Discrimination Legislation - Sex Discrimination Act 1984 - Home Purchase or Sale Expenses Allowance provided to certain Australian Defence Force personnel pursuant to Determination 0509 - allowance only provided to service personnel with dependent family - whether unmarried appellant discriminated against on the basis of marital status - whether criteria of Determination inherently or essentially discriminatory - s. 58B Defence Act 1903.

Administrative Law - review of decision of Human Rights and Equal Opportunity Commission - error of law.

Sex Discrimination Act 1984

Defence Act 1903

Federal Court of Australia Act 1976

Administrative Decisions (Judicial Review) Act 1977

R M Henderson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for First Respondent: J Baston

Solicitors for First Respondent: M Chalmers (Human Rights

and Equal Opportunity Commission)

The Second Respondent appeared in person.

1. The decision of the Human Rights and Equal Opportunity Commission declaring that the Commonwealth had engaged in conduct rendered unlawful by the Sex Discrimination Act 1984, and declaring that the Commissioner should not repeat or continue such unlawful conduct, and declaring that the Commonwealth should reappraise as soon as possible the application made by Michael Dopking and make an appropriate payment to him, be set aside;

2. The matter be remitted to the Human Rights and Equal Opportunity Commission for consideration of the alternative case presented by Michael Dopking in relation to s. 6(2) of the Sex Discrimination Act 1984;

3. The costs of the Commonwealth of the proceeding in this Court be paid by the Human Rights and Equal Opportunity Commission; and that otherwise there be no order as to costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ This is an application by the Commonwealth of Australia for an order of review under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 of a decision made by the Human Rights and Equal Opportunity Commission under s. 81 of the Sex Discrimination Act 1984 (Cth) ("the Act"). The Commission was constituted by its President, the Hon Sir Ronald Wilson. The application was heard by a Full Court in accordance with a direction given under s. 20(1A) of the Federal Court of Australia Act 1976.

2. The facts and the relevant provisions of the Sex Discrimination Act are set out in the reasons for judgment of Lockhart J which I have had the advantage of reading.

3. The decision of the Commission in respect of which this proceeding is brought was made by way of determination of a complaint made to it by the second respondent, Michael Dopking, concerning the application of a determination made under s. 58B of the Defence Act 1903. The determination in question is Determination 0509, which provides for an allowance to be paid in certain circumstances to assist members of the Australian Defence Force who buy or sell a dwelling as a consequence of a posting from one locality to another. The allowance is called the Home Purchase and Sale Expense Allowance, ("HPSEA") and it covers solicitors' fees and disbursements, estate agents' commission, advertising costs and some other items. The relevant provisions of HPSEA are set out in the reasons for judgment of Lockhart J.

4. Mr Dopking is a member of the Royal Australian Air Force who, in 1988, was posted to Townsville where, after living in Service accommodation for a short time, he bought a house. He applied for HPSEA in respect of the purchase of his house but his application was rejected. Mr Dopking claimed, and the Commission found, that his application was rejected by reference to clause 17 of Determination 0509 which provides that:

"An allowance is not payable to a member without a family in

respect of the purchase of a dwelling house unless Service

accommodation is not available and is unlikely to be available in

the immediate future in the locality."

5. Service accommodation was available in the locality and the allowance was refused because Mr Dopking was a "member without a family" and, as such, ineligible for HPSEA in the circumstances. The expression "member without a family" is defined in Determination 0509 to mean "a member other than a member with a family". The expression "member with a family" is defined as "a member with whom one or more of the members of his or her family normally reside" (my emphasis). "Family" is itself defined to include various categories of people "who normally reside with the member" including a spouse of the member or a child. "Family" is defined in such a way that persons who fall within the definition may not be related in a familiar sense to the member.

6. Mr Dopking, whose marital status is that of being single, complained to the Commission that the application of Determination 0509 in his case discriminated against him as a single person and was in breach of s. 14 of the Act. Section 14 makes it unlawful for an employer to discriminate against a person in the terms or conditions of employment on the ground, amongst others, of a person's marital status.

7. The Commission found that Mr Dopking had suffered unlawful discrimination by reason of s. 6(1)(b) and s. 14 of the Act in being refused an allowance under Determination 0509. It found that to deny eligibility for HPSEA to Mr Dopking was, in the circumstances, to treat him less favourably than Determination 0509 treated married personnel accompanied by spouses.

8. As Lockhart J has pointed out, it is Determination 0509 that holds the key to this case since what done was simply to apply the determination according to its terms to the application for HPSEA made by Mr Dopking.

9. I turn first to the question whether the President was in error in concluding that, in the application of Determination 0509 to Mr Dopking's claim for the allowance, the Commonwealth discriminated against him "by reason of" a characteristic that appertains generally to persons of the marital status of Mr Dopking, that is, persons who are single.

10. The characteristic within s. 6(1)(b) of the Act that was identified by the President in his first decision was that of being a "member without a family" for the purposes of Determination 0509, which the President found was plainly a characteristic that "appertains generally" to single persons although it would not apply in every case. In his second decision the President made reference to "not being part of a household" as the relevant characteristic but I think it clear from the context that the President was not identifying a different characteristic and was still intending to refer to the characteristic of being a "member without a family" for the purposes of Determination 0509. That characteristic has a precise content derived from the definition provisions of Determination 0509 but that fact does not disqualify it as a characteristic that appertains generally to persons of a particular marital status. It is of course true that people whose marital status is that of being single, as opposed to being married but living separately and apart from a spouse or being divorced (see the definition of "marital status" in s. 4(1)), may have a member of a "family" normally residing with them. The President recognised that the characteristic would not apply in every case but noted that it was sufficient to conclude that it will generally be the case. A relevant characteristic having been found by the President to be a "member without a family" for the purposes of Determination 0509 and having regard to the finding that Mr Dopking's application for the allowance was rejected by reference to clause 17 of Determination 0509, I see no basis for saying that the President was in error in concluding that Mr Dopking was denied the allowance "by reason of" a characteristic that appertains generally to persons of his marital status.

11. It was submitted on behalf of the Commonwealth that the President was in error in determining that the circumstances applying to Mr Dopking were the same or were not materially different from those applying to other members of the Australian Defence Force who were eligible for and had been granted the allowance in question. I agree with Lockhart J and with Wilcox J that this submission should be rejected. As the President said in the passage to which Lockhart J and Wilcox J have each referred, it would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment could be seized upon as rendering the overall circumstances materially different.

12. It was also submitted on behalf of the Commonwealth that, having regard to the totality of benefits available to members without a family, the President was in error in concluding that in the application of Determination 0509 to Mr Dopking's claim for HPSEA he was treated "less favourably" than someone of a different marital status. Reliance was placed upon the evidence that there were perceived advantages for one group and perceived advantages for the other and it was said that it was necessary to look at the totality of relevant conditions. I agree with Wilcox J, for the reasons he gives, that this submission should be rejected. I would add that any contrary conclusion would tend to undermine rather than promote the objects of the Act because it would allow differential treatment to be legitimised by the provision of financial or other offsets for the claimed detriment.

