Long v Secretary, Department of Education

The Decision under appeal

1. The Tribunal below set out the relevant legislative framework under the ADA at [11]-[19] of the Reasons for Decision in particular, what constitutes discrimination on the ground of sex under s 24 of the ADA which provides as follows: 24 What constitutes discrimination on the ground of sex (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if the perpetrator - (a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. …. (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs - (a) are a woman who is pregnant and a man, or (b) are not of the same marital or domestic status, or (c) are a woman who is breastfeeding and a man.
2. The Tribunal correctly identified that the test for direct discrimination required satisfaction of two elements: that there was differential treatment (the treatment of Mr Long was less favourable that the treatment afforded to a person of a different sex in circumstances the same or not materially different) and causation (the real reason for the alleged discriminator's act).
3. In considering "treatment", the Tribunal referred to Purvis v New South Wales (2003) 217 CLR 92 ("Purvis"), a dispute involving direct disability discrimination and the comparison required to be made under s 5(1) of the Disability Discrimination Act 1992 (Cth). In Purvis, the "circumstances", for the purposes of s 5(1), was held to be at [224] (per Gummow, Hayne and Heydon JJ): "... all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator."
4. In considering "causation", the Tribunal referred to s 4A of the ADA; had regard to the submissions of Mr Long including his reliance on Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR 165; referred to Mr Long's case relying on inference and the principles in Victoria v McKenna [1999] VSC 310 at [42]; and also referred to the principles in Department of Health v Arumugam [1988] VR 319 explaining that inferences cannot be made where more probable and innocent explanations are available on the evidence.
5. The Tribunal considered the relevant leave policies contained in Chapter 4 of the Teachers' Handbook, noting they were subject to certain eligibility requirements, their differences and their origins: Determination No 7 of 2016 under the Teaching Service Act 1980 (NSW) ("TS Act") for maternity leave; Determination No 9 of the 2016 under the TS Act for adoption leave; Determination No. 8 of 2016 of the TS Act for parental leave; Determination No 1 of 2018 under the Government Sector Employment Act 2013 (NSW) ("GSEA") and the 2018 Premiers Memorandum for altruistic surrogacy leave (also recording the evolution of that leave entitlement).
6. Construing the terms of the various policies, the Tribunal held that maternity leave was only available to an employee who was pregnant or gave birth to a child and imposed no condition that the employee had to be caring for the child. Consequently, the Tribunal found maternity leave entitlements are available to women delivering still births and birth mothers under surrogacy arrangements.
7. Importantly, for the purposes of this appeal, the Tribunal noted that the Department relied on the exception in s 35 of the ADA which provides: 35 Pregnancy, childbirth and breastfeeding Nothing in this Part renders unlawful discrimination by a person against a man on the ground of sex by reason only of the fact that that person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.
8. The Tribunal accepted that the maternity leave entitlements were rights or privileges in connection with pregnancy, childbirth or breastfeeding and so fell within s 35 of the ADA which was a "complete answer" to Mr Long's discrimination claim on the basis of sex.
9. The Tribunal further noted at [10] that the Department did not rely on the defence under s 54 of the ADA to the effect that its policy and application of the Department's policies to Mr Long did not amount to unlawful discrimination. The Tribunal accurately recorded the Department's contention as follows: "The Respondent does not rely on the Surrogacy Act, and the Department's policies, to 'excuse' discriminatory treatment. Critically, that context helps to explain why the conduct of the respondent is not discriminatory in the first place. As set out further below, it evidences why Mr Long was not treated differently on a prohibited ground (re: direct discrimination), explains the non-discriminatory reasons why Mr Long was treated as he was (re: direct discrimination), and illustrates the basis on which the condition or requirement impugned by him is reasonable (re: direct discrimination)."
10. The Tribunal set out the general objects of the Surrogacy Act, the definition of a "surrogacy arrangement" and of "commercial surrogacy arrangement" (which is prohibited under the Surrogacy Act); and the requirements under the Surrogacy Act for obtaining parentage orders ([20]-[26]). This was relevant because Mr Long's was a biological father of the twins as a result of a surrogacy arrangement and his application for leave had been processed under the altruistic surrogacy leave policy.
11. The Tribunal noted that 14 weeks paid leave is provided to male or female teachers who are the primary caregiver of a child born through altruistic surrogacy. The Tribunal noted the specific requirements in the Teachers Handbook at 4.2.6 (which reflects the terms of the 2018 Determination) as follows: "Altruistic surrogacy leave is available teachers who are able to demonstrate they are the parent of a child as follows: Intended parent(s) are to notify the Department at least four (4) months before the expected birth and provide a copy of the pre-conception surrogacy agreement, as provided for under the Surrogacy Act 2010 (redacted as necessary to protect the privacy of non-employees); At the time of assuming the role of primary or secondary carer the teacher is to provide a statutory declaration advising that they are now the primary or secondar carer of the child and intend to make an application for parentage orders as required under the Surrogacy At 2010; A copy of the parentage order application (redacted as necessary) is provided as soon as practicable after it is lodged; and A copy of the parentage order (redacted as necessary) is provided as soon as practicable after it is granted."
12. After considering the parties submissions and the evidence the Tribunal first noted that in a surrogacy arrangement, parentage is determined by agreement and law: it does not necessarily include the biological mother or father but it can. The Tribunal noted the dispute about certain aspects of the surrogacy arrangement entered into by Mr Long and particularly whether or not it was a commercial surrogacy within the meaning of the Surrogacy Act (which in New South Wales is illegal). Without determining that issue, the Tribunal relied on the Surrogacy Act for the purpose of explaining how a person who becomes a parent by way of a surrogacy arrangement obtains a parentage order, which is also the requirement for proof of parentage under the Department's altruistic surrogacy leave policy.
