Legislation cited: Australian Capital Territory Civil and Administrative Act 2008 s 7, 82

Discrimination Act 1991 s 7, 8, 10, 70

Subordinate

Legislation cited: Fair Work Act 2009 (Cth)

Human Rights Commission Act s 53CA

Cases cited: Complainant DT232023 v The Australian Capital Territory represented by the Community Services Directorate (Discrimination) [2024] ACAT 17

Complainant DT232023 v The Australian Capital Territory represented by the Community Services Directorate (Discrimination) [2024] ACAT 89

Complainant DT292023 v The Canberra Institute of Technology (Discrimination) [2024] ACAT 42

Discrimination Act 1991 s7

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Georgiou v Spencer (No.2) [2011] FCA 22

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275

Grace Worldwide (Australia) Pty Ltd v Steve Alves [2017] NSWSC 1296

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

New South Wales v Avery [2006] HCA 14; (2006) 230 CLR 174

Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334

Shammas v Canberra Institute of Technology [2012] ACAT 24

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Taylor v August and Pemberton Pty Ltd [2023] FCA 1313

The Owners - Units Plan no 1475 v Davidson & anor (Appeal) [2022] ACAT 10

Turnbull v New South Wales Medical Board [1978] 2 NSWLR 281

Victorian Stevedoring & General Contracting Co Pty ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73

Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220

Wotton v Queensland (No.5) [2016] FCA 1457; (2016) 352 ALR 146

List of

Texts/Papers cited: J Riley, P O'Grady & C Sappideen, Macken's Law of Employment (9th Edition), (Sydney: Lawbook Co. 2022)

A Stewart, Stewart's Guide to Employment Law, (6th Edition), (Sydney: The Federation Press, 2018)

A Stewart, A Forsyth & Anors, Creighton & Stewart's Labour Law (7th Edition, (Sydney: The Federation Press, 2025)

Tribunal: Acting Presidential Member Dr W J Neville

Date of Reasons for Decision: 18 September 2025

THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY THE COMMUNITY SERVICES DIRECTORATE)

APPEAL TRIBUNAL: Acting Presidential Member Dr W J Neville

1. The orders of the original tribunal for DT 23/2023 dated 13 February 2024 are set aside.
2. The orders of the original tribunal DT 23/2023 dated 26 November 2024 are set aside.
3. The primary application be dismissed.

1. Two basic concepts from (a) the High Court of Australia, and (b) gleaned from standard texts on employment law, are important reminders in the reasons that follow.[1]
2. First, in New South Wales v Amery, the joint reasons of Gummow, Hayne and Crennan JJ confirmed the importance in every matter where there is alleged discrimination to pay close attention to the statutes in question and the regime they establish.[2] It follows that equally close attention must be paid to the facts that are to be considered in relation to those statutes.
3. Secondly, standard texts on employment law are careful to highlight the distinctions between anti-discrimination statutes, on the one hand, and protection from unlawful discrimination (and wrongful dismissal) under the Fair Work Act 2009 (Cth) (FW Act), on the other. These same texts highlight that these two statutory regimes (anti-discrimination and "Fair Work") differ in the nature of the constraints imposed on employers, where or upon whom the onus of proof rests, and in the enforcement regime available in relation to each of them.[3] Put another way, they are different regulatory regimes which have their own jurisprudence.
4. Thirdly, to speak generally but considered later in these reasons, there can also be the temptation or risk, for example, to utilise long-time principles from the law of torts, such as regarding the assessment of damages, rather than from the jurisprudence in the distinct and discrete fields relating to anti-discrimination and Fair Work.
5. As explained in the reasons that follow, these important distinctions are unfortunately and regularly not apparent in the decisions under consideration here. Indeed, in a number of respects identified in detail below, the liability decision significantly proceeds on the basis of the Application being run, and that it should be treated, as a wrongful dismissal action. The current matter does not require, and should have no reference to, the FW Act under which "fairness" (referred to generally in [34] of the liability reasons under appeal), is a factor, but which does not feature in discrimination jurisprudence.
6. In consequence of the errors in the liability judgment noted by the Appellant, and other matters identified in these reasons, the damages decision, in many respects understandably, adopted the misconceived and factually unsupported findings in the liability judgment. As well, the decision relating to damages impermissibly made further findings in relation to liability, for which there was neither evidence, nor was it part of the function of the Tribunal at first instance dealing with damages alone. There were also procedural fairness issues in relation to findings being made in the damages decision in circumstances where neither party was given the opportunity to make submissions on them. Details follow.
7. Formally, the Appellant appeals against Orders made in two decisions of this Tribunal, already generally referred to, one in relation to liability, and the other relating to damages.[4] The cornerstone of the determination of the appeal is the proper construction of sections 7, 8 and 10 of the Discrimination Act 1991 (ACT) (the D Act).
8. It can be accepted that if the liability decision is set aside, axiomatically the damages decision cannot stand.
9. For the reasons that follow, because I largely agree with the errors of law and those relating to errors of fact identified by the Appellant, plus other matters identified by the Appeal Tribunal, the appeal against the liability decision must be allowed. In consequence, the damages decision cannot stand. Although formally unnecessary to consider the damages decision, at the end of these reasons there are a number of grounds of appeal regarding the second decision relating to damages that warrant brief discussion, and which, on their own terms, would sustain the appeal against that decision also.
10. Before proceeding, it is important to acknowledge, as learned Senior Counsel for the Appellant (Ms Eastman SC) did at the outset of the hearing of the appeal, the difficult position in which the Respondent finds herself in the light of the Appeal Tribunal's decision. The Respondent was a self-represented litigant during the original hearing regarding liability. She was represented by the Legal Aid Office for the hearing regarding damages. At the appeal hearing, she was represented by Counsel, funded and instructed by the Legal Aid Office.
11. Also, as something of a preliminary matter, and noted in the damages judgment at [24], the Respondent to this Appeal took action in mid-2024 in this Tribunal against a prospective employer, the Canberra Institute of Technology (CIT), with whom she had obtained a contract of employment upon her earlier resigning from the Appellant.[5] That employment did not proceed. That matter was heard by the same Member of the Tribunal who presided over the liability hearing here under appeal. It concerned similar matters, and similar sections of the Act that require consideration here. The Tribunal there found against the same Complainant/Respondent in the current proceeding. That decision was not appealed.
12. Before proceeding to consider the appeal itself, some matters of procedure, and the legislative framework for the appeal, should be outlined.

1. The Appeal - matters of procedure, nomenclature and other statutory provisions

1. Section 82 of the Australian Capital Territory Civil and Administrative Act 2008 (the ACAT Act) provides as follows regarding the general procedural options and powers of the Appeal Tribunal (emphasis added):

_(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal - _

(a) as a new application; or

(b) as a review of all or part of the original decision on the application by the tribunal.

_(2) An appeal tribunal - _

(a) has all the powers and duties of the tribunal that made the order appealed from; and

(b) may draw inferences of fact; and

(c) may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and

(d) may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from; and

(e) may make any other order it considers appropriate.

1. As is evident, s.82(1) records the two options available to the Tribunal regarding the nature of the hearing of the appeal (new Application or re-hearing), while sub-section (2) outlines the courses available to the Appeal Tribunal consequent upon the findings made. Respectfully, the infelicitous if not opaque wording of sub-section (1) relevantly clouds, rather than illuminates, what the nature of the hearing is and what that hearing of the appeal entails. In a helpful and important decision regarding appeals from this Tribunal, similar comments were made, and instruction given by, Refshauge J in Giusida Pty Ltd v Commissioner for ACT Revenue.[6] At [36] - [38], his Honour said (emphasis added):
   1. In Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [13]- [14], I had this to say about s 82 of the ACT Civil and Administrative Tribunal Act:
      1. The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as 'hearing de novo' and 'rehearing'. These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).
      2. It seems to me that the appeal in s 82(a) is what is usually called a 'hearing de novo' and that the appeal in s 82(b) is what is usually called a 'rehearing'.
   2. I see no reason to resile from or change my view about the proper meaning of s 82 of the ACT Civil and Administrative Tribunal Act as here expressed. Indeed, careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and generous power is intended and not one which restricts original decisions from proper scrutiny.
   3. Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be "manifest", "obvious" or other than an error discernible by a proper assessment of the evidence and the law.
2. For the sake of convenience if not completeness, I simply note that, notwithstanding his Honour's well-known care and attention to authority, he did not refer to at least one High Court authority, and others relating to "appeals." For example, in Turnbull v New South Wales Medical Board, two members of the Court of Appeal (Moffitt P and Glass JA), separately commented on the different features, and often disparate nature of, appeals. Glass JA in particular noted that there are six different kinds of appeal, whereas Moffitt P outlined what he saw as the primary differences in appeal, namely those that involved a re-hearing or those that focussed upon errors in the judgment below.[7] His Honour said:

Questions as to whether the appeal is in the nature of a re-hearing or whether it is a strict appeal, directed merely to whether there is error in the decision given upon the evidence or material before the body appealed from, are directed to the former, namely the procedural nature of the appeal...

1. According to High Court and other authority, an appeal by way of strict appeal consists only or solely of the scrutiny of the decision below, having regard to the law and facts as they were at the time of the hearing.[8] In a strict appeal, it is not a re-hearing of the issues but rather an examination of the correctness of the initial tribunal's decision, and conversely, an examination for errors or material irregularities. On the other hand, at a re-hearing, among other things, new evidence can be adduced, and the matter is determined on the facts and law as at the time of the re-hearing. These basal principles apply in relation to Courts. As for the situation regarding Tribunals and the legislation that dictates the conduct of appeals, it is pre-eminently dependent upon the terms of the legislation in question, as noted by Refshauge J in Giusida. From what follows, it will be immediately seen that there is some dissonance, or at least a range of possibilities or options, between the authorities.
2. According to the authorities mentioned, I suggest that there are three types of appeals, relevantly described as: (a) strict appeals, which look only at alleged errors of fact and/or law (see the High Court in Dignan, and the NSW Court of Appeal in Turnbull); (b) a hearing de novo, where the hearing, according to name and to practice, requires the hearing to be undertaken anew or afresh (ACT Supreme Court in Giusida and this Tribunal in Pye and Davidson); and (c) a re-hearing, which examines the decision below in relation to errors of fact and/or law, and which also permits, with leave, the use of any additional evidence (Guisida, Pye and Davidson).
3. In addition to what has already been said, for example, in Pye v Registrar, Domestic Animals Act 2000 (Appeal), the Appeal Tribunal stated, at [17] (emphasis added):[9]

[17] The principles to be applied when determining which form of appeal is appropriate were considered by Presidential Member Daniel in Mansour v Dangar as follows:[10]

1. ...In deciding the correct approach to take, the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness.[11] Other than containing these overarching requirements, the legislation does not dictate how the choice between a new hearing or a rehearing is to be made. It is nonetheless an important procedural distinction, which may have substantive consequences.
2. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal's view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
3. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal's findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal's primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
4. For current purposes, I proceed on the basis that the current matter is a re-hearing (as per the comments in Pye and in Giusida), and in conformity with comments by the High Court in Dignan: [12]

...an appeal by way of strict appeal consists of the scrutiny of the decision at first instance, having regard to the law and facts as they were at the time of the hearing. In a strict appeal, it is not a case where there is a re-hearing of the issues but rather an examination of the initial tribunal's decision for errors or irregularities.

1. In my view, the nomenclature and principles in Giusida, the Appeal Tribunal's decision in Pye, and the High Court in Dignan, are congruent (albeit in different ways) with the task of the Tribunal here pursuant to s.82(1)(b) of the ACAT Act to undertake a "review of [either] all or part of the original decision ..." That is the enterprise undertaken in these reasons.

1. Rather than set out the Grounds of Appeal as they are found in the Application for Appeal (filed 23 December 2024), for ease of reference, and in accordance with Directions made by the Tribunal on 29 January 2025, on 12 February 2025, the Appellant filed a more precisely drawn document entitled "Appellant's List of Errors of Facts and Law". That document set out the legal and factual errors asserted by the Appellant. It was as follows:

This list has been compiled in accordance with Order 2(b) of Temporary Presidential Member Orlov made on 29 January 2025, requiring the Appellant to provide a list of errors of fact, errors of law or discretionary errors that were material to the decisions of:

1. Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 17 (liability decision);
2. Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 89 (damages decision).
3. Liability Decision

(1) In relation to errors of law:

1. The Tribunal erred when it found the Appellant bore the onus of establishing that the Respondent's criminal record was not irrelevant within the meaning of subsection 7(1)(k) of the Discrimination Act 1991.1
2. The Tribunal erred when it failed to require the Respondent to establish they had a relevant protected attribute within the meaning of subsection 7(1)(k) of the Discrimination Act 1991.2

1 Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 17 at [42].

1. The Tribunal erred when it found the previous disclosure of a criminal record by the Respondent was a relevant consideration or sufficient to discharge the Respondent's onus that they had an irrelevant criminal record.3

1. The Tribunal misapplied the test for discrimination as set out in section 8 of the Discrimination Act 1991 in the following ways:

(i) By failing to apply or consider any elements of the test for discrimination in section 8 of the Discrimination Act 1991. > > (ii) By failing to consider or make any findings about the "circumstances of the situation in which the discrimination arises", the duties of the position or the information to which the Respondent had access to through the Appellant's systems.

