HILLS v THE STATE OF SOUTH AUSTRALIA No. SCCIV-01-1013 [2002] SASC 171

Full Court: Doyle CJ, Mullighan and Williams JJ

DOYLE CJ: This is an appeal against a decision by the Equal Opportunity Tribunal ("the Tribunal").

Mr Hills is a member of the Police Force. He wished to be appointed to the position of Inspector.

In 1992, 1994 and 1995 Mr Hills took part in a selection process conducted on behalf of the Commissioner. The purpose of the selection process was to determine the suitability of members of the Police Force to be recommended to the Commissioner for appointment to the rank of Inspector. In other words, it determined whether a member had the necessary qualifications, and so whether the member was eligible for appointment. On each occasion Mr Hills was unsuccessful.

Mr Hills complained that the selection process involved discrimination against him on the ground of impairment (he could not use his right arm). His complaint was that the Commissioner had discriminated against him on the ground of impairment "by denying or limiting access to opportunities for promotion ....": s 67(2)(b) of the Equal Opportunity Act 1984 ("the Act").

His complaint alleged what is generally called indirect discrimination contrary to s 66(b) of the Act. That section provides as follows:

"66. For the purposes of this Act, a person discriminates on the ground of impairment -

(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and -

(i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment;

(ii) the requirement is not reasonable in the circumstances of the case ..."

In brief, Mr Hills claimed that to complete the selection process successfully he had to demonstrate competency in the positions of State Duty Officer ("SDO") or in the position of Divisional Commander ("DC"). These positions are what are called operational or command positions. He claimed that to demonstrate competency in those positions, it was essential to have actual experience in performing the operational type of work undertaken in those positions, but that by reason of his impairment he did not have such experience and was not given the opportunity to get it. Accordingly, he argued that police officers without an impairment could get that experience, and accordingly a substantially higher proportion of police officers without an impairment could comply with the requirement for successful completion of the course, than could the proportion of persons who had an impairment.

It appears to have been common ground that because of his impairment Mr Hills would not be appointed to the position of SDO or DC, would not be permitted to act in those positions, and would not be appointed to or assigned to less senior positions that involved the performance of operational duties. By "operational duties" I understand the parties and the Tribunal to mean active policing in the field, something that required the police officer to have no significant physical impairment.

The Tribunal rejected the claim. It found that experience in an operational position was an advantage for a person taking the course, but not a necessity for the successful completion of the course.

The relevant events occurred when the Police Act 1952 ("the 1952 Act") was in force. The 1952 Act has now been replaced by the Police Act 1998 ("the 1998 Act"). Nothing was made of this in the reasons of the Tribunal or in the submissions before us. I assume that nothing turns on it.

The relevant provisions of the 1952 Act and of the 1998 Act, and of the Regulations made under those Acts, appear to be similar.

Under the 1952 Act, the police force is under the control and management of the Commissioner, subject to the "Act and the directions of the Governor": s 21. Section 42(6) of the 1952 Act provides:

(a) a person is not eligible for appointment to the rank of inspector if the person does not have qualifications determined by the Commissioner to be essential in respect of the rank; and

(b) a determination of the Commissioner that specific qualifications, experience or other attributes are essential or desirable for appointment to the rank of inspector is binding on the Board."

This provision appears to control eligibility for appointment as an Inspector. Eligibility is also governed by the Police Regulations 1982 and by Regulations 44(1) and 45(1) in particular which provide as follows:

"44 (1) The Commissioner may determine the suitability of members for future appointment to the rank of inspector by conducting qualifying examinations, courses and other assessment procedures."

"45 (1) Unless the Minister in any case otherwise directs, a member is not eligible for appointment to the rank of inspector or above unless the member has -

(a) participated in any assessment procedure for the particular rank established under regulation 44;

(b) served a period in a position that attracts the rank of sergeant to demonstrate his or her suitability for commissioned rank."

The actual appointment of a person as Inspector is made under s 10 of the 1952 Act which provides:

"10 (1) The Governor may appoint as many commanders, superintendents, inspectors and other officers of police as the Governor thinks necessary.

(2) Every officer appointed under subsection (1) will receive a commission signed by the Governor."

The process of appointment is regulated by s 42(1) which provides:

"42 (1) Where a member of the police force has been selected by the Commissioner for nomination for appointment to the rank of inspector, the Commissioner must, by notice published in the Police Gazette in accordance with the regulations, give notice of the proposed nomination."