13. The Tribunal noted at [36] that under the terms of the maternity leave and adoption leave entitlements in the Teachers Handbook, there were not similar requirements to demonstrate "parentage" in order to be eligible for the leave. It was also noted that teachers not eligible for maternity, adoption or surrogacy leave were only entitled to 1 week of paid leave as "parental leave" (recently increased to 2 weeks).
14. The Tribunal then proceeded to explain the evidence concerning the Treatment, noting that it was undisputed that the Department initially rejected Mr Long's application for 14 weeks paid leave for the reason that he had not complied with the requirements in the altruistic surrogacy leave policy in the Teacher's Handbook. The evidence revealed that within the Department's SAP payroll system, there was not an option for selecting "surrogacy leave" and so those wanted to apply for surrogacy leave were required to apply using the "adoption leave" payroll code. This meant that although Mr Long's application was for altruistic surrogacy leave, he applied using the adoption leave application. Once Mr Long provided a statutory declaration that he was the primary caregiver of the children, that he would be applying for a parentage order and would provide a copy to the Department, his application was approved and the leave paid.
15. Although not pleaded in his Points of Claim, Mr Long also contended that he was subjected to adverse or less favourable treatment in that: 1. his application was processed under inappropriate categories (adoption leave); 2. his inquiry regarding surrogacy leave entitlements was described as "weird" by an employee; 3. he was told that the most he was entitled to was one week because he was a man.
16. The Tribunal found on the evidence that the Department's practice for surrogacy leave applications was to process them under "adoption leave" and that there was no evidence that a real or hypothetical employee would have been treated differently. Ultimately, the Tribunal determined that there was no differential treatment in relation to the characterisation of Mr Long's leave application by the Respondent.
17. The Tribunal accepted Mr Long's argument that historically men have been treated as if they are not the primary care giver of children from birth and that a vast majority of caregivers are women. However, the Tribunal determined that the evidence did not support a finding that the Department's policies reflected this stereotype to the effect that it is unlawfully discriminatory of men.
18. In relation to Mr Long's further complaints (at [29(2) and (3)] above) the Tribunal found on the evidence that: 1. given the rarity of surrogacy leave applications, the more probable and innocent explanation for Mr Long's request being described as 'weird' was because the employee taking the call had not dealt with a surrogacy leave application before and not because Mr Long was a man or homosexual; and 2. Mr Long was told he could either apply for altruistic surrogacy leave or apply for one week full pay. The Tribunal refused to draw an inference that the Department considered Mr Long unsuitable for more than one week's parental leave because he was a man.
19. In respect of the appropriate comparator, the Tribunal held at [93], relying on Purvis, that it needed to "consider the objective circumstances of the treatment, which includes, as submitted by the Respondent, the context of the Applicant becoming a biological parent as a result of the surrogacy arrangement". The Tribunal rejected Mr Long's argument that the correct comparator was a female teacher applying for maternity leave after giving birth to a child. The Tribunal determined that such a comparator was "not specific enough to the relevant objective circumstances" and the circumstances of a surrogacy arrangement were "materially different" even where a woman is the biological parent. Instead, the Tribunal determined that for the purposes of the direct discrimination claim the appropriate comparator was a female teacher being a child's biological parent who will be the primary caregiver of that child born as a result of a surrogacy arrangement.
20. Having identified the comparator, the Tribunal then addressed the question of how that person would have been treated by the Department if they had applied for the leave. The Tribunal concluded that on the evidence the comparator would have been treated no differently from Mr Long, finding that the Department's policies apply the same criteria to women who become parents through surrogacy as apply to men. Evidence of the 10 altruistic surrogacy leave applications since 2013 supported this conclusion: two had been rejected on the basis of a failure to provide a statutory declaration and parentage orders; eight had been approved (five female and three male) on the basis of providing the parentage orders.
21. The Tribunal rejected Mr Long's submissions and evidence (reflective of his Points of Claim) to the effect that the reason he was unable to obtain a parentage order from the Supreme Court was because he was the biological father of the children (at [75]). Rather, the Tribunal found that Mr Long "has not followed through with the intention he expressed in his statutory declaration to apply for a parentage order, which means that he has not complied with the [Department's] requirements under its Altruistic Surrogacy Leave policy".
22. After correctly noting the tests for indirect discrimination in ADA, s 24(1)(b), the Tribunal rejected Mr Long's indirect discrimination claim including his contention that the condition imposed by the Department was that he be female in order to receive 14 weeks paid leave to be the main carer of his children after their birth. Mr Long had contended it was the very fact that he (as biological father) had to apply under the altruistic surrogacy policy to obtain 14 weeks paid leave meant that he was disadvantaged by the overall approach of the leave provisions which gave greater access to leave to women to look after their newborn children.
23. The Tribunal accepted that the Department imposed the requirement on Mr Long to provide a parentage order pursuant to the policy contained in the Teachers Handbook which is applicable to all applicants irrespective of gender or sexuality. While the Tribunal accepted that a substantially higher proportion of women are primary caregivers of children, there was no evidence that a substantially higher proportion of women become parents via altruistic surrogacy than men and in any event, Mr Long failed to satisfy his burden of establishing under s 24(1)(b) that a substantially higher proportion of men are unable to comply with the evidentiary requirements for altruistic surrogacy leave.
24. The Tribunal also found that while there was no requirement on the Department to adopt the obligations to prove parentage under the Surrogacy Act, there is nothing preventing the Department structuring its leave policies by setting employment conditions which do not undermine the child-protection focus of the Surrogacy Act. The Department's adoption of the new altruistic surrogacy leave policies after the introduction of the Surrogacy Act and the following extension consultation, was therefore reasonable.