13. I now come to the other aspect of the question whether Mr Dopking was treated less favourably than the Commonwealth treated or would treat a person of a different marital status. It was submitted by the Commonwealth that Mr Dopking was not treated less favourably than a person of a different marital status because it was a condition of eligibility for HPSEA that a member normally reside in the dwelling in respect of which the allowance was payable with a member of his or her "family" and that married and single people would alike be excluded if they did not have a family member with them. On the other hand, it was submitted, single and married people would alike be eligible for HPSEA if a member of their family normally resided in the dwelling with them.

14. It is important to bear in mind the nature of the characteristic by reason of which Mr Dopking is said to have been treated less favourably than a person of a different marital status. The essence of that characteristic is that there is no member of a family, as defined, who normally resides with him. It may be granted that some other single people do have a member of a "family" who normally resides with them but this is beside the point as far as Mr Dopking's claim to have suffered discrimination is concerned; the relevant characteristic is one that the Commission found to appertain generally to single people and it was by reason of that characteristic that the allowance was denied to Mr Dopking.

15. Marital status is defined by s. 4(1) of the Act to mean (not to include) any one of six conditions, namely the condition or status of being single, married, married but living separately and apart from one's spouse, divorced, widowed or the de facto spouse of another person. In this context it is clear that, in the furtherance of the object of eliminating so far as possible discrimination on the ground of marital status in the area of employment and elsewhere, s. 6(1) looks to the way in which the discriminator treats or would treat a person of any different marital status to that of the aggrieved person. Given the objects of the Act it could hardly provide otherwise.

16. It is convenient to take first the case of a married person as being a person of a different marital status for the purposes of the comparison that s. 6(1) requires. Whilst it is true that s. 6(1) does not make reference, for this purpose, to any characteristic that appertains generally or is generally imputed to persons of the different marital status, the requirement for there to be a comparison with treatment that occurs by reason of status or of a characteristic appertaining or imputed to persons of a particular status suggests that at least the essential nature of the different marital status should not be ignored in determining whether an aggrieved person is treated less favourably than a person of that different marital status. To approach the matter in this way is not, in my view, to read s. 6(1) unduly widely so as to trespass on ground exclusively occupied by s. 6(2), with its important limitation in s. 6(2)(b), or otherwise to ignore the presence of s. 6(2): see Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 175 per Deane and Gaudron JJ.

17. If then a married person is taken as being the relevant comparator, the obvious matters to be observed are that the person will have a spouse and that it is in the nature of the condition or status of being a married person (as opposed to a person who is single or is married but is living separately and apart from his or her spouse, to take two of the conditions within the definition of marital status in s. 4(1)) that the person will ordinarily reside with his or her spouse.

18. In the application of Determination 0509 to a single person such as Mr Dopking on the one hand and a married person on the other, differences in treatment will occur even when, by the operation of clause 16 of Determination 0509, a member with a family will not be entitled to HPSEA because the member is not accompanied by his or her family on the posting or when, for whatever reason, the member does not reside in the relevant dwelling with one or more member of his or her family (see clause 9(d)). In such a situation neither a single person such as Mr Dopking nor a married person with a family will be entitled to the allowance. An important difference between them however is that because Mr Dopking is a member without a family he could not become entitled to the allowance unless he either changed his marital status so as to become married or to become a de facto spouse or unless he otherwise changed his circumstances so as to acquire a family. On the other hand, a married person, by virtue of the very nature of his or her marital status (not being the defined status of being "married but living separately and apart from one's spouse") will in the ordinary case already have a "family" for the purposes of Determination 0509 and eligibility for the allowance will most likely depend upon the exercise of a choice by the parties to the marriage as to whether they will move together to the locality of the posting and will live together in a particular dwelling. It may be that, in the circumstances of a particular posting, a member and his or her spouse will decide for good reason that the spouse will not accompany the member on the posting, but that is still a matter of choice; it will always be impossible for a single person such as Mr Dopking to qualify for the allowance without either changing his marital status or making very significant changes to the way in which he lives, changes such as would involve him in acquiring a "family".

19. If the comparator status is to be the status of being the de facto spouse of another person it is not necessary to make an assumption about the essential nature of the comparator marital status insofar as it concerns the residence together of the parties to the relationship. This is because the expression "de facto spouse" is itself defined in s. 4(1) to mean, in relation to a person:

". . .a person of the opposite sex to the first-mentioned person

who lives with the first-mentioned person as the husband or wife

of that person on a bona fide domestic basis although not legally

married to that person;" (My emphasis).

20. Although periods of separation would not of themselves result in a person ceasing to be a de facto spouse for the purposes of the definition, the definition of de facto spouse, and thus the marital status of being a de facto spouse as recognised by the Act, involves that the parties to the relationship live with each other.

21. The disadvantage that a single person such as Mr Dopking faces in relation to the allowance is that whereas a person who is married or who is a de facto spouse will, by virtue of the essential nature of their marital status, ordinarily be in a position to fulfil the "family" requirements for eligibility for HPSEA, a single person in Mr Dopking's situation is not in such a position and cannot get himself in such a position without a change in his marital status or a change in his position such that he acquires a "family". The terms of Determination 0509 thus place a barrier in the path of an aggrieved single person without a family who seeks the allowance but place no such barrier in the path of a person of the different marital status of being married or of the different marital status of being the de facto spouse of another person. In this way, in my opinion, Mr Dopking was by reason of a characteristic appertaining generally to persons of his marital status, treated less favourably in circumstances that were the same or were not materially different from the way in which the Commonwealth, in the application of Determination 0509, would treat a person of a different marital status.

22. In these circumstances I consider that the Commission was not in error in deciding that Determination 0509 in its application to Mr Dopking's claim for HPSEA involved that the Commonwealth had engaged in conduct rendered unlawful by the Sex Discrimination Act 1984. I would therefore dismiss the application for an order of review. The Commonwealth should pay the costs of the Commission and of Mr Dopking.

23. I have not found it necessary to outline the Service reasons why Determination 0509 is framed in the way it is as those reasons do not bear upon the case made against the Commonwealth under s. 6(1) of the Act. Those reasons would require examination if no case was made under s. 6(1) and it became necessary to consider whether the case was one of indirect discrimination within s. 6(2). In that event there would be questions whether, to obtain the benefit of HPSEA, Mr Dopking was required to comply with a requirement or condition with which a substantially higher proportion of persons who were not of the same marital status as Mr Dopking complied or were able to comply (s. 6(2)(a)) and whether the requirement or condition was one which was not reasonable having regard to the circumstances of the case (s. 6(2)(b)). The reasons would also of course require examination if an exemption were sought from the Commission under s. 44 of the Act.

