Waters v Public Transport Corporation

BETWEEN: COMMONWEALTH OF AUSTRALIA Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent AND: MICHAEL DOPKING Second Respondent CORAM: Lockhart, Sheppard and Lindgren JJ PLACE: Sydney DATE: 21 December 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The determination of the first respondent dated 25 January 1995 be set aside. 2. The registration under s 82A of the Sex Discrimination Act 1984 (Cth) of the determination of the first respondent dated 25 January 1995 be set aside. 2. The first respondent pay the applicant's cost of the proceedings, otherwise no order as to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G 103 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent MICHAEL DOPKING Second Respondent

COURT: Lockhart, Sheppard and Lindgren JJ DATE: 21 December 1995

REASONS FOR JUDGMENT LOCKHART J. This is an application by the Commonwealth of Australia for an order of review under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) of a decision under s. 81 of the Sex Discrimination Act 1984 (Cth) ('the Act') made by the Human Rights and Equal Opportunity Commission ('the Commission') constituted by its President. The application was heard by a Full Court of the Court in its original jurisdiction, following a direction made by the Chief Justice pursuant to s. 20(1A) of the Federal Court of Australia Act 1976. There are two respondents: first, the Commission; and second, Michael Dopking, whose complaint to the Commission is the source of this proceeding. Mr Dopking, a member of the Australian Defence Force, complained to the Commission that the policy of the Commission, with respect to the provision of certain benefits in relation to relocation of members of the Defence Force, discriminated against members whose marital status was single, and therefore was in breach of s. 14 of the Act. The Commission found that Mr Dopking's complaint was substantiated. The Commonwealth then applied to the Court under the ADJR Act for review of the Commission's decision; and the case was heard by Davies J. who set aside the Commission's decision: (1991) 46 FCR 191. The Commission, constituted by its President, reconsidered the matter and again found that the complaint was substantiated. Pursuant to s. 81(1)(b) of the Act, the Commission made the following determinations: . the Commonwealth had engaged in conduct rendered unlawful by the Act and it should not repeat or continue such unlawful conduct; and . as soon as possible, the Commonwealth should re-appraise the application made by Mr Dopking in the light of the Commission's findings, and make an appropriate payment to him to compensate him for the financial disadvantage he had suffered as a result of the Commonwealth's unlawful act. Again, the Commonwealth applied to the Court under the ADJR Act for review of these determinations. The proceeding was heard by a Full Court of the Court (Black CJ, Lockhart and Wilcox JJ.), and reported as Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191. At all material times Mr Dopking was single with no dependants. In November 1988, he was posted by the Royal Australian Air Force to Townsville where he took up residence in accommodation provided for him by the Defence Force at the RAAF base. In December 1988 he purchased and moved into a house in Townsville. In January 1989, he applied to the Department of Defence for reimbursement of costs associated with the purchase of the house, the application being for what is described as a 'Home Purchase or Sale Expenses Allowance' ('HPSEA'), which is an allowance provided to certain members of the Defence Force pursuant to what is known as Determination 0509 ('the Determination'). The application was rejected pursuant to clause 17 of the Determination, on the ground that Mr Dopking was a 'Member without Family'. The Determination was made pursuant to s. 58B of the Defence Act 1903, which empowers the responsible Minister, by instrument in writing, to make Determinations not inconsistent with the Defence Act, providing for and in relation to, inter alia, the payment of allowances or other pecuniary benefits, not being allowances or benefits by way of remuneration, to or in respect of members of the Defence Force (s. 58B(1)(b)). The particular purpose of HPSEA, as created by the Determination, is to assist certain members of the Defence Force to purchase or sell a home when that occurs as a consequence of a posting from one locality to another within Australia. The allowance covers a solicitor's costs and disbursements, an estate agent's commission, advertising costs, stamp duty, other government fees, and housing loan insurance. The material provisions of the Determination are as follows:- '2. In this Determination, unless the contrary intention appears - ... "family", in relation to a member, means one or more of the following persons who normally reside with the member: (a) the spouse of the member; (b) a child; (c) where the member is widowed, unmarried or permanently separated, or where the member's spouse is invalided - a person acting as a guardian or housekeeper to a child; (d) any other person approved by an approving authority ... "member with a family" means a member with whom one or more of the members of his or her family normally reside; "member without a family" means a member other than a member with a family; ... 7. The approving authority shall, in respect of an approval under - (a) clause 2, have regard to - (i) the financial position of the person; (ii) the degree of illness or infirmity of the person; (iii) the degree of dependency of the person on the member; (iv) the role that the person plays in the member's household; and (v) the relationship of the person to the member; ... 16. Where, in respect of a posting for long term duty, a member with a family - (a) is not accompanied by his or her family on that posting for reasons other than Service reasons and his or her family remain in the locality to which the member was granted a removal in respect of his or her previous posting; or (b) is not accompanied by his or her family on that posting and the member is granted a removal to a locality, the member is not entitled to an allowance in respect of the purchase of a dwelling in that locality. 17. An allowance is not payable to a member without a family in respect of the purchase of a dwelling unless Service accommodation is not available and is unlikely to be available in the immediate future in the locality. ... 20. An allowance is not payable to a member without a family in respect of the sale of a dwelling unless, at the time the dwelling was purchased, Service accommodation in the locality was not available to the member.'