2. erred by failing to apply an objective test when identifying the factors and circumstances to determine if the Respondent had the attribute of an 'irrelevant criminal record' by:

(i) Imposing an obligation on the Appellant to consider all the circumstances surrounding the Respondent's employment, extending to a past life, previous employment, past work performance, personal conduct and personal circumstances.4

(ii) Failing to consider or assess the nature, duties and circumstances of the Respondent's duties and responsibilities in her employment.5

(iii) Importing an obligation to consult with the Respondent.6

1. The Tribunal failed to apply the proper test and assessment of 'detriment' for the purpose of subsection 10(2)(d) of the Discrimination Act 19917.

(2) In relation to errors of fact:

1. The Tribunal erred in finding that Ms Drejer-White, as the decision-maker, "immediately leapt into punitive action against the [Respondent]"8.
2. The Tribunal erred in finding that the reason for the decision not to offer employment was the Appellant's "ill-considered conclusion...based on mere knowledge of the existence of a criminal record itself, with no other information or context"9.

4 Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 17

(3) In relation to errors of law:

1. The Tribunal misconstrued the meaning of 'loss of enjoyment' for the purposes of section 53E(2)(c) and (3) of the Human Rights Commission Act10.

2. The Tribunal denied the Appellant procedural fairness by determining the 'causation argument' without providing the parties the opportunity to make submissions:

   (i) On what the Tribunal considered to be an injury 'compounded or overtaken by subsequent events'11.

   (ii) The finding that 'there has been ample opportunity by the respondent to get it right'12.

   1. The Tribunal misconstrued subsections 53E(2)(c) and (3) of the Human Rights Commission Act by applying 'tort cases', including how compensation is assessed for intentional torts13.

   2. The Tribunal misconstrued subsection 53E(2)(c) and (3) of the Human Rights Commission Act by taking inflation into account for the purpose of considering or using previous 'decided cases' to determine quantum, particularly when there is no evidence or submissions before the Tribunal concerning 'inflation' or its relevance to the assessment required in this matter14.

   3. The tribunal applied an incorrect approach to the concepts of 'causation' and 'chain of causation'.15

   4. The Tribunal misconstrued subsection 53E(2)(c) and (3) of the Human Rights Commission Act by engaging in a comparative approach to assess damages, particularly when the 'comparable tort cases' were not identified16.

   5. The Tribunal incorrectly determined damages for 'loss of employability' as general damages calling it a 'buffer'17 when the relevant head of damages is with respect to a loss of earning capacity and economic loss18.

   6. The Tribunal erred in making an award for damages after finding the "precise loss is imponderable"19, thereby proceeding on a speculative

10 Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 89 at [78] - [81].

13 Complainant DT232023 v The Australian Capital Territory Represented by the Community Services Directorate (Discrimination) [2024] ACAT 89 at [91] - [92].

basis devoid of a proper consideration of the actual loss by reference to the evidence before the Tribunal20.

1. What follows now is the factual background as asserted by the parties to the Appeal and which, by and large, refer to various parts of the liability reasons, as well as some anomalous and irreconcilable parts of the reasons regarding certain facts.
2. There is little or no dispute between the parties regarding the basic facts of the matter. They are helpfully summarised, with reference to paragraphs of the two decisions under appeal, in the Appellant's Outline of Submissions, filed 28 February 2025, at pars.2-18. The Respondent's "factual background", at pars.4-14 of her submissions filed 11 April 2025, supplement the Appellant's factual background. Unsurprisingly, they take a slightly different route and emphasis. I set out the paragraphs mentioned from both sets of submissions. The Appellant's pars.2-18, were as follows:
   1. On 13 February 2024, the Tribunal (Senior Member Drake) published the Liability decision. The Tribunal found the Territory:

... discriminated against the complainant by acting to the detriment of the complainant on the basis of an irrelevant criminal record by determining that she could no longer have access to the respondent's systems, could no longer continue to perform her duties and would not be offered an extension to her fixed term contract in contravention of Part 3 of the Discrimination Act 1991.

1. On 26 November 2024, the Tribunal (Senior Member Meagher SC) published the Damages decision. The Tribunal ordered the Territory to compensate Complainant DT232023 in the sum of $265,372.87. The order for payment was stayed for 28 days. The stay has continued (see order 1, dated 29 January 2025).
2. Section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
3. On 23 December 2024, the Territory lodged an appeal with respect to both the Liability decision and Damages decision. With respect to the Liability decision, there are five questions of law and for the damages decision, there are eight questions of law.

1. On 29 January 2025, the Temporary Presidential Member directed the Territory to file a list of errors of fact and law (Order 2(b)). This document was filed on 12 February 2025.
2. Further, on 29 January 2025, the Temporary Presidential Member directed this appeal hearing will proceed as a review of the original decisions (Order 7). The Territory must show the Tribunal erred in fact or law and the errors materially affected the result.2 These submissions address the Tribunal's errors and why the Liability decision and Damages decisions should be set aside. In summary:
   1. the Appeal Tribunal should set aside the Tribunal's Liability decision and then dismiss the respondent's complaint. It follows if the complaint is dismissed, the Damages decision must also be set aside
   2. if the Appeal Tribunal funds the Tribunal's Liability decision stands, it should set aside the damages decision, and either substitute its own assessment of compensation under s53E(2)(c), or remit the question of compensation to a differently-constituted Tribunal.

Overview of the circumstances giving rise to Complainant DT232023's claim

1. _At the outset, the Appeal Tribunal should be aware that the Liability decision and the Damages decision both make findings with respect to factual background. The Senior Member conducting the damages hearing did not adopt the Liability decision and made additional findings, not confined to matters specific to the assessment of compensation, which he was aware was his only task._3
2. On 4 November 2021, Complainant DT232023 commenced employment with the Community Services Directorate (CSD) as an executive assistant.4 She was employed on a series of temporary contracts. The relevant temporary contract expired on 31 May 2023.5
3. At some time prior to 30 March 2023, Complainant DT232023 applied for a new permanent position with the Canberra Institute of Technology. On 30 March 2023, she found out she was successful.6 Complainant DT232023 wanted to commence employment with a new employer on 26 April 2023. Ms Perkins (CSD) and Complainant DT232023 agreed that her last day of employment would in effect be Friday, 21 April 2023 (after Ms Perkins agreed for the applicant to take a 'flex day' on Monday, 24 April 2023).7
4. On 11 April 2023, CSD received a letter from the ACT Integrity Commission providing information from ACT Policing about Complainant DT232023's criminal convictions for 'violence, dishonesty and drug related offences including a very serious drug offence'.8

4 Liability decision [16]; Damages decision [11]

6 Liability decision [19];Damages decision [13]

1. On 12 April 2023, CSD informed Complainant DT232023 she would be placed on 'other paid leave' until 31 May 2023.9 She was not required to work during that period. Her employment would not be renewed.10
2. On 17 April 2023, Complainant DT232023 made a complaint to the ACT Human Rights Commission (Commission).11
3. On 17 May 2023, the Commission wrote to CSD notifying it of Complainant DT232023's complaint. The Commission asked CSD to respond to the complaint and 12 questions.
4. On 6 June 2023, CSD responded to the Commission. In summary, CSD informed the Commission that Complainant DT232023 had not been terminated and it denied the allegations of discrimination.
5. On 30 June 2023, the Commission informed CSD that it was closing Complainant DT232023's complaint. Complainant DT232023 requested the Commission refer the complaint to the Tribunal.
6. On 13 July 2023, the Tribunal advised the parties that the Commission had referred Complainant DT232023's complaint to the Tribunal for hearing and determination, pursuant to s 53A of the Human Rights Commission Act 2005 (HRC Act).
7. On 27 November 2023, Complainant DT232023's complaint was listed for hearing. Complainant DT232023 appeared for herself. She provided documents to the Tribunal.12 She did not cross-examine any witnesses. CSD also provided documents. It did not cross-examine Complainant DT232023.13
8. The Respondent's submissions regarding the relevant factual background were as follows[13]:

1. In the Liability decision, Senior Member Drake summarised the factual background commencing at [12]. Senior Member Meagher SC also set out a number of background facts, commencing at Damages decision [9]. Relevantly, those facts include:

(a) The respondent's parents suffered from drug addiction. She was neglected and abused throughout her childhood.

9 Liability decision [23]; Damages decision [18],[22]

10 Liability decision [23]; Damages decision [18],[22]

(b) The respondent spent a significant portion of her youth in an abusive romantic relationship, causing her to develop post-traumatic stress disorder with anxiety and depression.

(c) The respondent is a single mother with two young daughters.

(d) The respondent sought employment from the appellant's temporary employment register on 22 February 2021.

(e) The respondent notified the appellant of her criminal record in her application and there was no suggestion that her disclosure was anything but frank.

(f) On 4 March 2021 the respondent's temporary employment was brought to an end by the appellant because of her criminal record.

(g) The respondent made a complaint to the Human Rights Commission and subsequently resolved that complaint at a conciliation conference by agreement with the appellant's head of human resources, Craig Rose.

(h) That agreement was recorded in writing. The respondent's evidence before the Tribunal was that prior to that agreement being entered, she explained her criminal record to Mr Rose, and that the effect of the agreement was when she completed the new starter pack she disclosed her criminal record by writing that Mr Rose was aware of the criminal history and if there were any concerns then he should be called.

(i) The respondent was ultimately employed by the appellant on 4 November 2021.

(j) In her subsequent employment with the appellant, the respondent had access to the appellant's systems as required, performed satisfactorily and had not been subject to any allegations of misconduct.

(k) The respondent's employment was conducted on rolling contracts.

1. It is submitted here that although the respondent's employment was governed by a number of short term contracts, the work that she performed was in just two positions - the first being position number P53733 for the period from 4 November 2021 until 21 August 2022 and secondly position number P36580 from 22 August 2022 with a formal expiration date of 31 May 2023.2 Thus, notwithstanding the work was performed on consecutive rolling contracts, each was renewed and there was no break in employment in the period of 17 months from November 2021 until April 2023.
2. In March 2023, the respondent sought a permanent position at the Canberra Institute of Technology ("CIT'). She was offered employment in that position on 30 March 2023, with a start date of 26 April 2023.
3. On or about 7 April 2023, ACT Police executed a search warrant at the respondent's home. The warrant had been issued as part of investigations being carried out by the ACT Integrity Commission. The searches conducted during the execution of the warrant were not in respect of the respondent, but someone she had been seeing.
4. Later on 7 April 2023, a police officer wrote to the ACT Integrity Commission and informed them that during the search of the respondent's home, an ACT Government computer had been identified. The police officer expressed to the Integrity Commission concerns that the respondent may be in government employment, being a concern "as to any (trusted) employment she may hold". The police officer goes on to request that the Integrity Commission advise who at the ACT government "considers employment suitability and the truthfulness in job applications". It is not clear why the police officer made the request for that information, and there is no evidence if it was provided. The evidence is that the respondent had at all times made truthful disclosures and, as has been set out above, the nature of her record had been considered by Mr Rose on behalf of the appellant during the HRC Conciliation in 2021. Nevertheless, neither the police nor the Integrity Commission knew that, so the Integrity Commission took up the issue directly with the appellant.
5. On 11 April 2023, the Chief Executive of the Integrity Commission wrote to Catherine Rule, the appellant's Director-General. The Integrity Commission's letter described the concerns set out in the letter from the police to the Integrity Commission, including the concern about the truthfulness of pre-employment documents.
6. The same day, the Integrity Commission's letter made its way to Magdalena Dreyer­White. Mr Rose was on leave. The following day, without notice or consultation with the respondent, Ms Dreyer-White removed the respondent's access to the appellant's systems, removed her from active work, placed her on paid leave until the end of her contract and advised her that her temporary contract would not be renewed. Each of those actions was taken as a direct result of the information received from the Integrity Commission.
7. The respondent had, by 12 April 2023, advised the appellant that she intended to leave her position to take up the position with CIT.
8. On 19 April 20235, the respondent wrote to Graeme Henderson on behalf of the appellant and described that she had not been the subject of any concern as to criminal or unlawful conduct leading to the execution of the warrant, that she had been truthful in disclosing her criminal record prior to her employment. The respondent also described her discussions with Craig Rose during the HRC conciliation and the agreement she had reached with the appellant in 2021 as to the procedure to be adopted by her for ongoing disclosure of her record. The respondent went on in that email to describe to the appellant a number of aspects of her life. The respondent concluded the email by referring to the episode she was enduring as a "negative experience".
9. Immediately following the events described above, the respondent's PTSD was triggered, causing her to cry uncontrollably, ruminate on the past, suffer panic attacks
10. On 23 May 2023 the CIT offer of employment was withdrawn, also because of the respondent's criminal record.

1. What follows is the consideration of some parts of the evidence that were formally before the Tribunal below but which, without explanation, were not otherwise referred to or considered in the reasons (other than in a list at [9]). In my view, this unconsidered evidence of the Respondent is critical. It was a serious procedural and evidentiary omission not to have considered it. Further, had there been consideration of it, a significant number of statements if not findings of the Tribunal below would not, and certainly could not, have been made.
2. The following factual matters are taken from various witness statements on behalf of the Respondent, notably by Ms Drejer-White and Ms Perkins, which are pointedly at odds with various findings and comments by the Tribunal at first instance. This is also in circumstances where no witness for either party, including the Applicant herself, was cross examined.[14] It is one thing for witnesses not to be cross examined. In many respects, this was understandable here. It is quite another for evidence on behalf of one party not to have been, on the face of the reasons, considered at all. In this regard, I recall principles of long-standing regarding the importance in decision-making to ensure that the reasons disclose a considered weighing of the evidence of both parties, which leads to findings regarding why one set of evidence is preferred and accepted over contrary or conflicting evidence, and the "findings" that flow from such reasons, in the light of the relevant principles of law.[15]
3. First, at [13] and [28] of the liability judgment, and in turn at [7] of the damages reasons, there are conflicting contentions regarding the ending of the Applicant's employment with the Appellant. The two conflicting and irreconcilable contentions in the liability judgment are as follows (emphasis added):

[13] ...the Applicant's temporary contract was brought to an end by the Respondent after its consideration of her criminal record.