LOCKHART J In this application, under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"), the Commonwealth seeks a review of a decision made under s. 81 of the Sex Discrimination Act 1984 (Cth) ("the Act") by the Human Rights and Equal Opportunity Commission ("the Commission"), constituted by its President. The application was heard by a Full Court of the Court pursuant to a direction of the Chief Justice made under s. 20(1A) of the Federal Court of Australia Act 1976.

2. There are three respondents: the Commission is the first respondent; Michael Dopking, whose complaint to the Commission is the genesis of this proceeding, is the second respondent: Lance Thomas, another complainant to the Commission, is the third respondent. As Mr Thomas was not served with this application for review no relief is sought against him at this stage. Accordingly, the proceeding was stood over generally by the Court as against the third respondent with liberty to restore to the list; so the case proceeded only against the Commission and Mr Dopking. The Commission was represented before us by counsel; Mr Dopking appeared for himself and adopted the argument of counsel for the Commission.

3. Mr Dopking, a member of the Australian Defence Force, complained to the Commission that the policy of the Commission with respect to the provision of certain benefits in relation to relocation of members of the Defence Force, discriminated against members whose marital status is single and is in breach of s. 14 of the Act. The Commission found that Mr Dopking's complaint was substantiated, and, pursuant to s. 81(1)(b) of the Act, made the following determinations:

. declared that the Commonwealth had engaged in conduct rendered

unlawful by the Act and should not repeat or continue such

unlawful conduct;

. declared that the Commonwealth should re-appraise the application

made by Mr Dopking in light of the Commission's findings and make

an appropriate payment to him to compensate him for the financial

disadvantage he has suffered as a result of its unlawful act; and

that the Commonwealth should carry out this re-appraisal as soon

as possible.

4. It is from this decision of the Commission that the present proceeding under the ADJR Act was brought.

5. At all material times Mr Dopking was single with no dependants. In November 1988 he was posted by the Royal Australian Air Force to Townsville where he took up residence in accommodation provided for him by the Defence Force at the RAAF base in Townsville. In December 1988 he purchased and moved into a house in Townsville. In January 1989 he applied to the Department of Defence for reimbursement of costs associated with the purchase of the house, the application being for what is described as a Home Purchase or Sale Expenses Allowance ("HPSEA"), which is an allowance provided to certain members of the Defence Force pursuant to what is known as Determination 0509. The application was rejected pursuant to clause 17 of Determination 0509 on the ground that Mr Dopking did not qualify for the allowance because he was a "Member without Family".

6. Determination 0509 was made pursuant to s. 58B of the Defence Act 1903 which empowers the responsible Minister, by instrument in writing, to make determinations, not inconsistent with the Act, providing for and in relation to, inter alia, the payment of allowances or other pecuniary benefits, not being allowances or benefits by way of remuneration, to or in respect of members of the Defence Force (s. 58B(1)(b)). The purpose of HPSEA is to assist certain members of the Defence Force to purchase or sell a home as a consequence of a posting from one locality to another within Australia. This allowance covers solicitors' costs and disbursements, estate agents' commission and advertising costs, stamp duty and other government fees and housing loan insurance.

7. The material provisions of determination 0509 are as follows:-

"2. In this Determination, unless the contrary intention appears -

... 'family', in relation to a member, means one or more of the

following persons who normally reside with the member:

(a) the spouse of the member;

(b) a child;

(c) where the member is widowed, unmarried or permanently separated, or

where the member's spouse is invalided - a person

acting as a guardian or housekeeper to a child;

(d) any other person approved by an approving authority

...

'member with a family' means a member with whom one or more of the

members of his or her family normally reside;

'member without a family' means a member other than a member with a

family; ...

7. The approving authority shall, in respect of an approval under -

(a) clause 2, have regard to -

(i) the financial position of the person;

(ii) the degree of illness or infirmity of the person;

(iii) the degree of dependency of the person on the member;

(iv) the role that the person plays in the member's household; and

(v) the relationship of the person to the member;

...

16. Where, in respect of a posting for long term duty, a member with a

family -

(a) is not accompanied by his or her family on that posting for reasons

other than Service reasons and his or her family

remain in the locality to which the member

was granted a removal in respect of his or

her previous posting; or

(b) is not accompanied by his or her family on

that posting and the member is granted a

removal to a locality,

the member is not entitled to an allowance in

respect of the purchase of a dwelling in that

locality.

17. An allowance is not payable to a member

without a family in respect of the purchase of a

dwelling unless Service accommodation is not

available and is unlikely to be available in the

immediate future in the locality.

20. An allowance is not payable to a member

without a family in respect of the sale of a

dwelling unless, at the time the dwelling was

purchased, Service accommodation in the locality

was not available to the member."

8. The Act prohibits discrimination of various kinds including discrimination on the ground of "marital status". Section 3 recites the objects of the Act and they include as object (b):

"(b) To eliminate, so far as possible,

discrimination against persons on the

ground of ... marital status ... in the

areas of work, accommodation, ..."

9. The expression "marital status" is defined in the interpretation section, s. 4, as meaning:

"The status or condition of being -

(a) single;

(b) married;

(c) married but living separately and apart from one spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person;"

10. Section 14(2) provides:-

"14(2) It is unlawful for an employer to discriminate against an

employee on the ground of the employee's ...

marital status ... -

(a) in the terms or conditions of employment that the employer

affords the employee;

(b) by denying the employee access, or limiting the

employee's access, to opportunities for promotion,

transfer or training, or to any other benefits associated

with employment;

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment."

11. Section 6(1) provides, so far as is presently relevant:

"6(1) For the purposes of this Act, a person (in

this sub-section referred to as the

'discriminator') discriminates against another

person (in this sub-section referred to as the

'aggrieved person') on the ground of the marital

status of the aggrieved person if, by reason of-

(a) the marital status of the aggrieved person;

(b) a characteristic that appertains generally

to persons of the marital status of the

aggrieved person; or

(c) a characteristic that is generally imputed

to persons of the marital status of the aggrieved person,

the discriminator treats the aggrieved person

less favourably than, in circumstances that are

the same or are not materially different, the

discriminator treats or would treat a person of

a different marital status."