Section 42 of the 1952 Act provides for a process of appeal against a proposed nomination, and as s 42(6)(b) indicates, on any such appeal the Board must accept the Commissioner's determination of appropriate qualifications, experience and attributes.

The Tribunal's findings do not link the selection process undergone by Mr Hills with the legislative provisions. My impression is that the selection process that Mr Hills underwent in the three years in question was a procedure under Regulation 44(1) by which eligible persons were assessed to see if they had qualifications determined by the Commissioner under s 42(6)(a) of the 1952 Act to be essential, the selection process being conducted on behalf of the Commissioner under Regulation 44(1). At the end of the selection process the Commissioner would be informed whether a candidate was regarded as suitable or unsuitable for appointment as Inspector, having regard to the qualifications set by the Commissioner.

As I have said, nothing was made of the fact that the 1952 Act is no longer in force. The equivalent provisions in the 1988 Act are s 20, s 54 and s 58. The equivalent Regulation is Regulation 32 of the Police Regulations 1999.

The objects of the Act are to promote "equality of opportunity" and to prevent "certain kinds of discrimination". There was no dispute that the paralysis of Mr Hills' right arm was an impairment for the purposes of the Act. As I have already said, s 67 makes it unlawful for an employer to discriminate against a person on the ground of impairment by denying or limiting access to opportunities for promotion. The meaning of discrimination for present purposes is to be found in the provisions of s 66(b), which are set out above.

The Tribunal did not find it necessary to relate the selection process undertaken by Mr Hills to the legislation. The decisions in question were made by an Assessment Coordination Committee ("the ACC"). For present purposes I find it unnecessary to go into the details of the selection process. There is no doubt that it was all done on behalf of the Commissioner. The decision about which Mr Hills complained was a decision by the ACC that Mr Hills had not successfully completed the assessment procedure conducted under Regulation 44(1).

The content of the assessment process appears to have varied somewhat from year to year. However, as I understand the Tribunal's reasons the process was broadly regulated by an "Inspectors Selection Manual" published by the Commissioner in 1991. The Preface to the Manual states:

"This Manual provides the selection criteria and procedural guidelines used to determine the suitability of members to be nominated for appointment to the rank of Inspector."

"Pursuant to the provisions of s42(b) of the Police Act 1952, I determine that the specific qualifications which are essential for appointment to the rank of Inspector are the successful completion of the selection process outlined in this Manual."

I think that the statutory reference must be meant to be s 42(6)(b). The Preface bears the name of the Commissioner. The Manual contains "selection criteria" set out in appendix K. They include certain "Factors" including "physical fitness" against which, under the heading "Job Requirements" appears the following:

"Able to physically cope with the operational demands of Commissioned Officer duties."

In a Management Bulletin issued in March 1992, "the Commissioner's views on his expectations of Commissioned Officers" are set out. They include the ability "to assume the responsibility of 'Commander' in emergency situations."

The Tribunal found that the decision by the ACC about which Mr Hills complained was not, as seems clear, a decision whether to appoint Mr Hills to the rank of Inspector. The challenged decision was a decision by the ACC whether it would recommend to the Commissioner that Mr Hills be nominated by the Commissioner for appointment as Inspector. As I have already said, it appears to me that in terms of the legislation, the ACC's decision was a decision whether or not Mr Hills had "qualifications determined by the Commissioner to be essential in respect of" the rank of Inspector.

The provisions of the Manual to which I have just referred might suggest that the selection process involved a determination whether the candidate was suitable to be appointed to a command position, including an assessment whether the applicant had the physical capacities required for such a position (and clearly enough Mr Hills did not have those capacities). Nevertheless, the Tribunal found that the capacity to perform the duties of SDO or DC was not what was being assessed. The Tribunal's findings appear from the following part of its reasons:

" On all the evidence, we are satisfied, with respect to the complainant, that all that was tested and assessed, in 1995, was his competency measured against these criteria:

(1) knowledge and understanding of the tasks required to be carried out by an SDO/DC;

(2) personal and professional attributes considered to be required to discharge the role of SDO/DC.

So much emerges from consideration of the documents contained in C5, particularly at C5.253, and from the evidence of all the parties, and we find that those criteria constitute the 'particular requirements' for the purposes of section 66(b) of the Act.