[28] ...The Applicant had resigned her role [with the Appellant] to take up her position offered by the CIT.

1. At [7] of the damages decision, it was recorded that "the Applicant ended the job [with the Appellant] by her resignation." This statement rather begs the question (which was never addressed in either decision below) how one could or should be awarded any compensation simply for resigning their temporary employment that was, in any event, to come to an end in the very near future.
2. Depending on which account is correct regarding the ending of the Applicant's employment with the Appellant, potentially if not plainly different consequences necessarily follow.
3. Secondly, at [43] - [51], the reasons discuss what Ms Drejer-White did or did not do regarding the information she received from the ACT Integrity Commission in relation to the Applicant.[16] I need not set out those paragraphs from the primary decision in full. It is sufficient to note the following points from them (emphasis added):

(a) At [43], the reasons record the Integrity Commission providing information of the Applicant's criminal record to the Appellant. The Tribunal stated: "The concerns of the police regarding non-disclosure, conveyed by the Integrity Commission, were not warranted." The precise concerns of the Commission were not set out in the reasons. There was no examination and weighing of the Commission's concerns as spelt out in the two letters of 7 and 11 April 2023 from the Commission but instead a simple and blunt rejection of them. Indeed, the concerns of the Commission set out in the letter were not set out in the reasons.[17]

(b) At [44], the Tribunal rejected the submission by the Appellant regarding the "weight" to be given to the information provided by the Commission. There was no reason given for the "rejection" of the submission.

(c) At [45] - [51], the Tribunal outlined the response of Ms Drejer-White to the Applicant in the light of the information she received from the Commission, and contrasted it unfavourably with the interaction of Mr Rose (from HR at CSD) with the Applicant in the context of a conciliation process he was engaged in. Whereas the Tribunal referred to Mr Rose behaving "in a proper manner [sic] when reaching his conclusion as to the relevance of the complainant's criminal record" (what constituted a "proper manner" and how it related to any decision-making, were not explained), the Tribunal said (at [47]) that upon receiving the information from the Integrity Commission Ms Drejer-White (emphasis added) "immediately leapt into punitive action against the complainant."[18] The Tribunal said further that upon receiving the letter she "immediately suspended the complainant from all active employment, and determined that she would not be employed on an extension of her temporary contract." The Tribunal recorded that the Appellant did not speak with the Applicant or to Mr Rose; it concluded that Ms Drejer-White's action (emphasis added) "was a quintessential knee-jerk reaction." This is briefly expanded upon in [48], where the Tribunal stated that "Ms Drejer-White made this decision with no background information whatsoever..."[19] Respectfully, the evidence provided by Ms Drejer-White and Ms Perkins (discussed below), which was not canvassed in the reasons, does not support these conclusions, or the pejorative assertions highlighted.

(d) At [50] - [51], the Tribunal commented on the purported duty or onus on the Appellant employer properly to consider the Applicant's criminal record. The issue of "onus" is discussed separately below. The authorities canvassed in these reasons confirm that the relevant onus is firstly upon the Applicant, and only after certain matters are established does any onus shift to the Respondent.[20] In not referring to, or considering any relevant authorities and statutory provisions on this and related matters, the Tribunal deprived itself of proper reference to guiding principle.

1. I note the following in relation to the evidence that was before the Tribunal but not, on the face of the reasons, referred to or otherwise considered by it.
2. Ms Drejer-White provided two statements: (a) a witness statement to the Tribunal for the hearing, dated 23 November 2023; and (b) an earlier letter to respond to specific questions from the Discrimination Commissioner, dated 6 June 2023.[21] The statement and the letter of Ms Drejer-White are basically consistent. Summarised, the detailed witness statement provided the following information and comment from Ms Drejer-White, who at the relevant time was the Executive Branch Manager, People Capability & Culture Branch, Community Services Directorate (CSD):

(a) The Integrity Commission's letters were received on or about 11 April 2023 first by Ms Borwick (Ms Drejer-White's supervisor), who was the Executive Group Manager - Corporate Services. Ms Borwick provided it to Ms Drejer-White. Following brief discussion, she advised Ms Borwick that nothing should be done regarding the letter and its contents until more information was obtained. Par.7 of the witness statement confirmed that (i) the letter conveyed to her that the matter was "very serious"; (ii) the letter conveyed the Commission's concern that it did not think that a person with the Applicant's history "should have access to the Directorate's systems...". This letter led Ms Drejer-White to consider the Applicant's criminal history of which she was, at that time, unaware. She said that she was struck by how many convictions there were and the "extensive period of time they covered."

(b) In contrast to the Tribunal's comment, if not finding (at [48]) that Ms Drejer-White's decision regarding the Applicant was "with no background information whatsoever", pars.8-14 detail the inquiries Ms Drejer-White made in the light of the Commission's letter regarding the Applicant. These included asking the Employee Relations Team to check information regarding the Applicant. Her point of contact here was Mr Henderson. On or around this time, Ms Drejer-White learnt that the Applicant had given "notice of her resignation to take up a permanent role elsewhere." Ms Drejer-White confirmed that she was advised by Ms Perkins (whose evidence is discussed shortly) that the Applicant had "already negotiated an earlier end date, being 25 April 2024."

(c) Pars.15-25 outline Ms Drejer-White's assessment of the Applicant's situation. At the outset, she noted that her "particular concern" was the level of access to "confidential and sensitive information that she had." She outlined at a little length (pars.16-19) the general duties of an executive assistant. Ms Drejer-White said that she was concerned about the access to information regarding vulnerable individuals and communities to which the Applicant had access. She was also concerned about the risk the Applicant posed, in the light of the access to the information identified, whereby someone could exploit the Applicant's access to such information. This was in the context where one of the Applicant's convictions was for drug-related offences, which "showed involvement and co-operation with others."

(d) I need not canvass other matters set out in these paragraphs because they repeat, to some degree, what had been said earlier, save that (it seemed) that attempts to contact Mr Rose (who conciliated earlier matters) were unsuccessful because he was initially on leave around this time and later, had left the Directorate.

(e) Ms Drejer-White said that, had she been aware of the Applicant's criminal history, she would have made inquiries with her and made a risk assessment regarding the inherent requirements of the job as an Executive Assistant. Clearly, the Applicant's significant criminal record was a relevant factor and consideration for her now that she was aware of it.

(f) Next followed Ms Drejer-White's evidence (pars.26-31) regarding her decision to suspend the Applicant's ICT access and to place her on leave. She firstly said that the fact that the information regarding the Applicant's criminal history, and the expression of the Integrity Commission's concern about her employment and having access to the Directorate's systems, indicated to Ms Drejer-White the seriousness of the situation and the possible risks involved. She said that, in her view, she had a duty to protect or to safeguard sensitive information held by the Directorate. As a result of forming this view, she suspended the Applicant from access to the ICT systems. In turn, this meant that the Applicant could not perform her duties. She was then placed on "miscellaneous paid leave." Ms Drejer-White said that because the Applicant was finishing up with the Directorate in a relatively short time, she did not want the Applicant to be financially disadvantaged and therefore she was content for her to be on paid leave for the remainder of her time.

(g) Importantly, Ms Drejer-White confirmed that she discussed her "decision" regarding the Applicant with her supervisor, Ms Borwick, who agreed with the course that was undertaken. She said that her recollection was that she did not discuss the matter with anyone else because she did not know how widely she could canvass the information provided by the Integrity Commission.

(h) It will be recalled that, at [47] of the Tribunal's reasons, among other things it was stated that the decisions of Ms Drejer-White regarding the Applicant were taken "all without speaking to the Complainant." Further, at [23] of the reasons, the Tribunal stated: "she [the Applicant] was not provided with the information provided by the Integrity Commission." Contrary to these declamations, each of these assertions by the Tribunal are incorrect on the bases that, at pars.32-39 in her unconsidered witness statement, Ms Drejer-White confirmed that she had a discussion with the Applicant on 12 April 2023. She discussed with the Applicant the letter from the Integrity Commission, and that in consequence of its contents and the concerns expressed in it, she would be placed on "other paid leave" until the expiration of her employment. She said that during this phone call she did not discuss the detail of the Commission's letter because she was not sure if she could do so. Further, again contrary to the assertions in the Tribunal's reasons, some little time after the discussion between the Applicant and Ms Drejer-White, and after checking with the Commission, she provided the Applicant with a redacted copy of the letter.[22] She said that the discussion with the Applicant focussed mainly on the latter's inquiries about her entitlements. Ms Drejer-White confirmed that at the end of her employment, she would be paid out all of her wages and entitlements.

(i) Finally, at pars.40-45, Ms Drejer-White outlined her consideration of the Applicant's circumstances (cf the Tribunal's comments that nothing along these lines ever took place - see the liability reasons at [50] and [56]).

1. In short, there was no weighing of the Applicant's evidence against that from Ms Drejer-White (or, as seen below, from Ms Perkins), or in the light of the documentation provided by the Appellant. Therefore, in relation to a number of evidentiary matters, the factual foundation for the Tribunal's decision was necessarily, and fundamentally, flawed.
2. Ms Anita Perkins, the Executive Group Manager for the Communities Division of the Directorate provided a short [witness] statement, dated 30 October 2023. In the course of her statement, Ms Perkins said:[23]

(a) Through a number of conversations with the Applicant between 30 and 31 March 2023, she was aware that the latter was looking for work outside the Directorate. Ms Perkins provided a referee Report for her (in writing and orally) for the position with CIT.

(b) By a message on MS Teams on 30 March 2023, the Applicant confirmed to Ms Perkins that she was successful in her Application for the CIT job and had a start date of 26 April 2023. In consequence of this success, the Applicant asked Ms Perkins if she could take a "flex day" on 24 April 2023. This was agreed via messages over MS Teams on 31 March 2023.

(c) Ms Perkins noted further that she never indicated to the Applicant that she would be provided with a further temporary contract of employment. She also confirmed that the position the Applicant held was intended to be made permanent once there had been a merit-based recruitment process. To this end, the advertisement for that selection process for that position appeared on 24 April 2024, which was obviously before the expiration of the Applicant's temporary position on 31 May 2023.

1. For completeness, I also note the following additional material that was before the Tribunal at the hearing, but otherwise not referenced or considered in the reasons:

(a) At T 275-276, there is correspondence between the Applicant and Mr Henderson (Assistant Director Employee Relations) between 13 and 19 April 2023. For example, in Mr Henderson's email to the Applicant of 17 April he confirmed to her that (i) her "temporary employment with the Directorate has not been terminated and your existing contract will be honoured and allowed to continue until the nominal expiry date of 31 May 2023. ...You will continue to receive full pay and all other entitlements until 31 May 2023 but will not be required to work."

(b) At T 277, there is a copy of a further letter from the Integrity Commission (dated 11 April 2023; the original letter from the Commission, dated 7 April 2023, is at T 278-279), which confirmed that the information contained in it regarding the Applicant was of such importance that, in addition to it being considered relevant to the functions of CSD, it was also considered to be relevant to the functions of the ACT Public Sector Standards Commissioner (PSSC) and that the Commission intended to disclose it to the PSSC.

(c) At T 289-291, is a copy of Ms Drejer-White's letter to the Discrimination Commissioner (Ms Toohey) dated 6 June 2023. Without outlining its contents in detail, I need only note that it confirmed that (i) the Applicant was employed only on short-term, temporary contracts; (ii) the Applicant had arranged an earlier "release date" from her employment because she intended to take up a full-time position elsewhere. This meant that there was no consideration of her possibly taking up a renewal of her current temporary, short-term contract because she would not be available; and (iii) the Applicant "was not afforded a show cause process as her contract of employment was not being terminated and was allowed to continue until the nominal end date." And the early release date regarding the Applicant's employment "was agreed to by the Applicant's manager on 30 March 2023 prior to the advice being received from the ACT Integrity Commission."[24]

1. There was no consideration of the Complainant's evidence (i.e. her witness statements) that was before the Tribunal, which also goes to the requirement to weigh and evaluate the competing evidence of the parties.[25]
2. From this review of the evidence on behalf of the Appellant that was before the Tribunal below, subject to the consideration of other matters such as "onus" discussed later, the following conclusions are inevitable in relation to the factual matrix as found by the Tribunal at first instance:

(a) Given that the Integrity Commission itself expressed significant concerns about the past criminal activity of the Applicant, and that the material in its letter to CSD was being forwarded to the ACT Public Sector Standards Commissioner, it was proper for Ms Drejer-White to consider it and to give it proper weight. It was not appropriate, therefore, without indicating why and how (and what evidence was relied upon) the Tribunal came to the view it did (at [43] and [44]), to conclude that "the concerns of the police regarding non-disclosure, conveyed by the Integrity Commission, were not warranted" and further that the Tribunal was not persuaded "that the input of the Integrity Commission adds anything to the consideration of this issue required of the respondent."