12. The Commission rejected the Commonwealth's argument that the different treatment accorded to Mr Dopking was because he is a "member without a family" within the meaning of Determination 0509 and not because he is single. It was argued that Mr Dopking would have been eligible to receive the allowance without having to produce a marriage certificate or otherwise sacrifice his single status provided that he had another person sharing the house with him to satisfy the definition of "family" under the Determination. The Commission rejected this argument on the ground that it neglected to mark the significance of paragraphs (b) and (c) of s. 6(1) of the Act. The Commission said:

"It is not only 'marital status' to which regard

must not be had, but also 'a characteristic that

appertains generally to or is generally imputed

to persons of the marital status' of the

complainant. Not being part of a 'household' is

a characteristic that appertains generally to

persons of single status, thereby as a matter of

generality rendering single persons ineligible

to receive the allowance. In the present case,

that characteristic of not being part of a

household attached to Mr Dopking, thereby

rendering him ineligible to receive the

allowance."

13. The second submission advanced by the Commonwealth to the Commission was that Mr Dopking was not treated less favourably than the Defence Force would treat a person of a different marital status. It was argued that a member's eligibility for HPSEA should not be viewed in isolation, but must be put in the context of the "overall package" provided by the Defence Force. Packages were available to "members with family" and to "members without family". The major areas of difference between the two fall within the levels of subsidies. Members without family are subsidized for both food and accommodation as a basic entitlement, whereas members with family may be subsidized for accommodation only or receive assistance with home purchase under the HPSEA scheme.

"The relative desirability of one set of living

arrangements vis-a-vis another is ultimately a

subjective question on which individual

preferences may reasonably differ from person to

person.

Mr Dopking obviously prefers to occupy his own

accommodation off base. I find that to deny him

eligibility for the HPSEA allowance in those

circumstances was to treat him less favourably

than the Determination 0509 treated married

personnel accompanied by spouses."

15. The third argument advanced to the Commission by the Commonwealth was that the Act had no application in the circumstances of this case because the circumstances governing members with a family and members without a family are so different. Counsel for the Commonwealth emphasized the depth of a relationship that might reasonably characterize a household by employing the word "dependency"; and argued that dependency implied much more than financial dependency and described the deep attachment that ordinarily exists between spouses as emotional dependency. There can be no comparison with a member living alone because the two circumstances are so materially different. The Commission said that this argument served to expose the "key role" that marital status plays in the circumstances.

"The more immediate question is the meaning to

be attributed on its proper construction to the

phrase 'in circumstances that are the same or

are not materially different'. It would fatally

frustrate the purposes of the Act if the matters

which it expressly identifies as constituting

unacceptable bases for differential treatment

(i.e. s. 6(1)(a) (b) and (c)) could be seized

upon as rendering the overall circumstances

materially different, with the result that the

treatment could never be discriminatory with the

meaning of the Act. I reject such a

construction."

16. The Commission then found that Mr Dopking was denied HPSEA by reason of a characteristic that appertained generally to persons of his marital status, namely, that he does not belong to a "household" and that by that denial he was treated less favourably than "the others", the others being a Sergeant Taylor and Staff Sergeant Formas. Sergeant Taylor was married with children and Staff Sergeant Formas was married without children. Both persons had relocated to Townsville - Sergeant Taylor was accompanied by his spouse and children and Sergeant Formas was accompanied by his spouse. Initially, all three members occupied service accommodation, but subsequently each purchased his own home. In these circumstances Staff Sergeant Taylor and Staff Sergeant Formas were eligible to receive the allowance but Mr Dopking was not. Mr Dopking attributed the distinction to the fact that he is a single person whilst the Defence Department characterized it as arising because he is not a "Member with Family" within the meaning of the Determination.

17. It is for these reasons that the Commission found that the complaint of Mr Dopking was substantiated.

18. Substantially the same arguments which were put by the parties to the Commission were put to this Court, in oral argument and written submissions.

19. Although Mr Dopking's complaint to the Commission was against the rejection of his application for HPSEA, it was also in substance a challenge to Determination 0509 itself because it is accepted by the parties that the decision rejecting his application was in accord with the Determination and made with the intention of applying it. It was not argued, however, that the Determination was itself invalid, so I shall not pause to consider the question of its validity and shall confine my reasons to the actual decision rejecting the application of Mr Dopking. However, I note that the Act is intended to apply to and to prohibit conduct of persons notwithstanding that it may directly comply with other federal legislation unless that legislation is specifically excluded from the operation of the Act by sections in Division 4, notably, s. 40 or unless an exemption from the operation of the relevant provisions of the Act is granted by the Commission under s. 44. This is plain from the terms of s. 40 of the Act in its initial form (in particular the last part of sub-s (2)) which read as follows:

"40(1) Nothing in Division 1 or 2 affects anything done by a person in

direct compliance with -

(a) any other Act, any State Act, or any law of a Territory, in force

at the commencement of this Act;

(b) a regulation, rule, by-law, determination or direction in force at

the commencement of this Act made under an Act, State Act or law of a

Territory;

(c) a determination or decision of the Commission;

(d) an order of a court; or

(e) an order or award of a court or tribunal having power to fix

minimum wages and other terms and conditions of employment.

(2) Except in relation to the operation of -

(a) the Social Security Act 1947;

(b) the Compensation (Commonwealth Government Employees) Act 1971;

(c) the Repatriation Act 1920;

(d) the Seamen's War Pensions and Allowances Act 1940; and

(e) the Papua New Guinea (Members of the Forces Benefits) Act 1957,

paragraphs (1)(a) and (b) shall, except to the

extent that regulations made for the purposes of

this sub-section otherwise provide, cease to be

in force at the expiration of 2 years after the

commencement of this Act."

20. For a person to engage in discriminatory conduct on the ground of marital status, he or she must "by reason of" the marital status (or other characteristics appertaining or imputed to persons of that marital status) treat the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of a different marital status.

21. In The Human Rights And Equal Opportunity Commission v Mount Isa Mines Limited, 9 November 1993, unreported, a Full Court of this Court (Black CJ, Lockhart and Lee JJ) considered questions which arose under the Act and the relationship of the Act to the National Occupational Health and Safety Commission Act 1985 (Cth). Certain questions of interpretation of sections of the Act are common to both Mt Isa and this case. In my reasons for judgment in Mt Isa I made the following (amongst other) findings which bear on the present case (they are fairly extensive, so I shall recite the key passages only, but reference to all my reasons dealing with the interpretation of ss. 5(1) and 14(2) of the Act is necessary):

"In my opinion the phrase 'by reason of' in s.

5(1) of the Act should be interpreted as meaning

'because of', 'due to', 'based on' or words of

similar import which bring something about or

cause it to occur. The phrase implies a

relationship of cause and effect between the

marital status (or characteristic of the kind

mentioned in s. 6(1)(b) or (c)) of the aggrieved

person and the less favourable treatment by the

discriminator of that person."

"inquiries into whether there has been a

contravention of ... (the Act) are

straightforward factual inquiries ..."

