements of that job. In addition, it incorrectly held that in the present case par (c) requires a direct correlation between a person's age and the ability to fulfil the inherent requirements of the job of a (trainee) military line pilot. Existing precedent regarding the meaning of the phrase "based on" in discrimination law makes it clear, it was submitted, that all that phrase requires is a "logical connection" between the relevant distinction, exclusion or preference and the inherent requirements of the particular job, such that those requirements can be shown to have been the "true reason" for the distinction, exclusion or preference. · The Commission's incorrect formulation of the issue for determination and incorrect interpretation of "based on" resulted in the appellant being (wrongly) required to show that no person over 28 years of age, or an insignificant number of persons over 28 years of age, could perform the work of a (trainee) military line pilot. 32 Wilcox J found that whilst the Commission's formulation of the inherent requirements issue did reflect some "looseness of language", its ultimate finding was sound and showed that the correct question had in fact been addressed. His Honour considered that the Commission had inferentially found that the 19-28 Rule was not based on the inherent requirements of the job of a military pilot because there was no "direct correlation" between those requirements and a person's age. His Honour saw no error in that finding. Specifically, he agreed with the Commission that "based on" requires "more than a logical link", and held that a distinction, exclusion or preference would only escape the definition of "discrimination" in subs 3(1) if it could be shown to be "established upon" the inherent requirements of the particular job ((1998) 158 ALR 468 at 482). 33 One aspect of the reasoning of the Commission and his Honour concerning the connection between the correct formulation of the issue for determination under par (c) and the definition of "based on" should be noted at this point. It is true, as Wilcox J acknowledged, that the question asked by the Commission was whether age is an inherent requirement of the job of a military line pilot (see at par 23 above). In his Honour's view, however, such formulation had no real consequence for the Commission's ultimate decision. I agree with his Honour's view because, as will appear, I also agree with his Honour's interpretation of "based on" as requiring a tight correlation between the 19-28 Rule and the inherent requirements of the job. That interpretation has the effect of removing any significant difference between the question posed by the Commission in this case (namely, is age an inherent requirement of the job of a military line pilot?), and the question that the appellant argued should have been posed (namely, is the 19-28 Rule based on the inherent requirements of the job of a military line pilot?). The reason is that a tight or close correlation will generally only exist between a distinction, exclusion or preference and the inherent requirements of a particular job if that distinction, exclusion or preference is necessary for the fulfilment of the job's inherent requirements. The requirement that an exclusion (here the exclusion of persons aged over 28) be necessary for the fulfilment of a job's inherent requirements is effectively a requirement that the exclusion itself be an inherent requirement of the particular job. The reason is that if A (the age exclusion) is necessary for B (a high level of medical fitness), and B is an inherent requirement of a job, then A can also be viewed as an inherent requirement of the job. Hence the Commission's interpretation of "based on" as requiring a "direct correlation" permitted, in this case, a shortening of the question under par (c) from whether the 19-28 Rule is based on the inherent requirements of the particular job, to whether age is itself an inherent requirement of the particular job. Wilcox J's essential agreement with this interpretation of "based on" meant that the "looseness of language" reflected in the Commission's formulation of the question arising under (c) was of no real consequence. It is not surprising, given this connection between the Commission's formulation of the question arising under par (c) and its interpretation of the words "based on", that the appellant's submissions in respect of those issues are so intertwined. 34 The appellant contends that "based on" requires no more than a logical connection between the relevant distinction and the inherent requirements of the particular job. In support of this contention it relies upon several cases in which the expression "based on" has been considered, including Australian Iron & Steel v Banovic (1989) 168 CLR 165 (at 177 per Deane and Gaudron JJ), Australian Medical Council v Wilson (1996) 68 FCR 46 (at 58 per Heerey J and at 76 per Sackville J), and Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127 (at 137 per Northrop J and at 149 per Lindgren and Lehane JJ). In each of these cases, however, the expression "based on" appears in the central or primary part of the relevant anti-discrimination provision. The context in which the expression appears in the present case, by contrast, is materially different by virtue of the fact that par (c) is not itself a primary part of the definition of "discrimination". The authorities relied on by the appellant are therefore not applicable. 35 In determining how the expression "based on" is to be interpreted in the present context, regard must be had to the objects of the Act. The Act was introduced to be the vehicle by which Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111) are implemented (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), outline). One of the primary purposes of the Act - consistent with the purpose of the ILO Convention itself - is the promotion of equal opportunity in employment. Thus the Act is described by its short title as an Act "to make provision in relation to human rights and in relation to equal opportunity in employment". This purpose is further reflected in the range of functions conferred on the Commission, and in the requirement in s 12 that the Commission have regard, in the performance of those functions, "to the principle that every person is free and equal in dignity and rights." 36 Respect for human rights and the ideal of equality - including equality of opportunity in employment - requires that every person be treated according to his or her individual merit and not by reference to stereotypes ascribed by virtue of membership of a particular group, whether that group be one of gender, race, nationality or age. These considerations must be reflected in any construction of the definition of "discrimination" presently under consideration because, if they are not, and a construction is adopted that enables the ascription of negative stereotypes or the avoidance of individual assessment, the essential object of the Act to promote equality of opportunity in employment will be frustrated. 