(b) Given the detailed account in her witness statement regarding (i) her communication with the Applicant, (ii) her communication with Ms Borwick and Mr Henderson, and (iii) express statements regarding her consideration of the Applicant's circumstances, it was not open to the Tribunal to make findings (at [47] and [48]) that there had been no discussion with the Applicant, or any consideration of the Applicant's personal circumstances. The findings of the Tribunal regarding these matters were not open to it in the light of the detailed evidence of Ms Drejer-White and the supporting documents referred to. Why there was no reference to her evidence in the reasons was not explained.

(c) Given the detailed account by Ms Drejer-White regarding her understanding of the import and importance of the correspondence from the Integrity Commission, it was understandable that she proceeded cautiously. To proceed in this way, in my view, was perfectly understandable and proper in all of the circumstances. She did not proceed, as the Tribunal below found, in either a "knee jerk reaction" or that she "leapt into a punitive action" against the Applicant. Ms Drejer-White had formal responsibilities, as she stated, to protect the CSD. To so act was not punitive to the Applicant, particularly in circumstances where the latter had already given notice of her departure to other employment and had negotiated an earlier departure date, all before the information from the Commission came to light. And the Applicant was nonetheless paid out her full entitlements beyond the negotiated departure date.

(d) A final matter to note relates to the Tribunal's conclusion at [55] regarding, among other things, its view regarding not offering the Applicant an extension of the Applicant's employment. This paragraph is examined further below. However, for current purposes, the last sentence of this paragraph refers to the importance and significance of the need to consider "other information and context." There was, in fact, "other information and context" provided by the witness statement of Ms Perkins, which unfortunately was not considered and certainly not referred to by the Tribunal, other than as part of the list of materials relied upon by the Respondent. It will be recalled that her evidence was that the position the Applicant held on a temporary, short-term basis had been advertised on 24 April 2023 for a merit-based, full-time position, which necessarily meant that the short-term position held by the Applicant was not, in any event, available for renewal or otherwise, except pursuant to the merit-based process referred to by Ms Perkins. It is not clear, nor is it explained, why this and other information was not referred to in the reasons below. Plus, by this stage, the Complainant had resigned, as agreed, on 21st April 2023.[26] Again, unfortunately, there was no relevant weighing of competing evidence.

1. In my view, in the light of the examination just conducted of the detailed evidence provided to, but not discussed by, the Tribunal below, the factual foundations for the Tribunal's decision in relation to those matters cannot stand. These evidentiary and procedural flaws are sufficient in themselves to set aside the Tribunal's decision below. Other matters discussed below lead to the same conclusion.

1. The Appellant's submissions on liability[27], were as follows:

Liability decision [2024] ACAT 17

1. At its heart, the Liability decision is fundamentally flawed because the Tribunal approached the determination of the claim as if it was an unfair dismissal under Part 3- 2 of the Fair Work Act 2009 (Cth) and failed to give proper consideration to the relevant provisions, tests and the application of the Discrimination Act. This approach also resulted in erroneously imposing the 'onus' on the Territory (see Liability decision [42]).
2. It is convenient to start with the relevant provisions and operation of the Discrimination Act and the HRC Act. We address the particular errors in the context and application of these enactments.

[Reasons for Appeal: substantive decision, para 6; List of Errors, para 1(1)(f)]

1. Subsections 10(1) and 10(2) of the Discrimination Act make it unlawful for an employer to discriminate against a 'person' or 'employee' respectively:
2. Applicants and employees

_(1) It is unlawful for an employer to discriminate against a person - _

(a) in the arrangements made for the purpose of deciding who should be offered employment; or

(b) in deciding who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

_(2) It is unlawful for an employer to discriminate against an employee - _

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

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or

(c) by dismissing the employee; or

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

1. work under a contract for services; and
2. work as a Territory employee; and
3. work as an unpaid worker.

1. Section 121A of the Discrimination Act applies to acts and omissions of 'representatives' and provides:

(1) This section applies to the doing of an unlawful act (conduct).

Note 1 A complaint may be made about an unlawful act (see Human Rights Commission Act 2005, s 42 (1) (c)).

(2) Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative's actual or apparent authority.

(3) However, subsection (2) does not apply if the person establishes that the person took all reasonable steps to prevent the representative from engaging in the conduct.

representative, of a person, means an employee or agent of the person.

1. Complainant DT232023's complaint engaged s 10. There was and is no dispute that:
   1. the Territory was an 'employer' for the purpose of s 10(1) and 10(2);
   2. Complainant DT232023 was a 'person' for the purpose of s 10(1);
   3. Complainant DT232023 was an 'employee' for the purpose of s 10(2) as at the date of the alleged discrimination being 12 April 2023. As the Tribunal found, she was a 'temporary employee' (Liability Decision [18]).
2. The Tribunal failed to give any consideration of s 10(1) with respect to the allegations that CSD refused to offer a new temporary contract. Rather it appeared to treat a decision about whether the complainant should be employed as a 'detriment' in employment. Likewise, the Tribunal did not consider or make any findings with respect to dismissing the complainant, by reference to s10(2)(c).
3. In the Liability decision at [30], the Tribunal referred to both ss 10(2)(a) and (d) of the Discrimination Act. However, as the Order makes plain, the only finding was with respect to s 10(2)(d) of the Discrimination Act: see paragraph 2 above. The Tribunal's reliance only on s 10(2)(d) has resulted in confusing and erroneous findings.
4. Complainant DT 232023 had the onus of proving s 10(2)(d) or any other subsection was relevantly engaged and how. For the following reasons, the Tribunal should have found Complainant DT 232023 failed to prove s 10 was properly engaged and on that basis should have dismissed the complaint.

Failure to apply the proper test with respect to being 'subjected to a detriment'

1. First, the Tribunal failed to consider the meaning of 'any other detriment' in s 10(2)(d). The Tribunal did not consider or address the meaning of 'detriment' for the purpose of s 10(2)(d) of the Discrimination Act. This resulted in a failure to properly identify what 'detriment' means for the purpose of s 10(2)(d) and then consider the evidence as to whether the acts of the Territory 'subjected' Complainant DT232023 to a 'detriment'. As a result, the Tribunal fell into error because it:
   1. confused and conflated the concept of 'detriment' in s 10(2)(d) with the definition of 'direct discrimination' of 'unfavourable treatment' (see Liability Decision at [38] (with respect to the Territory's submission and [53]);
   2. further confused and conflated the concept of 'detriment' in s 10(2)(d) with the consequences of an act of discrimination that causes 'loss and damage'. The latter being relevant to the determination of a remedy but only if there has been a breach of s 10(2)(d) (see s 53E(2)(b) of the HR Act) at [38] (with respect to the Territory's submission);
   3. failed to apply an objective test with respect to determining if there was a detriment.
2. If the Tribunal has applied the correct approach, it should have started with considering the meaning of 'detriment'. The term is not defined in the Discrimination Act but the expression has its ordinary meaning. In Applicant DT62023 v Canberra Institute of Technology [2024] ACAT 30 at [18], the Tribunal said:

'Detriment' is not defined in the Act. The Macquarie Dictionary defines 'detriment' as "loss, damage, or injury."14The Encyclopaedic Australian Legal Dictionary provides a general definition of 'detriment' as "prejudice, loss, or material disadvantage."15Additionally, the Encyclopaedic Australian Legal Dictionary provides a specific definition where the term relates to civil and political rights as "prejudice or loss, including humiliation or denigration..."16

1. In applying the ordinary meaning, s 4AA of the Discrimination Act provides that the Act must be interpreted in a way that is beneficial to a person with a protected attribute to the extent that it is possible to do so consistently with the objects of the Act and the Human Rights Act 2004. The Tribunal gave no consideration to such matters.
2. Then the Tribunal should have identified the relevant evidence to make an objective assessment of whether Complainant DT232023 had been subjected to a detriment. The Tribunal did not apply an objective test. Rather it relied on Complainant DT232023's subjective experience or reaction to being directed to take paid leave until her temporary contract expired. The Tribunal just accepted Complainant DT232023's submission which was confined to the subjective effect or consequences (see Liability Decision [34] [35]).
3. The Tribunal's reasons failed to address and consider the requirements of s 10(2)(d), specifically that the sub-section cannot be satisfied if an employee alleges no more than they have suffered a consequence.17 In this sense, s 10(2)(d) is intended to draw a clear distinction between an employee being subjected to a detriment (being the act done by the respondent/employer) and consequences of such an act, being the consequential loss or damage.
4. The error is plain in the Tribunal's Order. There the Tribunal describes the breach as 'by acting to the detriment of the complainant'.
5. Further, the error is also clear from the reasons at Liability decision [52]-[54] which make findings to the effect of a detriment 'arising from', meaning being the consequence of actions:

14 Macquarie Dictionary (online) 'detriment' (def 1)

15 Encyclopaedic Australian Legal Dictionary (online) 'detriment' (def 1)

16 Encyclopaedic Australian Legal Dictionary (online) 'detriment' (def 2)

17 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]; Burns v Sunol [2014] NSWCATAD 62 at [85]; Bashour v Australia & New Zealand Banking Group Ltd (Human Rights) [2024] VCAT 1197 at [995]. See also Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 [67] and [68].

• [52] The fact that the complainant applied for full-time employment elsewhere does not prevent a finding being made of a detriment to the complainant arising from the respondent's conduct in removing her access to its systems, placing her on paid leave, and its immediate pre-emptive decision not to extend her contract.
• [53] The respondent ceased to provide the complainant with work. The respondent submits that this is not a detriment. It submits it did not treat her unfavourably because it paid her. This is too narrow a definition of detriment.
• [54] I am not persuaded that the payment of money negates the detriment that arises from removal from access to the respondent systems, the absence of real work, and the decision not to offer her any work in the future. Placing the applicant on paid or gardening leave and not allowing her to continue in active employment is a detriment**. A decision made, without consultation, to refuse to extend the complainant's contract, whether or not she intended to avail herself of that opportunity, is a detriment.**
• [55] The respondent was never bound to offer an extension of the applicant's employment at the conclusion of her fixed term contract. That is clear from the Commencement of Employment documents executed and accepted by the complainant. However, I am satisfied that it is direct discrimination to determine that no such employment will be offered on the basis of an ill-considered conclusion by the respondent based on mere knowledge of the existence of the criminal record itself, with no other information or context

1. Third, the Tribunal mischaracterised the alleged unlawful conduct for the purpose of s 10(2)(d). One of the issues raised in Complainant DT232023's submission was she wanted to 'gain permanent employment' (see [36]). Further, Complainant DT232023's 'Particulars of Discrimination' (Exhibit A2) made it plain that her complaint was concerned about a future offer of permanent employment. If this is the case, then the claim was more properly directed to s 10(1)(b). As a result the Tribunal's reasons are confusing and inconsistent. At points, the Tribunal refers to 'extension' (see [1]) or a 'renewal' (see [23]) and the specific findings at [54] and [55] (reproduced above).

Section 10(2)(d) and proper approach to 'detriment'

1. If the proper test has been applied, the Tribunal should have found that:
   1. Complainant DT232023 was not subjected to a detriment for the purpose of s 10(2)(d) by removing her access to the systems. There was no evidence about the need for the complainant to access systems. There was no evidence as to how or why not having access to the employer's systems subjected Complainant DT232023 to a detriment, particularly in circumstances where she was not required to perform work or needed to use the 'systems';
   2. Complainant DT232023 was not subjected to a detriment for the purpose of s10(2)(d) by an alleged failure of Ms Dreyer-White failing to consult with her. There was no evidence that Ms Dreyer-White had an obligation to do so. This finding is not supported by reference to the employment contract or to the source of another obligation. There was no evidence with respect to how or why consultation was appropriate. If there was no right to be consulted, then it was not open to the Tribunal to find that the failure to consult resulted in subjecting the complainant to a detriment in employment;
   3. Complainant DT232023 was not subjected to a detriment for the purpose of s10(2)(d) by being directed to take 'gardening leave' being on paid leave. There was no evidence as to how such a direction subjected Complainant DT232023 to a detriment. The Tribunal's findings at [54] are not based on any evidence presented to the Tribunal with respect to the nature, scope and terms of Complainant DT232023's employment. For example, there was evidence of the Temporary Employment Contract (Exhibit R8) which referred to s 110 of the Public Sector Management Act 1994 (ACT) (PSM Act). The Tribunal made no reference to the PSM Act and did not take into account the requirements of the PSM Act.
   4. Complainant DT232023 was not subjected to a detriment for the purpose of s10(2)(d) by an alleged failure of Ms Dreyer-White to consider Complainant DT232023's family and domestic background, her current circumstances and material outlined by Complainant DT232023's psychiatrist (Liability decision [56]). Contrary to the Tribunal's findings, there was no evidence that established:
      1. Ms Dreyer-White knew about Complainant DT232023's family and domestic background or her current circumstances and/or material outlined by Complainant DT232023's psychiatrist as at 13 April 2023;
      2. Ms Dreyer-White was required to make inquiries about Complainant DT232023's family and domestic background or her current circumstances and/or material outlined by Complainant DT232023's psychiatrist;
      3. Any of those matters were relevant to Ms Dreyer-White's considerations;
      4. any of those matters were relevant to determining if Complainant DT232023 should be directed to take paid leave; and
      5. even if Ms Dreyer-White knew about these matters or took them into account, the result would not be any different.
2. The Tribunal made findings without any reference to relevant evidence or the proper context in which an employment relationship operates. The Tribunal failed to consider well- established principles in relation to the relationship between an employer and employee.
3. The Tribunal's finding at [54] that 'Employment requires the performance of work' is, with respect, not correct. The employment relationship depends on an employment contract that operates with relevant modern awards, enterprise agreements, relevant statutory and common law obligations.18
4. The Tribunal's finding at [54] '[t]he provision of gardening leave is not the performance of an employer's obligations to provide employment' is also wrong. As the Victorian Supreme Court said in BearingPoint Australia Pty Ltd v Hillard [2008] VSC 115 at [84]:

"Garden leave" is a colloquial or euphemistic term for an employer insisting that an employee, who has given notice, stay away from work for the duration of the notice period, whilst continuing to pay the employee's remuneration. There is no obligation requiring an employer to 'continue' an employee in 'active employment'. Further, contrary to the Tribunal's finding there is no obligation to provide 'employment' or 'work'.