Nature of an appeal

1. An internal appeal lay to the Tribunal constituted by the Appeal Panel on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) ("NCAT Act"). If no question of law arises, the appellant may seek leave to appeal on any other grounds.
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith(2017) 95 NSWLR 597, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."

Grounds of Appeal

1. Mr Long's Notice of Appeal dated 23 May 2022 listed one broad error: "NCAT made an error of law by interpreting the Anti-Discrimination Act 1977."
2. With consent of the Department, Mr Long filed formal Grounds for Appeal dated 16 June 2022 saying that the Tribunal erred in law when it determined the claim under ss 24 and 25 of the ADA as follows (set out in full): Determining the claim, including but not limited to the comparator, by reference to the Surrogacy Act 2010 (NSW) (SA) and the Teaching Services Act 1980 (NSW) (TSA) when the Respondent did not: rely upon, nor plead to, s 54 of the ADA; did not provide evidence of and could as a matter of law meet the test for necessity under that test [paragraphs 3, 20-28, 65-75]. Nothing in the SA or the TSA necessitated the introduction of the relevant Determination implementing the SA. Failure to plead reliance on s 54 or satisfy the test for necessity of implementing the SA meant the Respondent could not have any regard to that matter for the purpose of determining the claim. Determining the comparator by reference to subjective and not objective facts, the latter including that the Respondent had categorised the Applicant as unable to obtain leave under its surrogacy policies [paragraph 82, 89-96, 119 of the Decision] by reference to its policy/Determination. The correct comparison was as pleaded in the Appellant's Points of Claim dated 28 May 2021 (POC) (paragraphs 15, 30 and 37 of the POC). Determining the test for indirect discrimination by reference to the comparator, which is a test only relevant to the test for direct discrimination [paragraph 125 of the Decision]. Determining test for reasonableness in relation to the claim for indirect discrimination [paragraph 128 of the Decision], by reference to the Teaching Services Act and New South Wales v Amery (2006) 230 CLR 174 (Amery), even though the policies/the relevant determination were not matters "outside the control of the parties" (as the relevant Award was held to be in Amery). Failing to make findings and weigh the factors going to the reasonableness pleaded by the Applicant in the POC (paragraphs 33 and 40 of the POC). Determining that s 169 of the IRA and s 52(2) of the Government Sector Employment Act 2013 (NSW) (GSEA) did not operate to disentitle the Respondent from relying upon the relevant Determination [paragraph 130 of the Decision]. Determining that the Respondent could rely on s 35 [paragraphs 101-109 of the Decision]: by finding the 2021 Determination had not been adopted and so had no relevance to this question; by reference only to the maternity leave provisions rather than the parental leave provisions overall; and because "the physical condition of pregnancy and giving birth to a child attached to the entitlement to maternity leave" without giving meaning to the terms "only" and "in relation to". Determined the claim by reference to the Complaint dated 19 August 2020 [paragraphs 3, 20-26] rather than the pleadings dated on 28 May 2021, including that the Appellant relied upon s 39 of the Surrogacy Act 2010 (SA) when he did not. Made findings so unreasonable they could not be made including: that the evidence that his application being processed by the Respondent under 'inappropriate categories', that his inquiry regarding surrogacy leave entitlements was described as 'weird' by an employee of the Department, and that he was told by the Department that 'the most he was entitled to was 1 week because he was a man' (the Additional Treatment) was not "explicitly relied on by the Applicant as constituting 'differential treatment"' when it was clearly set out in his submissions [paragraph 81 of the Decision and paragraph 7 of the Closing Submissions]; An inference that the comment that the Applicant's application to be primary carer was 'weird' [paragraphs 83-85 of the Decision] did not relate to his status as a man as a primary caregiver when the person who made the comment was not provided for cross-examination and the alternative 'explanation' was an inference unsupported by any evidence pertaining to this witness; Drawing an inference in reliance on the existing regime of leave which was of its nature inherently biased against men being primary carers of children [paragraphs 83-85 of the Decision]; Finding that the Respondent's policies did not discriminate against men as primary carers [paragraph 117 of the Decision], noting the Applicant will seek to rely on new evidence arising after the hearing that shows the Respondent has not made available the same 14 weeks paid leave to men as for women caring for their children in order to address the lack of men taking parental leave. Failing to give reasons regarding: the finding that discrimination against men on the basis of the surrogacy policies was reasonable [paragraph 128 of the Decision]. the factors going to reasonableness pleaded by the Applicant in the POC [paragraphs 33 and 40 of the POC and paragraph 132 of the Decision].
3. Although not included in the Grounds of Appeal, at the hearing Mr Long also contended that various findings were against the weight of evidence and therefore so unreasonable that those findings could not have been made. It was acknowledged that leave would be required to raise these grounds of appeal.