"In my view the Act requires that when an

inquiry is being held into alleged

discrimination prohibited by s. 14(2) on the

ground of marital status of an employee, all the

relevant circumstances surrounding the alleged

discriminatory conduct should be examined. The

intention of the defendant is not necessarily

irrelevant. The purpose and motive of the

defendant may also be relevant. The law draws

distinctions between the concepts of intention,

motive and purpose for various purposes, some of

which were adverted to by Lord Goff in Eastleigh

at 773. In some cases they may be central to

the case. An obvious example is where a man

refuses to employ women because he does not like

women. In other cases, of which Birmingham and

Eastleigh are examples, intention, motive or

purpose may be of little, if any, relevance. A

public authority may have a policy which

determines its conduct such as the criterion

adopted in Eastleigh admitting women free of

charge to the leisure centre if they were over

60 but not admitting men free of charge until

they reached the age of 65. In that case, the

criterion was so essentially discriminatory in

its nature that evidence of the Council's

intention, motive or purpose would have added

little or nothing to save the policy from

inevitable conflict with the Sex Discrimination

ct 1975 (UK). That is the view which the

majority of the House of Lords adopted. But

that does not render evidence of intention or

motive necessarily irrelevant, though it would

bear strongly on its weight.

. Thus, in some cases intention may be critical;

out in other cases it may be of little, if any,

significance. The objects of the Act would be

frustrated, however, if sections were to be

interpreted as requiring in every case proof of

ntention, motive or purpose of the alleged

discriminator: see Waters per Mason CJ and

Gaudron J at 359."

. "The search for the proper test to determine if

a defendant's conduct is discriminatory is not

advanced by the formulation of tests of

objective or causative on the one hand and

subjective on the other as if they were

rreconcilable or postulated diametrically

opposed concepts. The inquiry necessarily

assumes causation because the question is

whether the alleged discrimination occurs

because of the conduct of the alleged

discriminator; and the inquiry is objective

because its aim is to determine on an

examination of all the relevant facts of the

case whether discrimination occurred. This task

may involve the consideration of subjective

material such as the intention or even motive,

purpose or reason of the alleged discriminator;

but its significance will vary from case to case

and generally would be expected to diminish in

cases such as Eastleigh and the present case

where the policy of an official body has been

formulated and is faithfully applied by the

decision maker and where generally there will be

little room for questions of intent, motive or

purpose or reason save that the intent of the

decision maker doubtless is to give effect to

the policy. Objective, causative and subjective

are well known expressions in various branches

of the law but must be used with caution as they

can lead to polarization of thought. If an

objective test requires the exclusion of the

intention, state of mind, purpose, reason or

motive of the alleged discriminator then it

offends the language of the section itself (as

Lord Lowry pointed out in a similar context in

Eastleigh at 779-780) and in addition offends

common sense. It seems obvious to me that the

search for the reason for or ground of the

decision or conduct of the alleged discriminator

must take the inquiry into the state of his mind

as well as an analysis of his own acts."

. "Difficulties may arise in some cases where the

alleged discriminator adopts more than one

ground or reason for the alleged discriminatory

action. ... the marital status must be a

material ground of the discriminatory conduct."

. "Ultimately the question must be decided by

determining whether there is a relationship of

cause and effect between the marital status (or

characteristic of the kind mentioned in s.

5(1)(b) or (c) of the Act) of the aggrieved

person and the less favourable treatment of that

person, but I do not accept that this inquiry

necessarily rejects the motive, intention or

purpose of the alleged discriminator."

. I am not attracted by the proposition (which

appears to have been favoured by the majority of

the House in Eastleigh) that the correct test

involves simply asking the question what would

the position have been but for the sex (or

marital status) of the complainant. Provided

the "but for" test is understood as not

excluding subjective considerations (for

example, the motive and intent of the alleged

discriminator) it may be useful in many cases;

but I prefer to regard it as a useful checking

exercise to be engaged in after inquiring

whether in all the relevant circumstances there

has been discriminatory conduct."

. "Anti-discrimination legislation must be

understood not only by statutory bodies that

enforce it but also by all sections of the

community because the implications and effects

of the legislation touch us all. It is

important that the legislation is not approached

and construed with fine and nice distinctions

which will not be comprehended by any except

experts in the field; nor is there any need for

them."

22. My remarks in Mt Isa with respect to s. 5(1) of the Act are also relevant to s. 6(1) with which this case is concerned; so is what I said in that case concerning s. 14(2).

23. In the present case an examination of the intention, motive or purpose of the relevant officers of the Defence Force who made the decision refusing HPSEA to Mr Dopking, though not irrelevant, does not carry the matter very far because they simply applied the text of Determination 0509 to Mr Dopking; so that, if the criteria on which that determination is founded are inherently or essentially discriminatory, the decision unfavourable to Mr Dopking will be unlawful. It is the determination itself which holds the key to the case.

24. Entitlement to HPSEA is based on a member of the Defence Force being a "Member with a Family" as defined by clause 2 of Determination 0509, the word "family" having the extended definition attributed to it by clause 2 and not being disentitled under clause 16. The member of the Defence Force must therefore be a person with whom one or more of the members of his or her family normally resides; but "family" may include persons who are not necessarily related to the member in a familial sense; for example, a person acting as a guardian or housekeeper to a child; or a person approved by "an approving authority", the criteria for the determination of which are specified in clause 7 and do not necessarily involve a familial link with the member. HPSEA does not render a member ineligible for the allowance by reason of his or her being single or being within any of the other categories of "marital status" as defined by s. 4. A member may be single yet have normally residing with him or her someone answering the description of "family" for the purposes of the determination. So it cannot be said that Mr Dopking was the subject of discrimination by reason of his marital status as a single person.

25. In this case s. 6(1) requires the comparison to be made between Mr Dopking as a person with the characteristic mentioned in paragraph (b) or (c) of sub-s. (1) and a person of a different marital status. There is no extension of that other person's marital status for the purposes of the section. In other words, the comparison is not made with a person having a characteristic that appertains generally to or is generally imputed to persons of another marital status; it is made with a person of a different marital status - for example a married person.

26. HPSEA is not available to a member of the Defence Force because he or she has a particular marital status. The allowance is available to a member of the Defence Force with whom a person normally resides who both falls within the definition of "family" in clause 2 of the Determination and accompanies the member to the relevant posting (clause 16). It is not available even if a person who normally resides with the member does not on the particular occasion accompany the member to his or her posting (clause 16). Whether the member's marital status is single, married, married but living separately and apart from his or her spouse, divorced, widowed or de facto spouse (s. 4(1) of the definition of Marital Status), unless the member is accompanied by a person who normally resides with him or her and falls within the extended definition of "family" in clause 2 of the Determination, the allowance is not available.

27. The reason why a member of the Defence Force is entitled to HPSEA or is treated more favourably than others is because the member is accompanied by a person who normally resides with him or her and falls within the extended definition of "family". It is not the marital status of the person who is treated more favourably that determines the more favourable treatment, but the fact that, whatever that person's marital status is, he or she has one or more "family" members normally residing with him or her who in fact accompanies the member to the new posting.