1. Further, as the High Court said in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at [80] an employer has no general obligation to provide work to an employee, at common law.19 20

1. The Tribunal's finding at [54] with respect to not to 'offer ... any work in the future' is not supported by any evidence or a proper understanding of s 10. Section 10 of the Discrimination Act does not extend to future offers of work at unknown times. Section 10(1) expressly addresses when and how discrimination may arise in determining who should be employed. There was no consideration of s 10(1). When s 10 is considered in it full and proper context, s 10(2)(d) is directed to when an employee is subjected to a detriment in the employment that exists at the time, not some future form of employment.

1. The Tribunal's finding at [55] that Complainant DT232023 was subjected to a detriment for the purpose of s 10(2)(d) because the Territory made a decision not to extend her contract is wrong. As the Tribunal found at ]55]. The Territory was 'never bound to offer an extension of the applicant's employment at the conclusion of her fixed term contract.' The finding at [55] that the Territory should have made a determine to offer further employment, in circumstances where it had no obligation to do so, does not engage s 10(2)(d) or s10(1) of the Discrimination Act.

18 Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at 178 and recently in Bird v DP (a pseudonym) [2024] HCA 41. See also WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 at 477 [56]-[58], 478-479 [62]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 at 226 [162], 228 [172].

19 See Neil I and Chin D, The Modern Contract of Employment, 2nd edition [6.100] - [6.122]

20 Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988 per Tracey J at [27], Quinn v Overland [2010] FCA 799 ; 199 IR 40 at 59-61 per Bromberg J at [95]-[104], Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission [2023] FCA 1458 at [101] per Shariff J, Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179 per Mortimer CJ.

1. For these reasons, the Tribunal has erred in identifying a proper basis for s 10(2)(d) to be engaged. If the Appeal Panel accepts that there was no 'detriment', then s 10(2)(d) was not engaged and the complaint should have been dismissed.

1. Further, the erroneous approach with respect to the Territory's obligation on the employer under s10(2)(d) has also had significant and material consequences for the Tribunal's Damages decision, particularly to the basis on which damages were assessed.

Section 8(1) and 8(2) and errors in failing to apply the test of discrimination [Reasons for Appeal: substantive decision, para 4(a) and(b); List of Errors, para 1(1)(d)(i) d (ii)]

1. If contrary to our submission, the Appeal Tribunal considers the Tribunal correctly found s 10(2)(d) was engaged, then further errors arise in the application of the definition of 'direct discrimination' in s 8(2) of the Discrimination Act.
2. Section 8 sets out the meaning of discrimination for the purpose of s10(2) as follows:

(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.

(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.

_(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include - _

(a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.

1. At Liability decision [31], the Tribunal said it understood that Complainant DT232023 'alleges that she was directly discriminated against, as per section 8(2) of the Discrimination Act.' Other than reciting s 8(2) at [30], the Tribunal did not address any of the elements the Complainant DT232023 was required to prove. The Tribunal did not refer to or consider any relevant authorities addressing how s 8(2) should be applied.
2. The Appeal Tribunal will be aware that the Tribunal has considered the proper approach to s 8(2) on a number of occasions. In Applicant DT62023, the Tribunal said:
   • [22] The tribunal has previously observed that, whether a person is treated unfavourably or disadvantaged for the purposes of the Act, is a question of fact and the test is objective. In, the tribunal described the test as follows:
     • [20] In Kidman v Casino Canberra Pty Ltd, the tribunal considered the issue of unfavourable treatment to be a question of fact. The test is objective rather than comparative. The Tribunal noted that:

The Discrimination Act does not define 'unfavourable treatment' or what is meant by 'treats or proposes to treat another person unfavourably'. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: "were you treated less favourably than others?" It asks, "were you treated unfavourably?" This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is 'unfavourable treatment' and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.21

• [21] 'Unfavourable treatment' has been said to encompass acts or omissions which result in some detriment, being loss, damage or injury.
• [22] In Australian Capital Territory v Wang, the tribunal noted that the words 'effect' and 'disadvantaging' are not defined in the Discrimination Act. The tribunal adopted the following meaning of 'disadvantage' discussed in Prezzi, Patricia Anne v Discrimination Commissioner and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd:

[22] While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison ...or means specially favourable to success, interest or any desired end

21 Andreopoulos v University of Canberra [2020] ACAT 95 at [20], quoting Kidman v Casino Canberra Pty Ltd ACN 051 204 114 [2020] ACAT 50 at [22] (citations omitted)

[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint...22

1. The Tribunal's reasons reveal a failure to properly consider and apply s 8(2). Rather, as noted above, the Tribunal conflated the elements of 'detriment' and 'unfavourable treatment' and did not address the specific aspects of s 8(2) in the manner described by the relevant authorities.

1. There is in effect no finding with respect to s 8(2) in the Tribunal's reasons.

Section 7(1) Attributes and onus

[Reasons for Appeal: substantive decision, para 1 and 2; List of Errors, para 1(1)(a) and (b)]

1. For the purpose of s 8(2), the identification of a relevant attribute giving rise to the alleged discrimination is critical. The attributes are set out in sub-section 7(1). Relevantly, the list of attributes includes 'irrelevant criminal record' at sub-section 7(1)(k).
2. The Dictionary defines 'irrelevant criminal record' as follows:

_...in relation to a person, means a record relating to an offence, or an alleged offence, if - _

(a) _the person has been charged with the offence but - _

(i) a proceeding for the alleged offence is not finalised; or

(ii) the charge has lapsed, been withdrawn or discharged, or struck out; or

(b) the person has been acquitted of the alleged offence; or

(c) the person has had a conviction for the alleged offence quashed or set aside; or

22 [2020] ACAT 95 at [21]- [22], quoting Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [22], [24]the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000, for the offence.

(d) the person has been served with an infringement notice for the alleged offence; or

(e) the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation which discrimination arises; or

(f) the person has a spent conviction of an extinguished conviction within the meaning of the Spent Convictions Act 2000, for the offence

Note The Spent Convictions Act 2000 sets out which convictions can be spent (see that Act s 11 and when a conviction is spent (see that Act, s 12).

1. Whether a person has the attribute of 'irrelevant criminal record' is a factual question.
2. The Tribunal's approach discloses a number of errors with respect to determining whether Complainant DT232023 had the relevant attribute, notwithstanding there was no dispute she had a criminal record.
3. First, the Tribunal incorrectly imposed the onus on CSD to prove the complainant's criminal was 'not irrelevant' (see [42]). Contrary to [42], [44],[48], [50], [56] the Territory did not bear the onus of establishing Complainant DT232023's criminal record was 'not irrelevant'. Paragraph [50] is particularly telling in this regard.
4. The Tribunal misconstrued s 7(1)(k), failed to have regard to any relevant authority to support the 'reverse onus' and failed to apply the correct approach.
5. For the purpose of s 7(1), a complainant must prove they have the particular attribute relied on. In some cases, there may be no dispute but in other cases, the attribute may not be obvious, clear or agreed. In those circumstances, the complainant must prove they have the relevant attribute.23
6. The correct test was described in Complainant 201908 v Commissioner For Fair Trading (Discrimination) [2020] ACAT 2424 as follows:

• [25] Under the Discrimination Act, the applicant must establish that he possesses a protected attribute within the meaning of section 7 of the Discrimination Act Therefore the onus is on the applicant to establish that he has an irrelevant criminal record. This is a jurisdictional fact [fn3 Pereira v Commissioner of Police NT Anti-Discrimination Commission (15 August 2012)], and this Tribunal only has jurisdiction to consider this matter if satisfied that the applicant does in fact have a protected attribute.
  • [26] 'Irrelevant criminal record' is an unusual protected attribute when compared to the other protected attributes in section 7 of the Discrimination Act, because the attribute that is protected is not the possession of a criminal record per se, but rather the possession of a criminal record the circumstances of which are irrelevant to the situation in which it is or was considered. This is the only protected attribute that a person may or may not have depending on the surrounding facts and law. [fn 4 See above Pereira v Commissioner of Police NT Anti- Discrimination Commission (15 August 2012); Rees et al Australian Anti-Discrimination and Equal Opportunity Law, 3rd ed, (Federation Press, 2018) at [10.7.7]
  • [27] The question of whether the applicant has an irrelevant criminal record must therefore be considered first. To determine this, there are four questions that must be answered:

(a) Does the applicant have a conviction for an offence/offences? > > (b) What are the circumstances of the offence/s for which the applicant was convicted? > > (c) What is the situation in which the alleged discrimination arises? > > (d) Are the circumstances of the offence/s directly relevant to the situation?

7. Further in Complainant 201908 at [72], the Tribunal said:

[72] The next question is whether the applicant's criminal convictions are not directly relevant to the circumstances in which they are considered. This is a question of mixed fact and law, but the factual element is a question of jurisdictional fact - if the applicant does not have the protected attribute, the Tribunal cannot adjudicate this matter. The applicant bears the onus of proof.

1. Before the Tribunal, the Territory submitted that the Complainant DT232023 had to show she had the protected attribute.25 However, the Tribunal did not engage or address the submission. Further, no part of the Tribunal's reasons referred to any authority to support its finding that altered the language and effect of s 7(1)(k).
2. Second, contrary to [42], there is nothing in the Discrimination Act that imposed any obligation on the Territory to establish that Complainant DT232023's criminal record was 'not irrelevant'. The Tribunal set out s 70 of the Discrimination Act (at [33]) and s 53CA of the HR Act (at [32]). These provisions expressly address when the onus shifts to a respondent. Nothing in these provisions extends to an onus to disprove an element of an attribute.

23 Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132, Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 at [137].

24 See also Complainant 202012 v Australian Capital Territory (As Represented By The Director-General, Community Services Directorate (Discrimination) [2023] ACAT 17 at [81], [82].

25 Transcript p 26/13-14 and p 41/5 - 47 and p 42/1 - 40.

1. Further, the Tribunal does not refer to any provision in the Discrimination Act, the HRC Act or any authority for its finding at [42] that the '[employer] must determine that matter'. Territory had the onus of establishing the employee had an irrelevant criminal record. The matters described in [43] highlight how the Tribunal has misconstrued the provisions and operation of the Discrimination Act and HR Act. The approach described appears to be based on the Fair Work Commission's approach to determining whether the termination of employment on the ground of employee's criminal conviction/s is unfair.26 That is not the test for the Discrimination Act.
2. Third, the contention that the Territory had an obligation to make inquiries after Complainant DT232023 lodged a complaint with the Commission and was required to establish during conciliation that the complainant's criminal record was 'not relevant'(see [49]) is, with respect, completely misconceived and wrong. There was no obligation on the Territory under the Discrimination Act or otherwise to do so.
3. Fourth, the Tribunal's findings are premised on the Territory having an obligation as an employer to consult, give notice and provide procedural fairness. This finding is not made by reference to any evidence or how such an obligation engages s 10(2)(d) (see [23], [48]). The finding is contrary to well-established principles that an employer is not bound to act reasonably, to give reasons or to accord an employee an opportunity to be heard,27 unless there is a specific contractual or statutory obligation to do so. There was no obligation on the Territory under the Discrimination Act or otherwise to provide Complainant DT232023 with the information provided by the Integrity Commission (Liability decision [23]).
4. Fifth, the Tribunal's approach to determining the 'relevance' of the criminal record was based on subjective considerations focusing solely on the complainant. The Tribunal did not apply an objective test (see [17]). For example, the Tribunal did not consider the express and implied terms and conditions of Complainant DT232023's employment, any relevant policies, the nature and scope of her duties, the CSD's functions and responsibilities, Complainant DT232023's access to information or engagement with other employees or the public. If the Tribunal had referred to or considered any of the relevant authorities, it should have assessed the available evidence by reference to the approach described in Complainant 201908 v Commissioner For Fair Trading (Discrimination) [2020] ACAT 24 at [27].
5. Finally, the Tribunal's findings relied on information that was irrelevant to the specific issue that arose for determination, including:
   1. Complainant DT232023's disclosure of a criminal record in February 2021 and November 2021 (Liability decision [12], [16], [45]);

26 Compare in Hussein v Westpac Banking Corporation (1995) 59 IR 103 at 107; Bobrenitsky v Sydney Trains [2023] FCAFC 96.

27 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 443 (McHugh and Gummow JJ); Intico (Vic) Pty Ltd & Ors v Walmsley [2004] VSCA 90 at [17] (Buchanan JA, Ormiston JA agreeing at [1]. Eames JA agreeing at [25]).

1. a previous complaint resolved without admissions (Liability decision [15], [46]);
2. the absence of any misconduct allegations (Liability decision [17], [50]).

Conclusions and orders with respect to the Liability decision

1. In conclusion for all of these reasons, the Liability decision should be set aside and based on the available evidence, the complaint should be dismissed.