Materials before the Appeal Panel

1. In deciding the appeal we have had regard to the following: 1. The Notice of Appeal dated 23 May 2022; 2. The Reply to Appeal dated 8 June 2022; 3. The Grounds of Appeal dated 16 June 2022; 4. Mr Long's submissions dated 8 July 2022; 5. The Department's submissions dated 17 August 2022; 6. Mr Long's submissions in reply dated 7 September 2022; 7. Transcript of the hearing before the Tribunal below; 8. Materials relied upon by Mr Long below including: 1. undated President's Report to NCAT; 2. Points of Claim filed on 28 May 2021; 3. affidavits of Mr Long dated 28 May 2021 and 16 July 2021; 4. written submissions dated 31 May 2021 and 30 September 2021. 1. Materials relied upon by the Department below including: 1. Points of Defence filed on 1 July 2021; 2. Affidavit of Anna Kulesz dated 1 July 2021; 3. Affidavit of Scott Dries dated 30 June 2021; 4. Affidavit of Leanne Beggs dated 30 June 2021; 5. Affidavit of Andrew Bell dated 1 July 2021 6. Written submissions dated 1 July 2021 and 30 September 2021. 1. Material produced under summons.
2. Mr Long also sought leave to rely on a further affidavit on the appeal of Emma Thomson dated 5 July 2022 ("Thomson affidavit") about the 2022 policy change. To the extent we decide to allow new evidence on the appeal, the Department also sought to rely on a responsive affidavit from Ms Kulesz dated 17 August 2022. We will address the new evidence in the reasons below.

Appellant's Submissions

1. Mr Long's appeal is brought only against the decision of the Tribunal in respect of his claim for direct and indirect discrimination on the basis of sex.
2. As a general overview, Mr Long contends that his appeal starts and ends with the question: were men treated less favourably than women in their ability to access paid parental leave as employees of the Department? He contends that as a biological father of the twins he should not have had to apply for leave under the Altruistic Surrogacy leave arrangements provided for by Department and, as a condition of that leave, apply for and obtain a parentage order from the Supreme Court under the Surrogacy Act.
3. Mr Long contends that women have been disproportionately represented as the primary carers of children, particularly from birth, and that this assumption has, until recently, been hard wired into the Department's policies. This was reflected in the Department's maternity leave policies which imposed a requirement or condition that only allowed women the ability to access 14 weeks leave (through maternity leave provision) compared to one week's paternity leave for men.
4. Importantly, it seems to us that an assumption permeated the foundation of Mr Long's complaint before the Tribunal below - that maternity leave is provided by the Department to enable women to care for their newborn children. That assumption seemed to prevail on appeal despite the unchallenged finding of the Tribunal that maternity leave "attaches to the physical condition of pregnancy, childbirth and breastfeeding" and not to the caregiving responsibilities of new mothers.
5. These submissions underpin each of the specific grounds of appeal which we address in turn.