28. It is helpful to look at the circumstances in which the alleged discrimination took place against Mr Dopking. I referred earlier to the facts relating to the transfer to Townsville of Mr Dopking, Sergeant Taylor and Staff Sergeant Formas, the marital status of each of them and the history of their accommodation in Townsville. Sergeant Taylor and Staff Sergeant Formas were entitled to the allowance because in the case of the former he was accompanied by his wife and three children, and in the case of the latter, by his wife. Had Sergeant Taylor or Staff Sergeant Formas not been accompanied to Townsville then neither of them would have been eligible for HPSEA. Had Mr Dopking been accompanied by a person who had been approved by the Commonwealth under clause 7 of the Determination he would have been eligible for consideration for HPSEA. This exemplifies the point made earlier that it is not marital status or characteristics appertaining to a marital status that determine the availability of HPSEA, but the fact that a member of the Defence Force is accompanied by a person falling within the definition of "family" in clause 2 of the Determination who normally resides with him or her and that such person accompanies the member to the posting concerned.

29. In my opinion it has not been established that Mr Dopking's treatment has been less favourable, in circumstances that are the same or are not materially different, than the treatment of other members of the Defence Force of a different marital status.

30. Before leaving the matter I should say that I reject the argument of the Commonwealth that the matters which the Act specifies as constituting unacceptable bases for differential treatment (i.e. s. 6(1)(a), (b) and (c)) can be relied upon to support an argument that the circumstances are not the same or are materially different. I agree with the President of the Commission that:

"It would fatally frustrate the purposes of the

Act if the matters which it expressly identifies

as constituting unacceptable bases for

differential treatment (i.e. s. 6(1)(a), (b) and

(c)) could be seized upon as rendering the

overall circumstances materially different, with

the result that the treatment could never be

discriminatory within the meaning of the Act."

31. Mr Dopking also relied on s. 6(2) of the Act before the Commission; but the President of the Commission did not deal with s. 6(2) because of his view about s. 6(1). I agree with Wilcox J that the matter should be remitted to the Commission so that it may consider this alternative basis on which Mr Dopking presented his case to it.

32. In the result, I respectfully differ from the conclusion of the President of the Commission and would order that the decision under review be set aside; that the matter be remitted to the Commission for consideration of the alternative case presented by Mr Dopking in relation to s. 6(2) of the Act; that the costs of the Commonwealth of the proceeding in this Court be paid by the Commission; and that otherwise there be no order as to costs. The Court has already ordered that the proceeding in this Court be stood over generally against Mr Thomas with liberty to restore on reasonable notice.

WILCOX J The facts of this matter are contained in the judgment of Lockhart J which I have had the advantage of reading. I agree with his Honour that the application for review should be granted, the decision of the Human Rights and Equal Opportunity Commission set aside and the matter remitted to the Commission for consideration of the alternative case made by the second respondent, Michael Dopking, in reliance upon the interpretative provision which is s.6(2) of the Discrimination Act 1984.

2. The complaint made to the Commission by Mr Dopking was that Determination 0509 discriminates against single members of the forces in breach of s.14 of the Sex Discrimination Act. Mr Dopking argued that the effect of the Determination was to provide certain benefits (purchase allowances and sale allowances) to married members but to deny them to single members. He said that, as he was single, he was financially disadvantaged by this discrimination.

3. Although s.14 is the linchpin of the complaint, its terms are not critical to the present case. The parties agree that the Commonwealth would be in breach of s.14 if it discriminated against members of the defence forces, in relation to conditions of employment, on the ground of marital status. The question that divides the parties is whether Determination 0509 does discriminate between members of the forces on the ground of marital status. In order to answer that question it is necessary to turn to s.6 of the Act.

4. Section 6 specifies the circumstances under which, for the purposes of the Act, a person is to be taken as discriminating against another person on the ground of marital status. Section 6(1) deals with what might be called "direct discrimination", s.6(2) with "indirect discrimination". The section reads:

"6.(1) For the purposes of this Act, a person ( in this

subsection referred to as the 'discriminator') discriminates against

another person (in this subsection referred to as the 'aggrieved

person') on the ground of the marital status of the aggrieved person

if, by reason of:

(a) the marital status of the aggrieved person;

(b) a characteristic that appertains generally to persons of the

marital status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the

marital status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in

circumstances that are the same or are not materially different, the

discriminator treats or would treat a person of a different marital

status.

(2) For the purposes of this Act, a person (in this subsection referred

to as the 'discriminator') discriminates against another person (in

this subsection referred to as the 'aggrieved person') on the ground of

the marital status of the aggrieved person if the discriminator

requires the aggrieved person to comply with a requirement or

condition:

(a) with which a substantially higher proportion of persons not of the

same marital status as the aggrieved person comply or are able to

comply;

(b) which is not reasonable having regard to the circumstances of the

case; and

(c) with which the aggrieved person does not or is not able to comply."

5. The Commission decision that is under challenge in this case was based upon s.6(1). So that subsection is the Court's primary concern. But the terms of subs.(2) are important in construing subs.(1). In particular, they provide guidance as to the meaning of the concluding words in subs.(1): "a person of a different marital status". As will appear, I think these words are critical to the outcome of this appeal. I will return to this topic later.

6. The conduct that is described in s.6(1) must be considered as a whole, and I will conclude by evaluating it in that way. But I think it useful to focus first on three separate aspects of that conduct:

(a) the cause of the alleged discriminatory conduct;

(b) whether the circumstances pertaining to the favoured

person or persons are not materially different to

those applying to the aggrieved person; and

(c) the nature of the relevant conduct.

7. The last matter involves two component issues: first, whether the relevant treatment is "less favourable"; secondly, whether the basis of the less favourable treatment is marital status.

8. In relation to the first matter, the cause of the relevant conduct, paras. (b) and (c) are significant. These paragraphs were presumably inserted to prevent the circumventions that would otherwise occur where discriminators justified their conduct by reference to a characteristic (actual or imputed) of persons of a particular marital status, rather than by reference to the marital status itself. Parliament may also have been concerned with discrimination based on stereotyping: see the comment of Mahoney JA concerning the similar New South Wales provision in Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 at 18.

9. It is not clear to me whether Mr Dopking suggested to the Commission that the Commonwealth discriminated against single members of the forces on the overt ground that they were single. But, if so, the suggestion found no favour. The learned President held that the Determination was not framed in those simple terms. He pointed out that it made provision for the payment of benefits to some single members whilst denying them to some married members. But the President thought the case was covered by para.(b) of the subsection. In his initial decision of 14 May 1991, he put the matter in this way:

"The respondent (the Commonwealth, the present applicant) argues that

s.6(1)(b) does not apply because it is not sufficient to say that a

single person does not generally have a family. It says there must be

some additional characteristic 'appertaining to' or 'generally imputed

to' single persons and that no such characteristic has been identified

in the complaints.