1. The Respondent's submissions regarding liability,[28] were as follows:

1. _Firstly, s7(k) of the Discrimination Act 1991 (ACT) ('the Discrimination Act') provides that an irrelevant criminal record is a protected attribute. The Dictionary to the Act defines the term, and states that a criminal record will be irrelevant if "the circumstances of the offence are not directly relevant to the situation in which the discrimination arises". In Complainant 201908 the Tribunal stated that consideration of a criminal record must be directly relevant to the exercise of a particular decision, in order to be permissible under the Act._8
2. Section 8 of the Discrimination Act provides the meaning of 'discrimination.' In the present situation, the relevant requirement is that the appellant treated, or proposed to treat, the respondent unfavourably because of her protected attribute, the irrelevant criminal record. In Kidman,9 which was upheld on appeal,10 the Tribunal held that an assertion of unfavourable treatment warrants an objective, not a comparative, test. Simply, 'if the consequence of the treatment is unfavourable to that person there is "unfavourable treatment.'"11 The Tribunal also noted that lawful action (such as to take steps towards disciplinary action against an employee) can nonetheless be unfavourable treatment.12
3. Next, s 10(2)(d) provides that it is unlawful for an employer to discriminate against an employee by subjecting the employee to any other detriment. Though not defined in the Discrimination Act, the Tribunal has taken the word detriment to have its natural meaning, consisting of prejudice, loss or material disadvantage.13 Assessment of detriment may also warrant an objective test, whereby the detriment suffered is something which a reasonable person would consider to be a detriment.14

8 Complainant DT232023 v The Australian Capital Territory [2024] ACAT 89 [86].

9 Kidman v Casino Canberra Ltd [2020] ACAT 50 ('Kidman')

10Casino Canberra Ltd v Kidman [2022] ACAT 22.

13 Applicant DT62023 v Canberra Institute of Technology [2024] ACAT 30 [18].

14 Burns v Sunol [2014] NSWCATAD 62 [85].

Decisions from tribunals in other jurisdictions suggest that the detriment must only be more than trivial.15

1. Section 53CA of the Human Rights Commission Act 2005 (ACT) ('HRCA') places the onus of establishing a complaint about discrimination on the complainant. Under subsections (1)(a), 2(a)(i) and 2(b)(i), The complainant must present evidence to establish that they have been treated unfavourably because of a protected attribute.
2. If the Tribunal is satisfied that the respondent to a discrimination complaint has engaged in an unlawful act, s 53E(2) requires the tribunal to make a single or combination of orders prohibiting the repeated act, requiring redress, or ordering the respondent to pay compensation for any loss or damage suffered by the person because of the unlawful act.
3. In that regard, it is submitted that each of the Liability decision and the Damages decision correctly identified the relevant statutory provisions and principles.

Liability decision - reasons for appeal 1 - 3, 5

1. The appellant submits that the Tribunal erred in applying a 'reverse onus' of proof in relation to the foundational issue being the protected attribute of irrelevant criminal record.
2. Further, at appeal reasons 5, the appellant complains that the Tribunal failed to apply an objective test in determining if the respondent had an irrelevant criminal record by imposing an obligation on the appellant to considering the circumstances, failing to consider the duties she was performing and importing an obligation to consult with the respondent.
3. The respondent submits that there is considerable overlap in these reasons for appeal, and therefore responds to them together as follows.
4. Firstly, it is submitted that the appellant's criticism of the Liability decision in this regard does not reflect a fair reading of the decision.
5. Whilst Senior Member Drake did use the word 'onus' at paragraph 42, she was not using that word in the context of the legal onus of proof in the Tribunal proceedings.
6. The discussion at [42] and [431 is plainly directed to the obligation imposed upon the appellant at the time it made its decision following receipt of the 11 April letter from the Integrity Commission. So much is clear from the text of the decision in these paragraphs, where the Senior Member describes that the appellant was not able to delegate its decision making to the Integrity Commission. The Senior Member is simply describing that the appellant, as employer, was the party responsible for ensuring that it did not discriminate against the respondent upon the basis of an irrelevant criminal record.

15 Bogie v The University of Western Sydney (1990) NSWEOC 92 [313]; Sivanathan v Commissioner of Police (NSW) [2001] NSWADT 44 [41]

1. In its consideration, the Tribunal also set out at [45)-[49] steps that may have been taken by the appellant, upon receipt of the Integrity Commission letter, to assess the relevance of the respondent's criminal record. This analysis does not demonstrate a reversal of onus in the proceedings, but rather accords with the similar analysis described by the Tribunal in Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2020] ACAT 24 at [27].
2. Secondly, it is submitted that the Tribunal's analysis at [50] does not amount to "the imposition of an obligation" but rather an analysis of what was required so as to be satisfied whether a person's criminal record was relevant or irrelevant. The Senior Member Said:

...some of those factors would have included the respondent's previous determination to employ her with her acknowledged criminal record, her satisfactory performance to date and the absence of any acts of dishonesty during her employment which might have been otherwise anticipated in someone with her criminal record. Also, her personal circumstances.

1. It is submitted, therefore, that the Tribunal did not err as alleged.
2. Further, whilst the Tribunal did not refer to authority, the decision in any event applied the principles set out in Complainant 201908 referred to above to the relevant evidence before it to conclude that the respondent was a person with the protected attribute of irrelevant criminal record.
3. That evidence included the respondent's evidence of the disclosure of her criminal record at the time of her application in February 2021., her subsequent further elaboration during the 2021 HRC conciliation, the further disclosure of the criminal record in the new starter pack and, importantly, her unbroken period of employment since November 2021 where she had demonstrated satisfactory performance with no misconduct.
4. The appellant presented very little evidence to rebut the respondent's claim. The statement of Magdalena Dreyer-White16 relied upon by the appellant included the following statement at [25]:

Had I been aware of Ms Rasic's criminal history, I would have made inquiries with her and risk assessed her against the inherent requirements of the position of Executive Assistant. It may have been that my advice would have been not to place Ms Rasic in that role.

1. There, Ms Dreyer-White was discussing the steps she would have taken if the complainant's criminal record had come to her attention at the time she was appointed to the Executive Assistant role. Whilst this evidence was not reproduced in the Tribunal's decision, there is a remarkable similarity between the process Ms Dreyer-White describes she would have employed in those hypothetical circumstances (ie. the absence of the Integrity Commission letter) and the analysis of the Senior Member as to the steps to that ought to be taken to determine whether a criminal record is irrelevant

16 Ex. R4 Liability

Notably, Ms Dreyer-White does not say that she would have removed the respondent's access to systems, removed her from active employment or advised her she would not be offered further temporary contracts

1. It is submitted that the Tribunal was entitled to conclude that the evidence comfortably established that the respondent's criminal record was irrelevant to her employment, and that the appellant's evidence did not rebut that proposition. It is unsurprising that the Tribunal reached that conclusion given that the respondent had been truthful in her pre-employment disclosures, was performing satisfactorily in the same position from which she was removed for several months and had not been the subject of any complaint for misconduct in the 17 months of her continuous engagement.

1. It is submitted that the appellant's complaints as to the alleged failure of the Tribunal to consider the tests of 'unfavourable treatment' in s 8(2) of the Discrimination Act do not demonstrate any error.
2. Firstly, s 8(2) provides the meaning of discrimination. Section 10(2) then picks up the use of the word discriminate, given the meaning in s 8(2), and describes that subjecting an employee to detriment is unlawful discrimination. Plainly, a finding of detriment under s 10(2)(d) is capable of satisfying the definition of unfavourable treatment in s 8(2).
3. Further, the Tribunal clearly understood that its task involved the assessment of the s 8(2) question as it is specifically referred to at paragraphs 29 - 32 of the Liability decision and it engaged with the appellant's submission that its conduct did not amount to unfavourable treatment.17
4. The Tribunal did not err in its application of s 8(2) as alleged or at all.

1. The appellant submits that the Tribunal erred in finding that its treatment of the respondent was a detriment within the meaning of that term in s 10(2)(d) of the Discrimination Act.
2. The respondent submits that the appellant's approach is too narrow, does not accord with principle and authority and fails to have proper regard to the evidence.
3. By the conclusion of the hearing, there was no contest as to the nature of the action taken by the appellant in response to the receipt by it of the letter for the Integrity Commission.
4. The Tribunal characterised the following matters as 'detriment':

(a) The removal of access to the appellant's systems;

(b) The absence of real work;

(c) The decision not to offer any work in the future.

1. Whilst the Tribunal did not refer to any authority when deciding the detriment question, it is submitted that upon a fair reading of the decision, the relevant principles were considered.18
2. The appellant submits that the matters found to be detriment were not such - rather - they were mere consequences, without the necessary detrimental character.
3. It appears to be the appellant's position that because the respondent was paid until the expiration of the term of her temporary contract and because she had expressed an intention to take another job she had been offered by CIT, the action taken by the appellant was not detrimental.
4. These arguments ignore completely the importance of work and the impact of its removal, particularly for a person who has a protected attribute like an irrelevant criminal record. The Tribunal no doubt had regard to the subjective response of the respondent to that circumstance. But it is submitted that her response was an entirely predictable one, which any reasonable person would anticipate. It was, objectively, detrimental action.
5. The appellant also argues that because the common law does not necessarily imply into contracts for work a term requiring the employer to provide meaningful work, the appellant's decision to preclude the respondent from the workplace cannot be discrimination. With respect, that is an argument that ought to be rejected. It cannot stand with the serious statutory obligation imposed by the Discrimination Act. It is difficult to imagine that the same argument would be made by any government as an employer if, for example, one of its departments had put a person of a particular ethnicity on gardening leave because of that ethnic background. The proposition barely needs to be stated to be dismissed.
6. It is further argued by the appellant that the Tribunal's decision at [54] as to the decision not to offer any future work in the future was an error. The 12 April letter said "your temporary employment contract with the Community Services Directorate (the Directorate) will not be renewed". The Tribunal, at [54], characterised that decision as a decision not to offer future work. That characterisation of the decision was open to the Tribunal. It was made in the context of assessing whether the decision was of detriment. It was limited to that purpose. No error is demonstrated.
7. Finally, in Casino Canberra Limited ACN 051204114 v Kidman (Appeal) [2022] ACAT 2022, at [81] the Appeal Tribunal considered the function of sections 8(2) and 10(2) of the Discrimination Act together and said:

A careful reading of these sections, as interpreted and applied in other cases discussed below, identifies the following aspects of this part of the scheme:

(a) The tribunal must be satisfied that the person was treated 'unfavourably' by being subjected to some detriment.

(b) Whether the person was treated unfavourably can be ascertained by reference to consequences of that treatment for, or the effect of hat treatment on, the person

(c) Whether a person was treated unfavourably is determined by reference to the effect of the treatment on that person, not by comparison of the treatment of the person with the treatment of others.

(d) The treatment is direct discrimination if the person was treated unfavourably 'because' the person has one or more of the protected attributes.

1. As to detriment, the Appeal Tribunal in Kidman went on to cite the decision of Deputy President Peedom in the ACT Discrimination Tribunal in Cooley and Australian National University19 where the Deputy President said:

A detriment involves some loss, damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOG 92-808 and Sivananthan v Commissioner of Police [2001] NSWADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or respondent (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).

1. It is submitted that having regard to the authorities, each of the matters found by the Tribunal to be detrimental to the respondent were objectively so. In addition, there was also sufficient evidence before the Tribunal of the hurt and distress of the respondent to find, objectively, that she had been subjected to detriment.

1. The respondent submits that the appeal as to liability ought to be dismissed.

1. There are multiple decisions of this Tribunal, and of Courts, which set out the basic statutory parameters of claims that allege discrimination.[29] For current purposes, I note the following.
2. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of a number of "protected attributes". These relevantly include, disability,[30] sex,[31] irrelevant criminal record,[32] and subjection to domestic or family violence.[33]
3. Section 8 of the same Act relevantly provides:

(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes...

_(1) It is unlawful for an employer to discriminate against a person - _

(a) in the arrangements made for the purpose of deciding who should be offered employment; or

(b) in deciding who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

_(2) It is unlawful for an employer to discriminate against an employee - _

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

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or

(c) by dismissing the employee; or

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

1. Section 70 of the D Act relevantly provides:

If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.

1. Section 53CA of the Human Rights Commission Act (HRC Act) specifies the onus in establishing a discrimination complaint before ACAT as being, in the first instance, upon the Applicant:[34]

53CA Onus of establishing complaint about discrimination etc

_(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by - _

(a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or

(b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).

_(2) It is a rebuttable presumption that discrimination has occurred if the complainant - _

_(a) establishes that - _

(i) for a complaint about direct discrimination - the treatment or proposed treatment is unfavourable; and

(ii) for a complaint about indirect discrimination - the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and

_(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation - _

(i) for a complaint about direct discrimination - that the treatment or proposed treatment is because of a protected attribute of the other person; or

(ii) for a complaint about indirect discrimination - that the effect of disadvantaging the other person is because of a protected attribute of the other person.

_(3) The presumption under subsection (2) is rebutted if the person complained about establishes that - _

(a) for a complaint about direct discrimination - the treatment is not because of a protected attribute of the other person; or

(b) for a complaint about indirect discrimination - the effect of disadvantaging a person is not because of a protected attribute of the other person.

Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).

protected attribute means a protected attribute under the Discrimination Act 1991.

1. The reasons of the Tribunal below are economical, notably those exposing the "consideration" of evidence and submissions, which run from [42] - [56]. Regrettably, they often conceal more than they expose. Without going through every paragraph of the "consideration" section of the reasons, especially in the light of the discussion above, it is sufficient to record the following matters.
2. First, [42] simply states:

The Respondent bears the onus to establish that the Applicant's criminal record is not irrelevant. It must determine the matter. The respondent cannot delegate the determination of that issue.