Grounds 1 and 6: Reliance on Surrogacy Act, Teaching Services Act and related Determinations

1. Central to each of these grounds is the assertion by Mr Long that the Tribunal erroneously found that the Department could rely on the Surrogacy Act, the TS Act and related Determinations to excuse the discriminatory Treatment. This was despite the Department failing to plead (or expressly disavowing) reliance on s 54 of the ADA and s 39 of the Surrogacy Act and because of the operation of s 169 Industrial Relations Act ("IRA") and s 52(2) of the GSEA.
2. Section 54 of the ADA is as follows: 54 ACTS DONE UNDER STATUTORY AUTHORITY (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of-- (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or … (3) Except as provided in this section, this Act has effect notwithstanding anything contained in - … (c1) the Co-operatives (Adoption of National Law) Act 2012 and the Co-operatives National Law (NSW), … (f) the Registered Clubs Act 1976 , or any instrument of whatever nature made or approved thereunder.
3. Contrary to the submissions of Mr Long, the Department did not rely on this provision to explain why the Treatment was not discriminatory but as an explanation for a distinguishing aspect of Mr Long's case - that he was a biological father through a surrogacy arrangement. The Tribunal was correct to treat this factual circumstance as part of the "circumstances" relevant to the determination of the question whether there had been discrimination under s 24 of the ADA. We agree with the Tribunal's conclusion that the fact that Mr Long was a parent through a surrogacy arrangement was an important objective circumstance relevant to the Treatment and, as argued by the Department, there is no warrant on the statutory text for excluding it from the analysis.
4. Mr Long's case before the Tribunal (and on this appeal) sought to, in effect, make the way in which he became the biological father of the children, irrelevant. He did not argue that he was discriminated against because he was a father by surrogacy. Rather, he contends that as a biological parent of a child for whom he is the primary caregiver, he should have the same access to 14 weeks paid leave that a woman is given access to under the Department's maternity leave provisions. Consequently, Mr Long argued that neither the failure to obtain a parentage order nor his inability to be able to access other parts of the leave policies, is a proper explanation for this difference in treatment.
5. In New South Wales there is a presumption of parentage in relation to children conceived through a 'fertilisation procedure' in favour of the birth mother: Status of Children Act 1996 (NSW) (s 14). As noted in the extrinsic materials to the Surrogacy Act provided by Mr Long, the Surrogacy Act was introduced, among other things, to complement and give effect to the presumption of parentage. The legal context governing surrogacy in NSW and the policies implemented by the NSW public sector and the Department as a result, were therefore highly relevant in the circumstance of Mr Long being a biological father by surrogacy even though the Tribunal agreed with Mr Long's submissions that the Surrogacy Act did not mandate the eligibility requirements for the Department's leave policies nor impose any requirement or condition.
6. We agree with the submission of the Department, that her response to the legal context governing surrogacy in NSW and the policies the Department implemented in response, meant that Mr Long was treated differently from a woman who is a biological mother of a child who accessed maternity leave under the Department's maternity leave provisions. However, that difference in treatment had nothing to do with his sex: it was a result of the manner in which he became a biological father of the twins - through a surrogacy arrangement.
7. In our view there is no error in the approach taken by the Tribunal in respect of s 54 of the ADA.
8. In relation to s 169 of the IRA and s 52 of the GSEA, Mr Long said that the Department relied on the Surrogacy Act and the Determination made under s 52 of the GSEA "as the entire explanation of their conduct in relation to the Applicant" and it was error for the Tribunal to find such reliance was available.
9. Mr Long argued by reference s 52(2) of the GSEA, which states: Conditions of employment that are so determined apply to Public Service employees unless inconsistent with this Act, State industrial instruments or any other law. that any breach of the ADA makes the Determination inconsistent with the ADA and thus of no effect. This is consistent with s 169 of the IRA and s 54(1)(d) of the ADA which provides that Awards and other industrial instruments are not covered by the statutory exception. As we understood the argument, as there was an allegation of breach of the ADA, the 2018 Determination was of no effect consistent with s 169 of the IRA.
10. We do not agree that any such error occurred. First, as noted above, we do not agree that the Tribunal allowed reliance upon nor did the Department in fact rely upon the defence in s 54 of the ADA. Secondly, while s 169 empowers the Industrial Relations Commission to vary industrial instruments to remove discrimination, the Department's policies are not instruments under s 52 of the GSEA; the teaching service is not part of the "public service" under the GSEA.
11. For these reasons, Mr Long has failed to establish that the Tribunal erred by referring to the Surrogacy Act, TS Act and associated policies. We reject his contention that the legislative context was only relevant if the Department had pleaded and relied upon s 54 as a defence (and consequently was required to and failed to demonstrate necessity).
12. This ground of appeal fails.