37 It is for this reason that I would reject the appellant's argument regarding the expression "based on" in par (c) of the definition of "discrimination". The essence of that argument is that "based on" requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the Act's object of promoting equality of opportunity in employment by, in effect, permitting the assessment of persons' suitability for a particular job on grounds other than their individual merit. The nebulousness of notions of "logic" in this area makes it an inappropriate test for discrimination. This is particularly apparent in the current context of age-based discrimination, where it is not difficult to imagine an age-based exclusion that may be logical, when considered in light of the inherent requirements of a particular job, but that is nevertheless founded upon assumptions about the capacities of a person in a particular age-bracket rather than upon the actual capacities of that person, assessed individually. What is and is not "logical" in this sense will depend largely on changing social values and perceptions. Reference to "logic" in the current context is particularly problematic given what would seem to be the relatively low public consciousness in our society of the phenomenon of age discrimination, as distinct from other forms of discrimination. For the same reason, I would reject the appellant's argument, developed during the hearing of the appeal, that the true reason or motivation for the exclusion is the relevant factor in determining whether that exclusion is non-discriminatory within par (c). The subjective intention of the alleged discriminator in excluding certain persons from employment can never be a sufficient test of whether that exclusion in fact deprives people of their right to be assessed on the basis of their individual capabilities as distinct from stereotypes ascribed by virtue of being of a particular age. 38 The view that the "logical connection" test expounded by the appellant is inconsistent with the individual assessment of persons by reference to merit is consistent with the decision of the US Court of Appeals for the Ninth Circuit in Western Airlines, Inc v Criswell (1984) 472 US 400 ("Western Airlines"). That case concerned the test for whether "age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business" under s4(f)(1) of the Age Discrimination inEmployment Act of 1967 ("ADEA"). The appellant had contended that age would be so considered if "a rational basis in fact" existed for believing that persons lacking suitable qualifications could not be individually identified. The Court rejected this contention (at 422) on the ground, amongst others, that: "The 'rational basis' standard is … inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. [Footnote: Indeed, under a 'rational basis' standard a jury might well consider that its 'inquire is at an end' with an expert witness' articulation of any 'plausible reaso[n]' for the employer's decision.] Under the Act, employers are to evaluate employees between the ages of 40 and 70 on their merits and not their age. In the BFOQ defense, Congress provided a limited exception to this general principle, but required that employers validate any discrimination as 'reasonably necessary to the normal operation of the particular business.' It might well be 'rational' to require mandatory retirement at any age less than 70, but that result would not comply with Congress' direction that employers must justify the rationale for the age chosen. Unless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job." [Footnotes omitted.] 39 The conclusion that the "subjective intention" and/or "logical connection" tests are inconsistent with the overriding object of the Act is also consistent with the International Labour Organization ("ILO") commentaries concerning the identically worded definition of "discrimination" in Art 1(2) of the ILO Convention, on which the current definition is based (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), clause 3). Those commentaries make it clear that the definition of "discrimination" is not to be interpreted restrictively, and that a distinction, exclusion or preference will only be justified by reference to the inherent requirements of a given job if it corresponds objectively and closely to those requirements, and if it takes account of individual capacities (see the ILO's General Survey: Equality in Employment and Occupation (1988)). 40 It is for these reasons that I would reject the interpretation of "based on" contended for by the appellant. In my view, the definition adopted by Wilcox J - that is, as requiring a connection that is "tight" or "close" - sits easily with the language of par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided. I therefore agree with his Honour that no error was made by the Commission in its construction of the expression "based on" for the purposes of par (c). The remaining grounds of appeal 41 These conclusions are also determinative of the third and fourth grounds of appeal. With respect of the third ground of appeal, I would merely add that I agree with Wilcox J that the "tendency" of younger pilots to be fitter than older pilots would not be sufficient to establish the requisite correlation between the 19-28 Rule and the inherent requirement that trainee military line pilots possess a high level of fitness. As his Honour held (at 482): "[I]t is not appropriate to reason that, because extreme fitness is an inherent requirement of the job of an SSO pilot, and younger pilots tend to be more fit than older pilots, therefore the requirement that SSO pilots be under 28 years of age on appointment is 'based on' the requirement of fitness. Unless there is an extremely close correlation between the selected age and the fitness requirement, so that the age may logically be treated as a proxy for the fitness requirement, the legislation will have the effect of damning individuals over 28 years by reference to a stereotypical characteristic (less physical fitness) of their age group." 42 In its fifth ground of appeal, the appellant claims that the primary judge erred in focusing attention on the issue of medical fitness and, in particular, on medical fitness at the time Mr Bradley applied for appointment as a trainee military line pilot, to the exclusion of other relevant evidence regarding the capacity of older candidates to adjust to military life and to "unlearn" habits acquired during their civilian flying careers. This ground must also be rejected. Questions concerning an older applicant's suitability for "unlearning" acquired habits and skills, and for peer group integration, were raised before Wilcox J under one of the "no evidence" grounds upon which the appellant sought judicial review. His Honour specifically dealt with this ground, noting that the evidence before the Commission amply supported the conclusion it had reached. 43 The sixth ground of appeal also lacks substance when regard is had to the issues raised by the grounds upon which judicial review was sought. In any event, the Commission's reasons, read as a whole, and particularly its references to the Army's return on investment in training, show that the Commission did not fail to take into account this aspect of the matter. Conclusion 44 The appeal should be dismissed with costs. I certify that the preceding forty-four (44) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice.