IW v City of Perth

REASONS FOR JUDGMENT INTRODUCTION The applicant ("the AEU") lodged a complaint with the first respondent ("HREOC") alleging that the second respondent ("the State of Tasmania") has discriminated against certain of its female employees in the provision of superannuation services in breach of s 22 of the Sex Discrimination Act 1984 (Cth) ("the Act"). The complaint, which was lodged by the AEU on behalf of certain of its members pursuant to s 50(1)(d) of the Act, was dismissed by the HREOC Inquiry Commissioner on the ground that if there had been any discrimination by the State of Tasmania it had not been under s 22 of the Act as alleged but was under s 14 of the Act which is not binding on and does not apply to a State or an instrumentality of a State by reason of ss 12(1) and 13(1) of the Act. The AEU has applied to the Court for an order to review the decision of the Inquiry Commissioner under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the ground of error of law. It contends that the Inquiry Commissioner erred in law in concluding that the provisions of s 22 of the Act do not apply to work-related superannuation schemes and in particular, to the superannuation scheme the subject of AEU's complaint.

BACKGROUND The relevant facts, as found by the Inquiry Commissioner, do not appear to be in dispute. They can be summarised as follows: 1. Prior to 1969 a large number of female teachers employed by the State of Tasmania were required to resign from the State teaching service as leave specifically for maternity was not granted to teachers prior to 1969. 2. At the time of their resignation from the teaching service, such teachers were repaid their contributions to the then existing superannuation scheme (less an administration fee). 3. After their resignation in order to have children, a number of the former female teachers, who had resigned, re-entered the workforce by going back into the teaching profession. 4. Subsequent to 1969 maternity leave became available to teachers so that it was possible for female teachers to leave the teaching service to have children without affecting the continuity of their teaching service. 5. Women teachers, who had resigned to have children and had returned to the State teaching service, were able to purchase, for superannuation purposes, the period of service prior to their resignation under reg 24 of the Retirement Benefits Regulations 1994 (Tas) ("the 1994 Regulations"). If they did so their superannuation entitlement was calculated back to the commencement of their employment in spite of their resignation. 6. Teachers, both male and female, who had obtained leave (for example, to study overseas) or who wished to have their periods of studentship or periods as a temporary employee included for superannuation purposes, were eligible to purchase years of service for superannuation purposes pursuant to reg 14 of the Retirement Benefits (Transitional) Regulations 1994 (Tas) ("the 1994 Transitional Regulations"). If they did so their superannuation entitlement was calculated back to the commencement of their employment in spite of any non-contributing period of service. 7. The cost to female teachers of purchasing years of service under reg 24 of the 1994 Regulations was based on "the full actuarial cost", and is considerably higher than if they had been eligible to purchase "years of service" under reg 14 of the 1994 Transitional Regulations at employee contribution cost. The reason for the difference in cost is that reg 14 only required payment based on employee contributions whilst reg 24 required payment by the employee based on employee and employer contributions. 8. The State of Tasmania has, at all material times, provided for its employees a scheme whereby they become eligible for defined benefits by way of lump sum payments or pensions upon retirement. The operation of this scheme has been governed successively by the Superannuation Act 1938, the Retirement Benefits Act 1970 and the Retirement Benefits Act 1993 (Tas)("the 1993 Act") and, principally, by the 1994 Regulations made under the 1993 Act. The parties were in agreement that the determination of the issues in the present case is primarily governed by the 1993 Act, the 1994 Regulations and the 1994 Transitional Regulations. AEU's submission to the Inquiry Commissioner was that the State of Tasmania was, at the date of the complaint, unlawfully discriminating against female teachers in relation to the provision of superannuation services on the basis of their sex in contravention of s 22 of the Act. The alleged discrimination was based on the State of Tasmania's refusal to allow female teachers, whose service prior to 1969 had become non-contributory because of their resignation in order to bear children, to purchase recognition of that service for superannuation purposes at the favourable rate prescribed by reg 14 of the 1994 Transitional Regulations. The State contended that the Crown immunity granted in respect of discriminatory conduct in relation to employment which would otherwise be unlawful under s 14 of the Act, would largely be rendered nugatory if s 22 were to be construed as covering the same field as s 14. Consequently, it was said, s 22 should be construed as not extending to acts of discrimination, such as the provision of superannuation benefits to employees, which fall within the scope of s 14. The Inquiry Commissioner accepted the submissions of the State and concluded that s 14 of the Act: · covered the field with respect to discrimination in the matter of the provision of superannuation benefits by an employer to its employees, which meant that s 22 had no application to such discrimination; · since, by virtue of s 12(1), s 14 was not binding on the Crown in right of a State, it gave the class represented by the AEU no redress against the State of Tasmania.