However, in my opinion, the status of being a 'member without family' for the purposes of Determination 0509 is plainly a characteristic that 'appertains generally' to single persons. Admittedly, it will not apply in every case. It is sufficient to conclude that it will generally be the case."

10. In his second decision, of 13 March 1992, the President reiterated his earlier view. He said:

"It is not only 'marital status' to which regard must not be had, but

also 'a characteristic that appertains generally to or is generally

imputed to persons of the marital status' of the complainant. Not

being part of a 'household' is a characteristic that appertains

generally to persons of single status, thereby as a matter of

generality rendering single persons ineligible to receive the

allowance. In the present case, that characteristic of not being part

of a household attached to Mr Dopking, thereby rendering him ineligible

to receive the allowance."

11. With respect to the President, I think that the use of the word "household" was unfortunate. It is commonplace in contemporary Australian society for single people, especially young adults, to live in what they call "households" consisting of a number of people. Although, no doubt, arrangements vary from one group to another, I understand that living expenses are customarily shared. There is often a degree of mutual support and caring similar to that provided within families, although there may be no sexual contact between members of the group and no relationship falling within the definition of "family" in clause 2 of Determination 0509. I suggest that the conclusion reached by the President is better expressed in the manner of his first decision; that is, simply by saying that it is a characteristic that "appertains generally" to single people that they do not have a "family", as defined in clause 2. That is not to deny that some single people have "family" residing with them; perhaps a child or a parent. But this is a rare situation. By contrast, of course, it is usual (although not invariable) for a married person to have "family" residing with him or her. A spouse is "family".

12. Counsel for the Commonwealth submit that the words "on the ground of" import a requirement for a causal relationship between the basis of decision and the alleged discriminatory act. I accept that submission. But I have no difficulty in concluding that an action may answer the description contained in s.6(1) of the Sex Discrimination Act if it distinguishes in its operation between people having a marital status which has the general characteristic that its possessors do not have "family" residing with them and those who have a different marital status.

13. I turn to the second question: whether in this case the circumstances were not materially different. The learned President dealt specifically with this matter only in his second decision. During the course of the hearing before him, comparisons had been made between the position of Mr Dopking and two other defence force members. Mr Dopking was a single man posted by the Royal Australian Air Force to Townsville. He initially took up accommodation at the Air Force base but subsequently moved into a house he purchased in the city of Townsville. The other defence force members were Sergeant Taylor of the Air Force and Staff Sergeant Formas of the Army. These members were also transferred to Townsville. Sergeant Taylor was married with children. Staff Sergeant Formas was married, but without children. Each member was accompanied to Townsville by his family. Sergeant Taylor and Staff Sergeant Formas each purchased a house in Townsville. Each was eligible to receive the purchase allowance. Mr Dopking was not.

14. In dealing with the issue of materially different circumstances, the President referred to the position of these members. He said:

"Thirdly, the respondent says that in any event the SDA has no

application in the circumstances of this case because the circumstances

governing members with a family and members without a family are so

different. There is no comparison between a member living on his or her

own and a member who is one of a household. Counsel for the respondent

emphasised the depth of relationship that might reasonably characterise

a household by employing the word 'dependency'; she argued that

dependency implied much more than financial dependency and described the

deep attachment that ordinarily exists between spouses as 'emotional

dependency'. There can be no comparison with a member living alone.

The circumstances are so materially different.

I can appreciate the argument but it only serves to expose the key role

that marital status plays in the circumstances. The more immediate

question is the meaning to be attributed on its proper construction to

the phrase 'in circumstances that are the same or are not materially

different'. It would fatally frustrate the purposes of the Act if the

matters which it expressly identifies as constituting unacceptable bases

for differential treatment (i.e. s.6(1)(a)(b) and (c)) could be seized

upon as rendering the overall circumstances materially different, with

the result that the treatment could never be discriminatory within the

meaning of the Act. I reject such a construction. I am satisfied that

the circumstances applying, for example to Sergeant Taylor, Staff

Sergeant Formas and Mr Dopking were the same or not materially

different."

15. "SDA" was the abbreviation used by the President for the Sex Discrimination Act.

16. I have emphasised the key part of the President's reasoning on this point. What is there said must be correct. To the extent that the Commonwealth argues in this case that there is a material difference between single people and married people in that the former tend not to have "family" whereas the latter do, the difference is the proscribed discrimination itself.

17. The point may be illustrated by a hypothetical case under s.5. That section relates to discrimination on the basis of gender. It employs the same formula as s.6. Suppose an employer operating a factory adopted a policy of employing only men, the employer's stated reason being that women cannot lift heavy weights. It is, of course, a characteristic appertaining generally to women that they have less physical strength than men. Could the employer resist a claim under s.5 by saying that the circumstances of his treatment of female job applicants and male job applicants were materially different because employees might be required to undertake heavy work? As the President says in relation to the subject case, to admit that claim would fatally frustrate the purposes of the Act. This interpretation does not leave an employer without a viable course of action. If there was truly a need to discriminate between men and women on the basis of capacity to lift weights, the employer could apply to the Sex Discrimination Commissioner for an exemption: see s.44 of the Act.

18. The third matter relates to the relevant conduct: "treats the aggrieved person less favourably than ... the discriminator treats or would treat a person of a different marital status".

19. As Mahoney JA pointed out in Boehringer at 20, the concept underlying this element is detriment; the aggrieved person being treated in a manner less favourable than that accorded someone of a different marital status. The argument put by Mr Dopking, in the present case, is that he was subjected to less favourable treatment than married members; members with a "family" residing with them were eligible for the allowances, he was not.

20. Counsel for the Commonwealth resist this argument by pointing to the benefits (disclosed by the evidence before the Commission) of living in service-provided accommodation. It appears that barrack accommodation carries with it access to communal dining, laundry and recreational facilities. Although a charge is made for barrack accommodation, it is calculated at concessional rates. Under these circumstances it is understandable that many single members of the defence forces prefer to live in barrack accommodation rather than in their own homes, a condition precedent to qualifying for an allowance under Determination 0509.

21. However, I do not think it is legitimate to deny that a person is less favourably treated simply because someone else might prefer the treatment offered by the alleged discriminator than that provided to persons of a different marital status. Where there are both advantages and disadvantages of each course of treatment, whether one alternative is more or less favourable than the other will usually be a matter of personal preference.