Ground 2: Wrong determination of comparator

1. We do not consider that Mr Long has established error in the Tribunal's determination of the comparator (being a female teacher who will be primary caregiver of a child as a result of a surrogacy arrangement).
2. Mr Long argued that the Tribunal should have accepted the comparator was that pleaded in his Points of Claim at [15], [30] and [37] - female teachers who are employees of the Department who apply for 14 weeks paid leave after the birth of their biological children who were granted 14 weeks paid leave; not required to repay leave paid to them and not asked to provide a parentage order.
3. Mr Long says that the comparator adopted by the Tribunal is in error as it authorises reliance on the Surrogacy Act for the policies that it says were applicable to Mr Long and, as it was determined by reference to the subjective classification applied by the Department, no one could be successful under the direct discrimination provisions where a respondent relied on policies that purport to give effect by reference to factors other than the grounds relied upon. As Mr Long had never argued that he had been discriminated against on the basis of being a father by surrogacy, the fact he could be assessed under other leave policies was no answer to his claim that as a male full-time employee of the Department with biological children to care for immediately following birth, was treated different to women who were full-time employees of the Department biological children to care for immediately following birth.
4. There was no dispute about the Tribunal's description of the function of the comparator and the need to identify the objective features surrounding the impugned treatment in order to isolate the real reason for that treatment applying Purvis. Rather, Mr Long said the Tribunal erred in considering the circumstance of Mr Long becoming a biological parent as a result of a surrogacy arrangement as one such feature.
5. Noting that a woman may become a biological parent by contributing her egg in a surrogacy arrangement through which another woman bears a child, the Tribunal concluded that comparing Mr Long with all female teachers who become biological parents was erroneous for the reason that "parentage arising from a woman's entry into a surrogacy arrangement is materially different from parentage arising through a woman giving birth to a child, even where the woman is a biological parent of the child." This finding was not challenged in this appeal and such a finding was available on the evidence before the Tribunal.
6. As we understood the argument, Mr Long contended parentage via surrogacy (however that arises) should have been an irrelevant circumstance despite the legal and social considerations (explained by the Department) which make surrogacy arrangements materially different from other parent-child relationships.
7. We are unpersuaded that there was error in the process of determination and ultimate conclusion as to the appropriate comparator. The Tribunal correctly applied Purvis to determine that the objective circumstances of the Treatment included the context of Mr Long becoming a biological parent as a result of a surrogacy arrangement. The fact that was considered was not what circumstances the Department imposed on Mr Long via altruistic surrogacy policies: rather the circumstance was that Mr Long was a biological father by way of surrogacy - that was not something imposed by Department. On the evidence before the Tribunal, Mr Long's options as a biological father by way of surrogacy were the very same as a biological mother by way of surrogacy. An appropriate comparator in these circumstances was a female teacher who is the primary caregiver of the child born through surrogacy.
8. Accordingly, we reject ground 2.

Grounds 3 to 5 and 10: Incorrect determination of the test

1. These grounds of appeal allege that there were errors in way the Tribunal determined the test for indirect discrimination and reasonableness including failing to make findings and weigh the factors going to reasonableness (which is ground 5) and failed to provide reasons (which is ground 10).

Comparator issue: Ground 3

1. Mr Long contends that the Tribunal's reference to the comparator at [125] (which is relevant only to the test for direct discrimination) meant that it failed to properly address the question before it, including whether the Department imposed the condition or requirement pleaded by him: that Mr Long be female in order to receive 14 weeks paid leave to be the main care giver of his children after they were born. Mr Long contends that just because other leave entitlement provisions were available for him to be assessed under, does not mean that he was not disadvantaged overall by the leave provisions which give women greater access to leave to look after newborn children.
2. We do not consider that the Tribunal applied the wrong test, it merely referred back to its findings in the context of the comparator to identify whether there was differential treatment. The Tribunal construed the terms of the leave entitlement policies and made the finding at [118] (not challenged on this appeal) as follows: The [Department's] policies actually make no allowance for paid leave (beyond 1 week paid parental leave, or two weeks at half-pay) for biological parents on the basis of whether they are the primary caregiver or not. The effect of this is that a woman who is the biological mother of a child, but not the birth mother of that child, gets the same amount of paid leave as a man who is the biological father of a child, which is 1 week's paid parental leave. In contrast, a woman who gives birth to a child but relinquishes her parentage pursuant to the [Surrogacy Act], and so has no caregiving role, would be entitled to 14 weeks' paid maternity leave regardless.
3. The reference to this finding does not equate to erroneously applying the comparator for the purposes of indirect discrimination claim (as argued by Mr Long). Rather it highlights the incorrect assumption (and contrary to the findings of the Tribunal) which underpins Mr Long's contentions - that the 14 weeks paid leave attaches to the main care giver of the child.
4. We do not consider there was error in the Tribunal's identification of the condition or requirement for the purpose of the indirect discrimination complaint, being the provision of a parentage order. As correctly noted by the Tribunal, this condition was imposed through the Department's policy for altruistic surrogacy leave irrespective of sex.
5. We reject ground 3.