What was not assessed and, on the evidence, was not part of the determination or decision of 28 May 1996, was the physical capacity of the complainant to undertake the work of SDO/DC or a Commander in an emergency situation."

The distinction that the Tribunal drew is significant. It is significant because, as the Tribunal found, Mr Hills did not have the physical capacity (because of his impairment) to discharge the role of SDO or DC. As the Tribunal later went on to observe, the invariable practice of the Commissioner was to appoint a new Inspector to "active policing roles" in the positions of SDO or DC, and these were positions that Mr Hills would not be permitted by the Commissioner to fill. But the Tribunal found that this bar to appointment, based on Mr Hills' impairment, had not actually arisen. It found that the ACC was merely determining whether Mr Hills had a sufficient knowledge and understanding of the work required by an SDO or DC, and the personal and professional attributes required to perform those roles.

I will return to this distinction later. It suffices to note at this stage that the distinction drawn is somewhat artificial.

The Tribunal's findings about the selection process

In brief, Mr Hills claimed that the selection process was one that required a candidate to have "operational work experience", and the physical capacity to perform the work of SDO or DC. It was common ground that because of his impairment, Mr Hills would not be given an operational position that involved the sort of work done by the SDO or a DC. Thus, Mr Hills argued that the selection process involved a particular requirement, experience in an operational position, and that a person with an impairment could not obtain that experience.

The Tribunal rejected that argument. It found that the selection process was not one which required a candidate to have experience in an operational role. It did not accept the argument that an adequate knowledge and understanding of the requirements of the SDO and DC positions "could only be gained from a background of, or recent experience in, operational policing ..." The Tribunal's central finding is as follows:

"The complainant's assertions as to the necessity, as opposed to the advantage, of having that experience and the inadequacy of what was provided to him was not corroborated by any other evidence in the hearing and it was flatly contradicted by the respondent's witnesses. This was not a matter where the credibility of any of the witnesses was in issue. Some were more impressive in giving their evidence, but we were not satisfied any of them sought to mislead. In the end, we were simply not satisfied that the complainant discharged the onus he faced of proving the asserted dependence of knowledge on experience, hence in proving the requirements of section 66(b)(i) of the Act."

But it is important to note that the Tribunal accepted that a candidate without an impairment had an advantage in the selection process, because such a candidate could undertake "a full range of operational duties." As I will explain, the evidence went somewhat further than that.

In submissions before us, the main argument for Mr Hills was that this finding was flawed. The argument was that from a practical point of view substantial or at least recent operational experience was essential if a candidate was to complete the selection process successfully. We were taken to a good deal of the evidence before the Tribunal. In a nutshell, the submission on appeal was that from a practical point of view "hands-on experience" in an operational position was necessary, and the knowledge and experience that the ACC was assessing could not be obtained merely by observation or "from a book".

I have considerable sympathy for this argument. However, this is a matter that was carefully considered by the Tribunal, and the Tribunal's decision appears in the passages set out above. I am not satisfied that the Tribunal erred, even though I accept the difficulty of acquiring necessary knowledge and understanding merely by observation and bookwork, compared with actual field experience.

I consider that in this respect the challenge to the decision of the Tribunal fails, but that is not the end of the road.

To succeed in his claim Mr Hills had to satisfy the Tribunal that he was discriminated against by the Commissioner denying or limiting Mr Hills' access to opportunities for promotion within the Police Force: s 67(2)(b) of the Act.

The complaint is of indirect discrimination. The idea underlying indirect discrimination was explained by Dawson and Toohey JJ in Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 at 392:

"A distinction is often drawn between two forms of discrimination, namely 'direct' or 'disparate treatment' discrimination and 'indirect' or 'adverse impact' discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v Duke Power Co [1971] USSC 46; (1971), 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."

Mr Hills' complaint relates to the process established by the Commissioner to determine whether the ACC would recommend members of the Force to the Commissioner for appointment to the rank of Inspector. It is clear that the recommendation of the ACC would determine for practical purposes whether a member of the Force was eligible for appointment by the Commissioner to the rank of Inspector, even if the Commissioner retained the power to make an appointment without a recommendation from the ACC.

Accordingly, the process conducted by the ACC, and its decision, had a decisive effect on access to opportunities for promotion, and so the process and decision fall within the scope of s 67(2)(b).

Mr Hills had to show that the assessment process involved or included a "particular requirement"; that he did not or could not comply with that requirement; that a "substantially higher proportion" of an appropriately defined or identified group of persons without an impairment was able to comply with the requirement than the proportion of impaired people able to comply with the requirement, that second group again being appropriately defined and including Mr Hills, and further Mr Hills had to show that the requirement "is not reasonable in the circumstances of the case": s 66(b).

The Tribunal rejected the argument that the "particular requirement" was that a candidate for successful completion of the selection process must have operational work experience and be capable of performing the work of SDO or DC, and that because of Mr Hills' impairment he lacked, and could not obtain, such experience.

But the Tribunal still had to consider whether the "particular requirement" of knowledge and understanding of the tasks carried out by a SDO and DC, and the requirement to have the personal and professional attributes to discharge those roles, which it found to be a requirement for successful completion of the selection process, contravened s 66(b). It was not sufficient to conclude, as the Tribunal did, that operational experience was not essential to meet the "particular requirement".

The Tribunal found (as was hardly denied before it) that in the assessment process, focused as it was on the operational roles of SDO and DC, it was an advantage for an applicant to have a background of or recent experience of relevant operational work. This finding is firmly supported by the evidence of Mr Ramm and Mr Murray and to a lesser extent of Mr Kelly. Some colour is given to this evidence by Mr Murray's comment that people lacking a significant background in, or recent experience of, operational work had been recommended for promotion, but "these are usually exceptional people." It should be added that the evidence suggested that in some areas tested, experience in a non-operational area might be an advantage.

Section 66(b)(1) requires a comparison to be made of the ability of two groups of persons to meet the particular requirement in question.

The Tribunal said that both groups belonged to the larger group comprising non-commissioned officers in the Police Force who could reasonably aspire to promotion to commissioned rank. I agree.

The Tribunal then formulated the issue as follows:

"Whether a substantially higher proportion of police officers eligible to apply for promotion to the rank of officer and who have two unimpaired arms, demonstrate or are able to demonstrate competency in the particular requirements, than of those impaired in the same manner as the complainant."

I consider that this is too narrow. The appropriate comparison is between police officers eligible to apply for promotion who have a physical impairment that renders them unfit in the Commissioner's view to perform operational roles, and eligible police officers who have no such impairment. However, nothing turns on that.

Some of the cases and commentaries suggest that s 66(b) requires a precise assessment of the comparative compliance rates for the two groups referred to in sub-par (i). The application of the principle that the best available evidence should be presented, leads to the conclusion that when precise comparisons are able to be made, they should be made. But a claim under the Act cannot be defeated because it is impossible to make a precise comparison.

No attempt was made by Mr Hills or by the Commissioner to make precise comparisons. It would have been extremely difficult for Mr Hills to do so. It would have been necessary for him to obtain access to personnel records going back a good number of years, and to analyse them in some detail. It would have been difficult, although not as difficult as for Mr Hills, for the Commissioner to do so. Precise comparison of compliance rates would require a close study of the records of persons who had undertaken the assessment process, with a view to identifying those persons who had an impairment that made them unfit for an operational command, with a view to comparing their performance in the assessment process with the performance of those who had no such impairment. The process would give rise to significant privacy issues, and would probably involve the making of some difficult judgments. Be that as it may, no such analysis was attempted in this case.

The issue then is whether, on the basis of the Tribunal's finding that operational or field experience was an advantage in the selection process, the Tribunal should have found that the requirement to demonstrate knowledge and understanding of tasks carried out by the SDO or by a DC was a requirement such that a substantially higher proportion of applicants with no impairment that made them unfit for operational or field work were able to comply with the requirement, compared with the proportion of applicants who had such a physical impairment.

The Tribunal said that field experience and operational experience was not necessary or essential to meet the requirements of the assessment process. The Tribunal went no further. If it had made an affirmative finding that field or operational experience was necessary, it would be clear that the criteria established by s 66(b) were met, because persons with a physical impairment would not be able to comply with the requirement to demonstrate knowledge and understanding of the tasks carried out by a SDO or DC.