The question to be decided is whether the Determination breaches the Act, particularly, by distinguishing between members with and without a family. The Act prohibits discrimination of various kinds, including discrimination on the ground of 'marital status'. See s. 3 which states that one object of the Act is: '(b)to eliminate, so far as possible, discrimination against persons on the ground of ... marital status ... in the areas of work, accommodation, ...'

The expression 'marital status' is defined in the interpretation section, s. 4, as meaning: 'The status or condition of being: (a) single; (b) married; (c) married but living separately and apart from one's spouse; (d) divorced; (e) widowed; or (f) the de facto spouse of another person;'

Section 14(2) provides, so far as is relevant:- '14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's ... marital status ...: (a) in the terms or conditions of employment that the employer affords the employee; (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment.' Section 6 provides: '6(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if, by reason of: (a) the marital status of the aggrieved person; (b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status. (2) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons not of the same marital status as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply.'

In the earlier proceeding, it was held by Lockhart and Wilcox JJ. (Black C.J. dissenting) that s. 6(1) of the Act requires the relevant comparison to be made between Mr Dopking, as a person with the characteristic mentioned in para. (b) or (c) of subsection (1), and 'a person of different marital status'. It was held that it was not the marital status of the person who was treated more favourably that determined the more favourable treatment, but the fact that, whatever that person's marital status was, he or she had one or more 'family' members normally residing with him or her who, in fact, accompanied the member to the new posting. The Court set aside the decision of the Commission, declaring that the Commonwealth had engaged in conduct rendered unlawful by the Act, and remitted the matter to the Commission for consideration of the alternative case presented by Mr Dopking in relation to s. 6(2) of the Act. The Commission subsequently reconsidered the matter to determine whether or not the operation of the scheme, as it affected Mr Dopking, constituted unlawful discrimination on the ground of marital status under s. 6(2) of the Act - so‑called indirect discrimination. The primary issue before the Commission was whether, having regard to the circumstances of Mr Dopking's case, the condition with which he was required to comply, namely, that he be a member with a family, was not reasonable. The Commonwealth adduced evidence before the Tribunal to explain this condition, and the underlying distinction which the Determination makes between a 'member with a family' and a 'member without a family'. The Commission said that the Commonwealth advanced two arguments in support of the reasonableness of the distinction. First, the Commonwealth submitted that the needs and the expectations of the two categories of member are different. On the one hand, the Commonwealth underlined the fact that a member with a family needs a larger living space than a member without a family, and that it must be self-contained to provide adequate privacy. Further, the Commonwealth pointed out that it is expected that a member with a family be given the opportunity to live with his or her family. But on the other hand, according to the Commonwealth, a single member's needs are different. Accordingly, they are met in a different, yet appropriate way, not only by the provision of on-base accommodation, but by a total subsidized package which includes food, utilities and laundry, all in return for a nominal contribution in 1989 terms of $55 per week. In spite of this reasoning, Mr Dopking testified before the Commission that he did not wish to accept what he called the cramped and regimented lifestyle which the applicant's package necessarily imposed upon a member without a family. In the Commission's words: 'He prefers to occupy a home of his own because it gives him more room and greater comfort than the single room provided on‑base. He likes to think that the bed on which he sleeps belongs to him and that if he chooses to have a pet, he may do so.'