Reasonableness

1. Having identified that the relevant condition or requirement was the provision of a parentage order, the Tribunal was then required to determine whether a substantially higher proportion of men are unable to comply with the requirements for surrogacy leave. The Tribunal found there was no evidence to support that proposition and consequently, Mr Long had not discharged his onus in this regard.
2. In reaching that conclusion, s 24(1)(b) could clearly not be satisfied and so it was not necessary for the Tribunal to determine the question of whether the requirement or condition it had identified was reasonable in the circumstances.
3. In any event, the Tribunal, concluded at [132] that it was reasonable for the Department to structure its leave policies by setting employment conditions. The Tribunal relied on the general principle expressed by Gleeson CJ in New South Wales v Amery (2006) 230 CLR 174 ("Amery"), that statutory and policy context forms part of the "circumstances of the case" in the enquiry as to "reasonableness" in s 24(1)(b).
4. Mr Long argued on appeal that the Tribunal's determination of reasonableness ([132]) for the purposes of the indirect discrimination claim, was infected by the errors referred to in ground 3 but further, was in error in relying on the decision of Amery.
5. We do not agree. First, we are not satisfied the Tribunal was in error in the way contended for in ground 3. Further, the Tribunal's approach was not inconsistent with the High Court's analysis in Amery (Gleeson CJ): the statutory scheme within which the Department functioned was one of the "circumstances of the case" that s 24(1)(b) of the ADA required to be considered; the existence of an industrial agreement and the wider industrial significance might be a material circumstance bearing upon the reasonableness of the Department's conduct.
6. Consequently, we reject grounds 3 and 4.
7. In support of his arguments about reasonableness, Mr Long has sought leave to rely on new evidence in the Thomson affidavit. While the evidence in the Thomson affidavit may have not have been available at the time of the hearing before the Tribunal, given our findings on the question of reasonableness, we do not see it as being relevant. Mr Long's pleaded requirement or condition (that he be female in order to receive 14 weeks paid leave to be the main care giver of his children after they were born) was expressly rejected by the Tribunal. The fresh evidence in the Thomson affidavit would not have been relevant at the time of the decision below as it is about policy changes that have been announced after the Treatment occurred and has no impact on the correctness of the Tribunal's decision.
8. In any event, we do not consider the evidence has the effect Mr Long contends for - an admission that the policies were discriminatory.
9. For these reasons, we do not grant leave for Mr Long to rely on the Thomson affidavit.

Findings and failure to provide reasons regarding reasonableness

1. Grounds 5 and 10 must also fail. Having expressly rejected the requirement or condition pleaded by Mr Long, contrary to the submissions of Mr Long on this appeal, the Tribunal was not required to determine the reasonableness of that condition or requirement, nor was it required to weigh up the factors relevant to the reasonableness of that requirement or condition or give reasons about those factors.
2. Further, in so far as it is contended that the Tribunal found that the Department had discriminated against men - no such finding was made. Instead, the Tribunal determined (at [117]) that the evidence did not support a finding that the Department's policies reflect the stereotype of women being the primary carers of children to the effect that they are unlawfully discriminatory to men. To the extent this is a challenge to a factual finding, we reject it for the same reasons set out in respect of the challenge to factual findings in ground 9 below.

Ground 7: Reliance on s 35 of the ADA

1. This is a challenge to the Tribunal's conclusion that the defence in s 35 of the ADA applied and was a complete answer to Mr Long's claim of discrimination on the basis of sex ([101], [122] and [133]). We do not see any error in the Tribunal determining the Department could rely on s 35.
2. Section 35 provides as follows: 35 PREGNANCY, CHILDBIRTH AND BREASTFEEDING Nothing in this Part renders unlawful discrimination by a person against a man on the ground of sex by reason only of the fact that that person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.
3. We note ground 7(a) of Mr Long's grounds of appeal which seeks to impugn the Tribunal's conclusion that the 2021 Determination was not relevant to s 35 as it did not apply to Mr Long (for the reason that it had not yet been adopted) ([104]). No submissions were made in writing or orally at the hearing explaining this alleged error. We do not understand the basis upon which this complaint is brought and we reject it.
4. Turning to ground 7(b), Mr Long's contention before the Tribunal (which was not accepted) was that s 35 should not apply for the reason that the maternity leave policy was a sub-policy within the Department's parental leave policies, which viewed as one set of holistic policies were not "only" "in connection" with pregnancy, childbirth or breastfeeding. The Tribunal construed the various parts of the Teachers Handbook and the Determinations on which the various leave entitlements are based and construed s 35 in the context of the maternity leave provisions, which it correctly found was a policy only in connection with pregnancy and childbirth.
5. A plain reading of the Determination No 7 of 2016 for Maternity Leave and the Teacher's Handbook makes clear that an employee is eligible for maternity leave by becoming pregnant and/or giving birth to a child: it is available where the employee has given birth to a stillborn baby and to surrogate mothers who will have no caregiving role for the child. The Tribunal was correct to find that the maternity leave entitlement "attaches to the physical condition of pregnancy and giving birth to a child" rather than on the basis of a caregiving role for the child after birth.
6. Further, the Tribunal's application of s 35 to the Maternity Leave policy was consistent with how Mr Long had particularised his case referring to clauses 4.2.1.1 (the Maternity provisions) and contending that he should be treated identically to a woman who had given birth. In that context, we do not accept his arguments on this appeal that the proposition that s 35 is a complete answer is simply too broad as it relates to men. Nor do we accept that the introduction of new paternity leave provisions is an admission that the maternity leave and paternity leave regime was discriminatory.
7. In any event, we reject the contention that the Tribunal did not have regard to the entire set of leave entitlements: they were expressly referred to and set out in [31], [102]-[105].
8. For these reasons, ground 7(b) must fail.
9. In respect of ground 7(c), we do not see error in the approach taken by the Tribunal in construing the words "only" and "in connection with" in s 35 nor its reliance on Christopher Budd v Australian Federal Police [2018] FWCFB 6095 where the Full Bench of the Fair Work Commission construed the equivalent provision to s 35 in s 31 of the Commonwealth Sex Discrimination Act 1984.
10. We agree with Mr Long that s 35 must be "construed consistent with the language and purpose of all the provisions of the statute, determined in context and by reference to the language of the instrument viewed as a whole and resolving any conflict in a way that maintains unit of the relevant provisions: (Project Blue Sky v ABA (1998) 194 CLR 355 at 381-382 per McHugh, Gummow, Kirby and Hayne JJ). However, as noted above, the Tribunal correctly construed the eligibility criteria in the maternity leave policy and determined that overall, the maternity leave policy affords a right or privilege to leave on the basis solely of pregnancy, childbirth or breastfeeding- there is no other basis upon which an employee can access the entitlement including, as argued by Mr Long, on the basis of being the primary care giver of the child.
11. These findings were significant in the context of construing s 35 as it meant that the basis upon which Mr Long was excluded from access to 14 weeks paid maternity leave was solely on the basis of his sex: as a man he could not be pregnant, give birth or breastfeed. The word "only" was clearly satisfied and the "connection" required to pregnancy and giving birth was plain.
12. We also reject Mr Long's contention that we may take judicial notice of the fact "that women do not need 14 weeks for childbirth, pregnancy or breastfeeding". This contention was raised for the first time on appeal and was not dealt with at all or proved by evidence in the Tribunal. In any event, the argument does not assist Mr Long in his challenge to the Tribunal's conclusion that s 35 applied to the conduct of the Department.
13. As we are unpersuaded the Tribunal erred in the manner alleged by Mr Long in respect of each of ground s7(a),(b) and (c), this ground of appeal fails.