The Tribunal does not appear to have addressed the issue of whether the advantage of operational or field experience available to an applicant without an impairment, meant that a substantially higher proportion of such persons would comply with the requirement to demonstrate knowledge and understanding of the tasks carried out by a SDO or DC. It was necessary to decide this issue to dispose of the claim made by Mr Hills. The Tribunal should have decided it.

I have read the relevant part of the Tribunal's reasons carefully. My conclusion is that the Tribunal has not addressed the issue by implication, and had not by implication made a finding on this point adversely to Mr Hills.

"there was credible evidence before us from which we would likely have concluded, had it been necessary, that the complainant had failed to achieve certain of the necessary competencies, for personal/professional reasons quite unassociated with any potentially discriminatory features of the assessment process."

I am not satisfied that that finding is an answer to Mr Hills' claim. The Tribunal's summary of the selection process indicates that the process was one in which personal qualities and the required skills and knowledge were closely interrelated. While it is clear that the Tribunal was of the view that Mr Hills' personal qualities were a factor in his failure to succeed in the selection process, it is not clear that the Tribunal was intending to make a finding that come what may Mr Hills was going to fail for reasons unconnected with his impairment.

The issue that I have identified does not turn on findings of credibility. The Tribunal itself said that credibility of the witnesses was not an issue.

This Court on appeal has power to make the decision that I consider needs to be made: s 98(5). To my mind, the evidence suggests that a finding of discrimination for the purposes of s 66(b) can be made. I am particularly influenced by the Tribunal's apparent acceptance of the thrust of the evidence from Mr Ramm and its apparent acceptance of the evidence of Mr Murray, and in particular Mr Murray's comment that while people without operational experience have successfully completed the selection process, "these are usually exceptional people."

But I also appreciate that the Tribunal is familiar with the detail of the evidence, and that this Court is at some disadvantage in that respect.

I consider that the matter should be remitted to the Tribunal in exercise of the power conferred by s 98(5)(b) of the Act, for the Tribunal to determine the issue that I have identified as arising under s 66(b). The Tribunal should also determine whether Mr Hills was not able to comply with the particular requirement of demonstrating a knowledge and understanding of the tasks carried out by a SDO or DC, because of the effects of his impairment. It is not necessary for his impairment to be the only reason for his failure to comply. It will suffice if it is a significant or substantial reason.

If a finding favourable to Mr Hills is made, the Tribunal will then have to consider whether the particular requirement was "not reasonable in the circumstances of the case": s 66(b)(ii). As to this, the Tribunal made the following comment:

"Nevertheless, we observe in passing that there might well be a basis for concluding, were we obliged to consider it, that some of the particular requirements were not reasonable in the circumstances. Other evidence disclosed that as many as a quarter of the Inspector positions in SAPOL did not require the discharge of the full range of duties expected of an SDO/DC, and yet the particular requirements meant (and, we note, still appear to mean) that aspirants to those other positions have to be fully conversant with, and personally and professionally capable of filling, the positions of SDO/DC, positions which, apart from a brief initial posting, they might never be expected to fill. It is one thing to expect that all officers, even in specialised areas, have an understanding of operational police matters, but another to require that that knowledge and understanding be pitched at the SDO/DC operational level."

In argument before us, counsel for the Commissioner accepted that the Commissioner had had an opportunity to put his case on this issue, and had done so. There is a firm basis for making a finding on this issue, favourably to Mr Hills, but again I am content to leave that to the Tribunal to decide.

The reasons of the Tribunal proceed on the premise that the selection process conducted by the ACC is to be considered separately and in isolation. It is clear that in practice there are two stages to the appointment process. First, an assessment by the ACC, resulting in the nomination of a successful candidate by the ACC to the Commissioner, and then an appointment by the Governor (presumably on the Commissioner's nomination) from among the persons nominated by the ACC. This reflects the distinction drawn by the 1952 Act and the 1998 Act between eligibility for appointment and the actual appointment process.

I must say that I am uneasy about the approach of the Tribunal, in the circumstances. The Tribunal found:

"(1) As we have found, it was an inherent requirement of appointment to Inspector, that the appointee be able to take command in emergency situations. Plainly, on all the evidence, the complainant could never have discharged all the requirements of that role, involving, as they do, the wearing of uniform and insignia and the risk of physical confrontation.

(2) Although it may not have been an inherent requirement, it was the invariable practice of SAPOL to appoint new Inspectors to active policing roles in the SDO/DC positions. Plainly again, there were tasks involved in the performance of those roles which, by virtue of his impairment, the complainant could not physically perform.