22. An illustration of that proposition is provided by an English case, Ministry of Defence v Jeremiah (1980) 1 QB 87. The applicant was a male quality examiner in a government ordnance factory. The quality examiners supervised production within the factory. The factory contained three colour shell shops where the work was dirty. Examiners working in those shops were required to shower and change after work. Overtime work was voluntary for all examiners. However, if they chose to work overtime, male examiners were required to take turns in the colour shell shops. Female examiners were not. Persons working in the colour shell shops were paid for their shower time. In addition, they received an "obnoxious payment" of 4p for each hour worked.

Jeremiah complained that he was unlawfully discriminated against on the ground of sex. His complaint was upheld. The employer appealed, arguing that the impugned practice involved no detriment to the male examiners because of the extra 4p an hour. All members of the Court of Appeal rejected that argument. The matter was put most fully by Brightman LJ at 104:

"In deciding whether or not there is a detriment to a worker who

complains, the court must in my opinion take all the circumstances into

account. To take an example from the facts of the present case, if (a)

a male worker is under a duty to work in the colour bursting shop one

day a fortnight and is compensated with a dirty work payment of 4p an

hour and consequential pay-related pension benefits, and (b) a female

worker has no such duty, and (c) a male worker complains, there is

clearly discrimination based on sex. The question before the tribunal

in my view would be whether a reasonable male worker would or might take

the view that there was a detriment. I say, 'would or might,' because

tastes differ. Some male workers might take the view that the 4p an

hour bonus, with consequent increase in pension rights, made the dirty

work well worth while, and not therefore detrimental to their interests.

Other male workers might take the view that it was not worth while, that

it was to their detriment. It would be unrealistic to expect a tribunal

to decide which group of workers were correct in their assessment. I

think a detriment exists if a reasonable worker would or might take the

view that the duty was in all the circumstances to his detriment. It

may be said that, on this interpretation of the Act, both a male worker

and a female worker might complain about the same discrimination and

that both might be right. I see no anomaly in such a result. The

purpose of the legislation is to secure equal treatment of the sexes so

far as appropriate." (Emphasis added)

23. It seems to me that the same approach ought to be taken to the formula "less favourably". Where there is a mixture of advantages and disadvantages, it is not for the employer or the Commission to impose a preference. Although some defence force members may think it advantageous to live in barrack accommodation, with consequential opportunities for cost savings and social intercourse, others, quite reasonably, may prefer the greater independence and privacy flowing from off-base accommodation. A person without "family" is treated "less favourably" if denied the financial assistance in living off-base that a member with "family" would receive.

24. The President did not deal with this aspect of the case in his initial decision. He did deal with it in his second decision when he expressed a view consonant with that I have expressed.

25. However, there is a final aspect of this third question. At least on the facts of this case, that aspect is tied into consideration of the Determination as a whole.

26. On a literal reading of s.6(1), for conduct to fall within the subsection the alleged discriminator must treat the aggrieved person less favourably than he or she treats, or would treat, a person of a different marital status. The subsection merely requires a comparison between the treatment of an aggrieved person having a particular marital status (or characteristic which appertains generally, or is perceived to appertain generally, to persons of a particular marital status) and the treatment accorded to persons having a different marital status, without reference to the characteristics that generally appertain, or are imputed, to that marital status.

27. I have considered whether the words "different marital status" should be construed literally, in this way. A literal construction reduces the scope of subs.(1). To revert to the hypothetical employer who wished to exclude women employees and gave the reason that they could not lift heavy weights. Could the employer escape the reach of s.5(1) by adopting a policy of employing, not men as such, but people who could lift 40 kilos; the employer knowing that most, but not all, men - and few, if any, women - could pass this test? In order to avoid what the learned President, in a different context, referred to as "fatally frustrat(ing) the purposes of the Act" should the comparison be, not with males, simpliciter, but with persons having characteristics that generally appertain, or are imputed to, males; that is, persons having greater physical strength?

28. But for the presence of s.5(2), I would answer the last question affirmatively. Otherwise it would be easy for a person to avoid the operation of the section, by discriminating indirectly rather than directly. However, s.5(2) does exist and has an important role to play. It would cover my hypothetical case. The employer would be requiring the prospective female employee to comply with a requirement with which she is not able to comply (para.(c)), but with which a substantially higher proportion of the opposite sex (men) do comply (para.(a)). Whether or not the requirement was discriminatory would depend on whether or not it was reasonable in the circumstances of the case (para.(b)); this being an objective matter requiring a balancing of the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced for the requirement on the other: see Secretary, Department of Foreign Affairs and Trade v Styles (1989) 25 FCR 251 at 263. This provides a sensible result. Fulfilment of the purposes of the Act would not be imperilled by giving a literal interpretation to the concluding words of s.5(1) "a person of the opposite sex".

29. It seems to me that s.6 should be construed in the same way. That section also contains a provision (s.6(2)) concerning indirect discrimination which ultimately turns on reasonableness. To illustrate the point, Mr Dopking does not comply with the Commonwealth condition in Determination 0509 that he be "a member with a family" (s.6(2)(c)). This is a condition with which a substantially higher proportion of persons of a different marital status than Mr Dopking (married people) are able to comply (s.6(2)(a)). So there is a breach of s.6(2) if the condition is not reasonable in the circumstances of the case (s.6(2))(b)). The Commission has not made a finding as to whether or not the condition is unreasonable, but that is immaterial in relation to construction. The existence of s.6(2) is a powerful indication that the concluding words of s.6(1), "a person of a different marital status", were intended to bear their literal meaning.

30. Once that conclusion is reached, the result becomes clear. Determination 0509 does not treat defence force members who are single (or have no "family", as defined) differently from married members, as such. A married member is not entitled to a purchase or sale allowance simply because he or she is married; that is, has "family". It is a condition of eligibility for both allowances that the member normally reside in the dwelling with one or more members of his or her family. That condition applies to both single and married members. It is true that it will usually be easier for a married member to satisfy the eligibility criteria than for a single member. But the contrast in eligibility established by the Determination is not between single members and married members; it is between members (whether married or single) who have "family" normally residing with them in the particular home and members who do not. That this is a different reason may be illustrated by reference to Sergeant Taylor and Staff Sergeant Formas. Although married, if either of those members had gone to Townsville unaccompanied, he would not have been eligible for a purchase allowance. Conversely, if Mr Dopking, although single, had been accompanied to Townsville by someone falling within the definition of "family", he would have been eligible.

31. This last aspect of the case does not appear to have been argued before the Commission. It is not referred to in the President's reasons. But it seems to compel the conclusion that the making of Determination 0509 was not conduct described by s.6(1) of the Sex Discrimination Act. As the Commission's decision was based on that subsection, it must be set aside. However, Mr Dopking also relied on subs.(2), in relation to which there is a likely issue of unreasonableness. Because of his view about subs.(1), the President did not deal with subs.(2). The matter should be remitted to the Commission in order that he may do so.