1. These statements presume or assume that the Applicant had relevantly discharged her responsibility, under section 53CA of the Human Rights Commission Act (the HRC Act), and equally under section.70 of the Discrimination Act (the D Act), to establish her contention that the Respondent had relevantly discriminated against her as alleged and as set out in [12] - [28] of the reasons.[35] Unfortunately, there is no "consideration" of section.53CA of the HRC Act or of section.70 of the of the D Act, or any relevant authority (all of which are contrary to the Tribunal's position) and the Applicant having discharged - and how she had done so - her onus to establish relevant "discrimination" by the Respondent.
2. As is evident from the discussion above in relation to the Applicant's documentary evidence that was not considered by the Tribunal below, [43] - [55] of the Tribunal's reasons are all concerned with a range of deficiencies the Tribunal saw in the conduct of the Respondent, which in turn led to the determinations regarding "detriment" by the Respondent against the Applicant/Complainant.
3. The closest the Tribunal came to consider the evidence of the Applicant was in [56], which begins with the statement: "I have considered the complainant's family and domestic background, her current circumstances, and the context of her criminal record, including the material outlined by the complainant's psychiatrist." Such matters do not relate to the issue of the liability of the Appellant. To the degree relevant, they might relate to "damages".
4. In short, there was no consideration by the Tribunal below regarding how the Applicant had relevantly discharged the onus she bore under section 70 of the D Act and section 53CA of the HRC Act to establish that the Appellant had discriminated against her. What evidence the Tribunal considered in this regard was not explained. This constituted a fundamental evidentiary flaw, and was contrary to basal principle.
5. Secondly, at [53] and [54] regarding the Applicant being placed on what is somewhat commonly termed "garden leave", the Tribunal stated (emphasis added):

[53] The respondent ceased to provide the complainant with work. The respondent submits that this is not a detriment. It submits it did not treat her unfavourably because it paid her. This is too narrow a definition of detriment.

[54] I am not persuaded that the payment of money negates the detriment that arises from removal from access to the Respondent's systems, the absence of real work, and the decision not to offer her any work in the future. Placing the Applicant on paid or gardening leave and not allowing her to continue active employment is a detriment. Employment requires the performance of work. The provision of gardening leave is not the performance of an employer's obligation to provide employment. Removal of the opportunity to perform work is a detriment. A decision made, without consultation, to refuse to extend the complainant's contract, whether or not she intended to avail herself of that opportunity, is a detriment.

1. There are multiple difficulties with the unsupported assertions here. Leaving to one side for the moment the issue of "detriment", which is discussed later in these reasons, I note the following.
2. First, these paragraphs from the decision under appeal, traverse (a) the duty of employers, (b) the rights of employees, (c) what constitutes "employment" or employment entitlement (without specifying whether these terms are understood under common law or any particular statute), (d) an alleged requirement for consultation about extending a limited, short-term contract of employment, and (e) a contention that an alleged refusal to extend a contract (that was expiring and where the Respondent had earlier resigned her employment to take up a full-time position elsewhere, and which position was no longer available)[36] constituted a detriment, the latter without any reference to the statutory definition of detriment in section 10(2) of the D Act. There is no discussion of, or reference to, any authority in relation to any of these matters.
3. Likewise, there is no discussion about, definition of, or authority for what the Tribunal at first instance (at [54]) intended to mean by the reference to "real work" or "active employment." Nor is there any finding, in the light of [13] of the reasons, regarding the import and effect of section 10(2)(c) in relation to a dismissal of the employee.
4. Secondly, there is no review of any of the multiple authorities that consider the issue of paying employees not to work. As noted below, a review of even some of them results in a rather more complex and nuanced jurisprudential situation than the unqualified declaratory statements in the reasons regarding "real work", access to systems, consultation and the alleged refusal to extend the Respondent's employment. All of these matters, and a few others, are bundled together in the paragraphs here, and elsewhere in the reasons. In my view, a review of the authorities would have made clear that the unqualified contentions or views expressed in the paragraphs under discussion here are unsupportable. The statements by the Tribunal here were plainly erroneous.
5. For example, and accepting the dated language, in Automatic Fire Sprinklers Pty Ltd v Watson, Dixon J said: "A master [sic] who sends [a] servant upon a holiday upon full pay can be sued for wages under the contract. ...They also serve who only stand and wait."[37]
6. More recently, in Capital Aircraft Services Pty Ltd v Brolin, the ACT Court of Appeal said, at [24] and [25]:[38]

[24] In our opinion, neither the duty of good faith nor the duty to act in accordance with the objective of the contract required the appellant to offer the respondent any amount of work. Nor can we see why such a term needs to be implied to give business efficacy to the contract. As Mason J said in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347, the conditions necessary to ground the implication of a term were summarized by the majority in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] UKPCHCA 1; (1977) 180 CLR 266 at 283:

...(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;(3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

[25] In the present case, we are unable to see how conditions (2), (3) and (4) could be held to have been satisfied. The contract was essentially an agreement for casual employment. It contained no warranty to the effect that work would be available or that, if available, it would be offered to the respondent in preference to any other suitably qualified person. There was no evidence as to whether the appellant had entered into similar contracts with other such people, employed any on a full time or part time basis or otherwise drew on their services. There was evidence that some work had, in fact, been offered to the respondent, and that more would have been available to him but that does not provide any adequate basis for the retrospective implication of a term of the kind suggested. Had the work subsided to a trickle or even ceased, it is difficult to see how the respondent could have mounted any credible action against the appellant for breach of such a term.

1. More recently still, in Grace Worldwide (Australia) Pty Ltd v Steve Alves, Slattery J in the New South Wales Supreme Court said, at [51] - [53] (emphasis added):[39]

[51] The applicable legal principles may be shortly stated. The law as to whether an employer is required as a matter of contractual obligation to provide an employee with work, or merely to pay the employee the amount required under the employment contract when the employee is ready, willing and able to perform the work is "a vexed one": Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32 (Wesoky) at [16]. The question in each case is one of construction of the contract in question. Where the contract provides that benefits accrued to the employee as a consequences of the work, courts have more readily implied a contractual obligation on the part of the employer to provide the work, unless the employer has an express contractual right not to do so: Wesoky at [16].

[52] Any modern analysis of this issue is assisted by reference to the judgment of Morritt LJ in William Hill Organisation Ltd v Tucker [1998] EWCA Civ 615; [1999] ICR 291 (William Hill). The question in that case was whether the employment of a senior dealer in a betting business required the employer merely to retain the dealer in service, or to give him actual work to be done. Observing that the question will always depend upon the particular contract, Morritt LJ stated (at 298-299) that the cases did illustrate certain categories and trends that were of assistance. Morritt LJ pointed to the common feature of the cases that the courts are more ready to find an obligation to provide work in theatrical engagements and then went on as follows:

Similarly, engagement for a specific project such as employment on a specific voyage (Driscoll v Australian Royal Mail Steam Navigation Co (1859) 1 F & F 458), or in a specific and unique post such as the chief sub‐editor of a newspaper (Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647), or as the manager of an overseas business (Addis v Gramophone Co Ltd [1909] UKHL 1; [1909] AC 488), have been treated by the courts as giving rise to an obligation on the part of the employer not to do anything which puts the promised employment out of his power. And where the promised remuneration depends on the employer providing the opportunity to earn it then an obligation to afford the employee an opportunity so to do is readily implied: cf Devonald v Rosser & Sons [1906] 2 KB 728 and Addis v Gramophone Co Ltd [1909] UKHL 1; [1909] AC 488.

[53] In William Hill, Morritt LJ posed (at 301) the same question in this field as Sir John Donaldson posed in Langston v Amalgamated Union of Engineering Workers (No 2) [1974] ICR 510, which Morritt LJ conveniently summarised for his own purposes in William Hill as follows:

In my view, in all cases involving garden leave the first question must be that posed by Sir John Donaldson in Langston v Amalgamated Union of Engineering Workers (No 2) [1974] ICR 510. Does the consideration moving from this employer extend to an obligation to permit the employee to do the work or is it confined to payment of the remuneration agreed? If the answer is in the sense of the latter alternative then the employer is entitled to send his employee home on garden leave notwithstanding the absence of an express or implied power to do so because there is no contractual obligation to prevent him. If the answer is in the sense of the former alternative then the employer needs a provision entitling him to send his employee on garden leave so as to absolve him from what would otherwise be a breach of contract. It is unlikely, given the hypothesis on which the point arises, that there could be an implied power for that purpose. Thus, in practice, an employer will need to stipulate for an express power to send his employee on garden leave in all cases in which the contract imposes on him an obligation to permit the employee to do the work.

1. The further difficulty in not having considered any authority regarding the cases on employment, particularly where an employee continues to be paid but does not perform any work, such as those discussed above, the Tribunal at first instance compounded the difficulties by not linking correctly the duties of an employer and the entitlements of an employee with what was, and what was not, a "detriment" under the D Act. This is in circumstances where, for example, the Tribunal found, at [54], that "removal of the opportunity to perform work is a detriment." In the same place, the Tribunal further found that "A decision made, without consultation, to refuse to extend the complainant's contract, whether or not she intended to avail herself of that opportunity, is a detriment."
2. In the light of these and multiple other authorities, it may reasonably and properly be said that (a) whether an employer has a duty to provide work ("real" or otherwise), (b) whether removal of the opportunity to perform work is a detriment, and (c) whether a decision to refuse to extend a contract had been made by the Appellant, are all matters of construction of the particular contract involved between the parties. It is not implied as a matter of law. No such consideration or analysis of the terms and conditions, or the context of the Applicant's contract with the Appellant, was undertaken in the decision under appeal. The failure properly to consider or address any of these authorities necessarily led the Tribunal into error.
3. I also note that, in a contest under the FW Act, the High Court in Workpac Pty Ltd v Rossato discussed generally the incidents of casual employment, which has equal application to persons on short-term, temporary employment as the Applicant was here, and noted, at [56] and [57] (emphasis added):[40]

[56] In Commonwealth Bank of Australia v Barker, French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

[57] A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a "firm advance commitment" must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement.

1. Precisely because there was no consideration of the terms, or context, of the Applicant's employment with the Directorate, in the light of the above discussion, it follows that it was impermissible for the Tribunal at first instance to make the broad and unsupported assertions set out in [53] and [54] noted above regarding the characterisation of the paid leave provided to the Respondent, and other contentions in the same places, such as various obligations said to be imposed upon the employer. Likewise, the Tribunal's assertion (at [54]) regarding the employer here having a duty to consult with the Applicant (a) ignores the statements of principle outlined above from the High Court of the necessity to properly consider the detail of the employment contract in question,[41] and (b) had no relevant authority cited to support this contention.
2. Thirdly, although set out earlier in the Tribunal's reasons (at [29] and [30]), there was no actual discussion, as there should have been, of sections 8 and 10(2) of the D Act in relation to the Appellant's alleged discriminatory conduct towards the Applicant. Necessarily, there was also no discussion, notably in the "consideration" section of the reasons, of the sections of the D Act just mentioned, or of what "detriment" actually means for the purposes of any of the legislation involved, or in the context of the facts and circumstances here.[42] The following matters need to be noted in relation to these sections and their application to the facts here:

(a) A "detriment" refers to a substantial or real (as opposed to a transitory or trivial) disadvantage.[43] "Detriment" must also be objectively assessed.[44] There is no discussion in the reasons below of what is and what is not a detriment. Nor is there any discussion or application of any objective test of the evidence before the Tribunal regarding any detriment alleged. Instead, at [34] and [55], the Tribunal summarised the impact or effect upon the Applicant of her resignation and consequent matters, which was necessarily an assumed acceptance of the Applicant's subjective assessment of her circumstances.

(b) A Tribunal or Court must also be cautious to ensure that the proper distinction between, on the one hand, the objectively assessed detriment to an employee, and on the other, the consequences of any such detriment, are properly observed.[45] Here, the only matters relied upon by the Tribunal were statements by the Applicant regarding her [subjective] views about her family and domestic background, her current circumstances, and, among other things, the opinion of her psychiatrist.[46] As significant as these matters are, they are the Applicant's assessment of her state as a consequence of what had transpired since her resignation from the Appellant.

(c) The facts and circumstances here plainly engaged, among other provisions, section 10(2)(d) of the D Act. There was no objective assessment of evidence regarding whether, so assessed, there was a "detriment" for the purposes of the section. The Tribunal simply accepted at face value, and without examination in the light of any authority, the Applicant's statements of how she felt in the light of being placed on paid leave, but which required also a consideration of the terms of her short-term contract, and the context of the situation as set out (but not examined) in the evidence of Ms Perkins regarding the Applicant's position having been advertised for a full-time role and a process (from which the Applicant would, presumably, not have been excluded) for a merit-based selection.