(3) Had the complainant otherwise achieved the competencies required by the ACC in 1995/96, but not otherwise been successful in securing an Inspector appointment, we would have had little difficulty in concluding that both the inherent requirement of command capability and the inevitability of an operational posting:

(a) were capable of being performed by a significantly higher number of persons not suffering from the complainant's impairment; and

In other words, the Tribunal has all but found that the appointment process, that is the actual decision by the Commissioner to nominate to commissioned rank, is discriminatory contrary to s 66. It seems unreal, in that context, to focus exclusively on the selection process conducted by the ACC, as the parties appear to have done before the Tribunal, and as the Tribunal has done. The reality is that the promotion process, from Mr Hills' point of view, ends in a dead-end. On the evidence, he will not be appointed, even if he successfully completes the selection process. The idea of the ACC nominating a person to the Commissioner, who will not be appointed an Inspector because the person is not physically fit to fill a command role, seems unreal to me.

I consider it arguable that what was being determined or decided was the suitability of Mr Hills and others for appointment to the rank of Inspector (see s 44(1) of the 1952 Act). Even if the Tribunal's decision about the function performed by the ACC is correct (see above par [19]-[21]), the Commissioner had determined that suitability for appointment required the physical capacity to undertake the work of SDO or DC. If that is correct, the Commissioner has determined the qualifications or suitability for appointment on a basis that appears to involve discrimination contrary to the Act. The provisions of the 1952 Act suggest that the appropriate focus is on the qualifications specified by the Commissioner, and the eligibility criteria. The ACC dealt with them in part, or dealt with one aspect of them, but the Commissioner's own determination or decision stands as a critical aspect, and involves a requirement that, on the Tribunal's reasons, is likely to be found to be offensive to the Act. I refer here to the "Inspectors Selection Manual", the Management Bulletin, and to the Tribunal's finding set out by me in par [53] above.

The Tribunal may have erred in focussing on what the ACC did, instead of considering whether the Commissioner had determined under s 42(6) and s 44(1) of the 1952 Act suitability and eligibility for appointment on grounds that are contrary to the Act. That broader question requires consideration of more than what the ACC assessed.

No particular complaint was made about this aspect of the Tribunal's approach on appeal, although it was raised by the Court during submissions. The result of the Tribunal's approach is that the lawfulness of the promotion process by the Commissioner will not be able to be tested until a candidate with an impairment successfully completes the selection process.

If the matter is remitted to the Tribunal it seems to me that this aspect of the case requires further consideration.

In that context, two aspects of the case will require further consideration. The Tribunal found that about one quarter of the Inspector positions in the force do not require competency in the discharge of the full range of duties expected of an SDO or DC. Presumably many of these positions are held by persons who could not demonstrate competency in the position of an SDO or DC, or at the operational level generally. That being so, it seems surprising that the policies and procedures in respect of appointment to the position of Inspector do not distinguish between the positions that require an applicant to demonstrate competency in operational functions, and positions that do not. The second matter is linked to the first. We were told that Mr Hills has filled an Inspector's position in the Prosecutions area, where he has worked for some years, for substantial periods of time. This has been on an acting basis. If that is so, the fact that he has acted in an Inspector's position for substantial periods of time highlights the oddity of failing to draw the distinction to which I just adverted. However, I recognise that this Court does not have all of the facts before it, and so at this stage I say no more about these matters.

The Tribunal rejected a submission that the respondent's conduct in 1992 and 1994 was part of a course of conduct of discrimination continued in 1996 and so the whole course of conduct was a series of acts for the purposes of s 93(2) of the Act. The consequence of that rejection was that Mr Hills could complain only about events in 1996, because of the time limit in s 93(2) of the Act. I consider that this decision was open to the Tribunal.

That decision does not render earlier events irrelevant. They remain relevant to the extent that they explain events in 1996.

I would allow the appeal, set aside the decision of the Tribunal dismissing the complaint referred to it, and order that the complaint be remitted to the Tribunal for further hearing.

MULLIGHAN J: I agree that the appeal should be allowed for the reasons given by the Chief Justice and that the order proposed by him should be made.

WILLIAMS J: I agree with the order proposed by the Chief Justice for the reasons which he has given.