Ground 8: relevance of s 39 of the Surrogacy Act

1. Mr Long contends that the Tribunal erred by making its decision on the basis of the original discrimination complaint rather than the pleadings. In particular, it is contended that the Tribunal erroneously considered s 39 Surrogacy Act which was not pleaded by Mr Long.
2. We do not see any basis for the complaint nor error in the approach of the Tribunal. Mr Long specifically pleaded that he was unable to obtain a parentage order for the reason that he was the biological father of the children. It was his burden to demonstrate this fact. Given Mr Long's contention, it was entirely appropriate and necessary for the Tribunal to have regard to the legislative regime (and the effect of a parentage order as set out in s 39 of the Surrogacy Act) to determine whether Mr Long's proposition was correct. The Tribunal could only consider the accuracy of the fact pleaded by interpreting the Surrogacy Act, in particular who under the Surrogacy Act can obtain a parentage order and the process by which that occurs.
3. The Tribunal ultimately concluded that on a proper construction of the Surrogacy Act, it was satisfied that a biological parent is capable of being granted a parentage order. There was no error in this conclusion or absence of jurisdiction (as argued by Mr Long) for the Tribunal to consider the provisions in the Surrogacy Act in order to determine whether or not it was satisfied as to the fact pleaded by Mr Long - that he was unable to obtain a parentage order as a biological father. The Tribunal did not make a finding is to whether Mr Long could or could not obtain a parentage order under the Surrogacy Act. It simply interpreted the provisions to determine whether it was satisfied that Mr Long had proven the fact he had pleaded.
4. Contrary to the arguments of Mr Long, the Tribunal did not rely on s 39 Surrogacy Act to prove a breach of it by Mr Long; nor, in this regard, did it exercise a power that it has not been given (within the meaning of Citta Hobart Pty Ltd v Cawthorne (2022) 98 ALJR 476).
5. We reject appeal ground 8.

Grounds 9: findings so unreasonable and leave to appeal

1. Mr Long contends that the Tribunal made findings so unreasonable they could not be made. These were three factual findings (grounds 9(a)-(c)) and while the fourth (ground 9(d)) was expressed to be a challenge to the Tribunal's conclusion on the evidence, Mr Long accepts that he needs leave to appeal on these grounds.
2. We refuse leave to appeal for the following reasons: 1. Mr Long has not demonstrated "something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact "(see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; and Collins v Urban [2014] NSWCATAP 17 at [84(1)]). 2. There is no injustice which is reasonably clear, in the sense of going beyond merely what is arguable, and no error that is plain and readily apparent which is central to the Tribunal's decision, so that it would be unjust to allow the finding to stand. 3. We see no factual error that was unreasonably arrived at and clearly mistaken. 4. The Tribunal did not go about the fact finding process in an unorthodox manner or in such a way that it was likely to produce an unfair result.

Orders

1. Our Order is as follows: 1. The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 January 2023