1. In conclusion, it is sufficient to note a few remaining matters somewhat summarily.
2. First, at [41], the Tribunal noted the Respondent's submission that the Complainant did not possess a protected attribute, i.e. "an irrelevant criminal record." In the next paragraph of the reasons, there is the assertion that "the Respondent bears the onus to establish that the Applicant's criminal record is not relevant. It must determine that matter. The respondent cannot delegate the determination of that matter."
3. As noted earlier in these reasons, s.53CA of the HRC Act provides for where the relevant onus rests in discrimination complaints. It rests first of all with the Complainant. In the facts and circumstances of this matter, the Tribunal below did not set out, or consider (in the jurisprudentially accepted sense in Wainohu and Soulemezis), what evidence, objectively considered, from the Applicant had relevantly satisfied the statutory onus. Nor did the Tribunal relevantly consider and weigh the evidence of the Appellant.
4. Secondly, at [45] and [46] of the reasons, the Tribunal recorded the view that the Applicant had informed the Appellant of her criminal convictions, in different ways, for example, in her original application for employment documents, and in the [privileged] conciliation conference with Mr Rose. There is, however, again no weighing by the Tribunal itself of the Applicant's criminal record, notably in the light of Ms Drejer-White's (unconsidered) evidence, regarding the Applicant's criminal record. Only by such proper evaluation of that record in the light of all the evidence, could it fairly be said that it was, or was not, a relevant criminal record, and in turn, whether it was captured by the terms of section 10(2)(d) of the D Act. An assumption, or an acceptance of the Applicant's subjective views, or the views of Mr Rose (who was no longer employed by the Appellant), did not absolve the Tribunal from making a proper, relevant and objective assessment of all the evidence regarding what was, and what was not, a relevant criminal record. This did not occur.
5. In addition to these evidentiary, procedural and inapposite statutory flaws in the decision below, and particularly in the light of the discussion in these reasons regarding onus, I otherwise accept and adopt the submissions of the Appellant, particularly in relation to the proper construction and application of sections 7 and 8 of the D Act.

1. For these reasons, the decision below cannot stand and must be set aside, and the primary Application below dismissed.
2. As noted at the outset of these reasons, it is axiomatic that if the liability decision is set aside, the damages decision must likewise be set aside. That will certainly be the decision of the Tribunal. But as also foreshadowed, a comment or two regarding the decision on damages is apposite in the circumstances, not least because of the size of the award.
3. First, as also noted earlier, the decision on damages did not confine itself to the findings made in the liability judgment. This was impermissible. Further, in making further findings regarding causation, the Tribunal below failed to afford procedural fairness to both parties by denying them the opportunity to make submissions.[47]
4. Secondly, the curious reference (at [104]) to "comparable tort cases" does not identify what specific cases are being referenced.
5. Thirdly, the decision relating to damages plainly assumed the correctness of, and the evidence relied upon in, the liability decision. There was no examination of the "missing" evidence from the Appellant. This is particularly unfortunate in the light of the Tribunal's assertion (at [95]), namely:

I accept that, subjectively, the decision by the original decisionmaker was made in good faith, in circumstances that would explain her need for haste and an understandable alarm she may have felt. Objectively, however, as found in the liability decision, that was wrong and, in any event, there has been ample opportunity by the Respondent to get it right.

1. What the Tribunal meant by "getting it right" was enigmatic, unexplained, and unsupported by authority. Otherwise, I need only refer to the reasons above to highlight the multiple errors in the liability decision regarding, among a number of things, the failure properly to consider the statutory regime regarding "onus" and who bore it, and likewise (repeated almost ad nauseam) the failure to consider in the liability decision the evidence provided by the Appellant.
2. Viewed "objectively" and in accordance with authority, the actions of Ms Drejer-White regarding the Applicant were perfectly sound, especially in the light of the detail in the Integrity Commission's two letters. Likewise, there seems to have been little or any relevant consideration of the Applicant having actually resigned from her temporary contract. Rather, undue and improper assumptions were made about her employment, and which also took no account of the relevant context of her position, as outlined in the unconsidered evidence provided by Ms Perkins.
3. Nor, in either judgment, and in accordance with the High Court authority mentioned earlier, was there any consideration of the actual terms of the Applicant's temporary contract, save for the liability decision referring at [55] to the Appellant not being bound to offer an extension of the Applicant's temporary employment.
4. Finally, for current purposes, it is sufficient to note the following general comments regarding the awarding and assessment of damages from two prominent decisions of the Federal Court of Australia.
5. In Richardson v Oracle Corporation Australia Pty Ltd, the Full Federal Court stated that a Court or Tribunal may be assisted by general law principles, such as in tort, but they must not assume their operation over the relevant statutory framework involved in the particular case. The Court stated this again simply noting that tortious principles may be of assistance in the fixing of compensation, but tort principles are not the governing criteria.[48] Yet tortious principles were applied in the damages decision here, notwithstanding the Richardson decision being cited_._
6. The comments by the Full Court in Richardson were subsequently applied by Mortimer J (as her Honour then was) in Wotton v Queensland (No.5).[49]
7. In Richardson the Court awarded the Applicant $30,000 for future losses. The Applicant in that matter was a consulting manager, obviously working full-time, for the Respondent. Here, as already well recorded, the Applicant was a temporary employee working on a series of short-term contracts, the last one from which she had resigned, and the contract itself was to come to an end very shortly. She was awarded $80,000 for future loss of earning capacity, and overall a remarkable total sum of $265,372.87, all in relation to a temporary employee who had resigned her short-term contract, which the Tribunal in the damages reasons at [7] acknowledged, yet allowed for multiple amounts of damages under headings such as "future loss of earning capacity" and "future loss of superannuation."
8. One other example of a concerning finding in the damages decision is displayed in [69], thus:

In respect of medical expenses, no invoices were provided nor particulars to show what the past expenses might have been, and Mr Smith in oral argument said the claim was confined to the future. For the future, drawing on Dr Furst's estimates about what might be required, it was said there should be allowed 28 GP consultations at $90 per visit. This comes to $2,520. Also, 72 consultations with a psychologist at $300 per consultation, making a total of $21,600; 63 consultations with a psychiatrist at $500 a visit, totalling $31,500; and $15 per month for 84 months [ie 7 years] for medication. This is said to total $58,888, and reduced by 20% for vicissitudes, amounts to $45,504.

1. I simply note, without further comment, that these calculations were all made without evidence or particulars and rested upon estimates from a witness for the Applicant who was not cross-examined.
2. There are multiple references to the statutory regime regarding "damages" under the HRC Act in the Appellant's submissions. It is unnecessary to repeat them here, other than to record, in all the circumstances, and especially in the light of the Appeal Tribunal's decision regarding the liability decision, that I agree with and otherwise accept and adopt the Appellant's submissions in relation to damages.
3. For the reasons given here, both decisions of the Tribunal must be set aside, and the primary Application must be dismissed.

1. The orders of the original tribunal for DT 23/2023 dated 13 February 2024 are set aside.
2. The orders of the original tribunal DT 23/2023 dated 26 November 2024 are set aside.
3. The primary application be dismissed.

[1] The Appeal Tribunal that heard the appeal was constituted by PM Robinson and me. After I had prepared a draft of the reasons, certain personal matters arose which precluded PM Robinson continuing in the appeal. The Appeal Tribunal was thereupon re-constituted to comprise only me.

[2] New South Wales v Avery [2006] HCA 14; (2006) 230 CLR 174 at [27]. Gleeson CJ, at [2] and [3] agreed with the joint reasons.

[3] See, for example, Macken's Law of Employment, Ninth Edition, (Sydney: Lawbook Co. 2022) Ch.15 "Anti-discrimination". A. Stewart, Stewart's Guide to Employment Law, Sixth Edition, (Sydney: The Federation Press, 2018) Chapter 14 "Discrimination and Victimisation." Creighton & Stewart's Labour Law, Seventh Edition, (Sydney: The Federation Press, 2025), Chapter 20 "Employment Discrimination and the General Protections".

[4] Complainant DT232023 v The Australian Capital Territory represented by the Community Services Directorate (Discrimination) [2024] ACAT 17 (the liability decision) (14 February 2024); Complainant DT232023 v The Australian Capital Territory represented by the Community Services Directorate (Discrimination) [2024] ACAT 89 (the damages decision) (26 November 2024).

[5] See Complainant DT292023 v The Canberra Institute of Technology (Discrimination) [2024] ACAT 42 (18 June 2024).

[6] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275. His Honour's reference in par.14 in "Legal Practitioner" is obviously a reference to s.82(1)(a) and (b); the reference to sub-section (1) has been omitted. This decision was discussed in The Owners - Units Plan no 1475 v Davidson & Anor (Appeal) [2022] ACAT 10 at [3] - [5].

[7] See Turnbull v New South Wales Medical Board [1978] 2 NSWLR 281 at 297. Generally, see also the High Court's comments in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125.

[8] Victorian Stevedoring & General Contracting Co Pty ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109-110.

[9] Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102.

[10] [2017] ACAT 49; see also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

[12] Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109-110.

[13] Respondent's submissions, dated XYZ [4-14]

[14] The lists of witnesses who provided statements are set out respectively at [7] and [9] of the liability reasons.

[15] Among many places, see the comments regarding ordered decision-making and the reasons that disclose this process by French CJ and Kiefel J in Wainohu v New South Wales (2011) 243 CLR 181 at [54] - [58] (Wainohu) and the regularly cited decision of the New South Wales Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis).

[16] In Ms Drejer-White's witness statement (T 211-217) her name is spelt with a "j"; in the reasons, it is consistently spelt with a "y". Nothing turns on this.

[17] That correspondence is at T 277 - 279.

[18] I note the very different context of Mr Rose being in a confidential conciliation situation and process, on the one hand, and on the other hand, Ms Drejer-White receiving "out of the blue" a letter from the Integrity Commission that expressed concerns about the employment of the Applicant in any "trusted [position of] employment." The context is significant and important. Such distinction was not noted or apparently considered by the Tribunal.

[19] See also [52], where the Tribunal assessed the Appellant's conduct regarding, among other things, not extending her contract as an "immediate pre-emptive decision."

[20] See, for example, s.53CA of the HRC Act.

[22] The Integrity Commission's letter of 7 April 2024 was provided to the Applicant under cover of an email from Mr Henderson of 19 April 2024. See T 275.

[24] It will be recalled that the evidence of Ms Perkins was that this "early release date" was arranged on 31 March 2023.

[27] Appellants submissions, dated 28 February 2025 [19-37]

[28] Respondents submissions, dated 11 April 2025 [15-52]

[29] Among many decisions, see Shammas v Canberra Institute of Technology [2012] ACAT 24 at [35]; Complaint 202258 v Southern Restaurants (Vic) Pty Ltd [2023] ACAT 57 at [105]; Burns v Media Options Group Pty Ltd [2013] FCCA 79 at [131]; and very recently, Complainant 182023 v Director-General Community Services Directorate (Discrimination) [2025] ACAT 34.

[30] Discrimination Act s 7(1)(e).

[31] Discrimination Act s 7(1)(u)

[32] Discrimination Act s 7(1)(k)

[33] Discrimination Act s 7(1)(x)

[34] Regarding the relevant "onus" that rests upon Applicants in discrimination matters, see the Full Federal Court decision in Australian Medical Association v Wilson (Siddiqui's case) [1996] FCA 1618; (1996) 68 FCR 46 at 58.

[35] See also the submissions summarised at [34] - [36] of the reasons below.

[36] See the earlier discussion regarding the evidence of Ms Perkins but which was not discussed by the Tribunal below.

[37] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 466.

[38] Capital Aircraft Services Pty Ltd v Brolin [2007] ACTCA 8.

[39] Grace Worldwide (Australia) Pty Ltd v Steve Alves [2017] NSWSC 1296. See further the various and similar discussions in, for example, Avenia v Railway and Transport Health Fund [2017] FCA 859; (2017) 272 IR 151 at [114] - [117], [142] - 150], [154] and [194] (Lee J in the Federal Court of Australia), which involved a dentist who was suspended from practice under a detailed service contract, the Court holding that his suspension and no provision of work was generally acceptable in the circumstances and in the light of the contract between the parties. See also the High Court's comments in Mann v Capital Territory Health Commission [1982] HCA 10; (1982) 148 CLR 97 regarding a surgeon not being provided with ongoing work, and the difficulties for him to recover damages for injury not yet suffered but only apprehended, and Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 regarding duties of good faith not implied in contracts of employment in Australia, and the incidents of the employment contract at [16] - [29] and [35] - [41] in the joint reasons of Kiefel CJ, Bell and Keane JJ.

[40] Workpac Pty Ltd v Rossato (2021) 271 CLR 456. Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169, which generally discussed, in the context mainly of an investigation, that there was no general duty on an employer to act fairly and reasonably, which is to be contrasted to the Tribunal recording, and seemingly accepting, at [34], the Applicant's complaint or concern about ever being treated fairly.

[41] Having asserted in [54] that there was some duty to consult with the Applicant regarding the extension (or refusal)) of her contract, somewhat paradoxically at [55], the Tribunal said that the Respondent "was never bound to offer an extension of the Applicant's employment at the conclusion of her fixed term contract." How these statements could or should be reconciled was not explained.

[42] It is unnecessary to repeat the discussion earlier in these reasons regarding work and being paid not to work for a period of time. Nonetheless, that discussion of the jurisprudence is relevant also to the consideration here of "detriment" and the Tribunal's findings in this regard.

[43] See Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 at [398] (Katzmann J). See also the discussion in Applicant DT62023 v Canberra Institute of Technology [2024] ACAT 30 at [18].

[44] Georgiou v Spencer (No.2) [2011] FCA 22 at [4] (Besanko J).

[45] See, for example, the discussion by Mortimer J (as her Honour then was) in Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [67] - [68].

[46] Generally, see [34] - [36] and [56] of the reasons.

[47] See the damages decision at [83] - [88].

[48] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 at [30], [95] and [131].

[49] Wotton v Queensland (No.5) [2016] FCA 1457; (2016) 352 ALR 146 at [1600].