This particular passage in the reasons for decision of the Commission was said by counsel for the Commonwealth to be irrelevant to any issue in the proceeding. Nevertheless, the Commission rejected the Commonwealth's first argument for reasonableness. It considered that it was not for the Commonwealth unilaterally to determine the kind of lifestyle that will best meet its members' needs. The Commission said: 'In my opinion, the complainant gave a plausible set of reasons for preferring to occupy a home of his own off-base rather than accept the subsidized package thought by the respondent to meet his needs. It is immaterial whether or not his views are representative of the majority of members without a family. It cannot be said that they are irrational or undeserving of respect.' And the Commission found that s. 6(2), and the concept of indirect discrimination: 'necessarily import a conclusion of less favourable treatment if it be found that the discriminator unreasonably requires a person to comply with a condition with which he or she is unable to comply while a substantially higher proportion of persons of a different marital status are able to comply with it. I do not think it appropriate to consider the question of less favourable treatment as a separate issue when dealing with indirect discrimination under s. 6(2) of the Act. In any event, I stress again the relevance of the reasonable subjective judgement of the person aggrieved in determining any question of less favourable treatment.'

Once more, counsel for the Commonwealth submitted that these observations of the Commission were irrelevant. The second submission by the Commonwealth to the Commission, with respect to the reasonableness of the distinction drawn by the Determination, was that the requirement that the complainant be a member with a family, if he is to qualify for the allowance, is reasonable when Defence Force resources are taken into account. The Commission examined the relevance of resource implications to the reasonableness of the condition, and said: 'I remind myself that one of the objects of the Act is to eliminate, so far as is possible, discrimination between persons on the ground of their marital status.'

Then the Commission noted that one consideration in support of the Determination is the incentive it provides to members with a family to provide their own accommodation off-base, and thereby relieve the Commonwealth of the obligation to provide that accommodation. And the Commission recognized as true that if the allowance were to be made available to members without a family, there would probably not be the same prospect of savings to the Commonwealth, because there is no shortage of single barracks accommodation. Notwithstanding this, the Commission said that to make the allowance available to all members without distinction would still not be likely to result in a significant increase in expenditure for the Commonwealth. The Commission observed: 'Over time, given a significant number of members without a family taking advantage of the scheme, the respondent [the applicant] would no doubt seek to increase the proportion of single accommodation off-base, so as to enable a greater flexibility in handling fluctuating demand.'

The conclusion of the Commission is expressed in the following paragraphs: 'After careful consideration of all the circumstances I have come to the conclusion that, in a case where there is ADF accommodation available to a member without a family, the requirement or condition imposed on the complainant's eligibility for the allowance, namely, that he be a member with a family, being a requirement or a condition with which he is unable to comply but with which a substantially higher proportion of persons of a different marital status to that of the complainant are able to comply, is not reasonable having regard to the circumstances of the case. In coming to this conclusion I have weighed the possibly adverse implications of my decision against the fundamental importance of preserving, so far as is reasonably possible, the same freedom of choice for members without a family as is presently available to members with a family. The imperatives of equality must not be allowed to give way too readily to the demands of expediency. I therefore find the complaint to be substantiated.' And the Commission determined as follows: '(a)I declare that the respondent has engaged in conduct rendered unlawful by the Act and should not continue such unlawful conduct. (b) I declare that the respondent should act on the complainant's application for the allowance by paying to him the same amount as that to which he would have been entitled if he had been a member with a family. (c) I declare that the respondent should pay to the complainant damages, by way of compensation for the injuries to his feelings occasioned by the unlawful conduct, in the sum of two thousand dollars ($2,000.00).' Subsequently, the Commission lodged its determination in a Registry of this Court pursuant to s. 82A of the Act. The determination was subsequently registered. It was conceded before this Court, by both respondents, that the Commission should not have lodged its determination under s. 82A of the Act, and that it should not have been registered. The Commonwealth no longer presses its claim in this Court that it was denied natural justice by the Commission in relation to the order that it pay $2,000 compensation to Mr Dopking for the injuries to his feelings occasioned by the unlawful conduct found by the Tribunal. The principal question argued before us was whether the Commission's decision, that, in breach of ss. 6(2) of the Act, the Commonwealth had unlawfully engaged in indirect discrimination on the ground of marital status, should be set aside for error of law. There was no dispute between the parties over the criteria specified in paras. 6(2)(a) and (c). Hence, the specific issue is whether the imposition of a requirement that, to qualify for HPSEA under the Determination, a member had either to be accompanied by a family, or to satisfy the test of non-availability of service accommodation in clause 17 of the Determination, was not reasonable having regard to the circumstances of the case. Counsel for the Commonwealth submitted that the Commission, in answering this question, misconstrued s. 6(2) of the Act, and in particular the criterion for indirect discrimination that the relevant requirement or condition 'is not reasonable having regard to the circumstances of the case'. It was argued that the Commission applied this criterion as if it, and, therefore, the relevant circumstances, were limited or influenced by some general or dominant concept of discrimination existing independently of s. 6(2). This finding of the Commission was said to depart from the principles established by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 when considering the relevant provisions of the Victorian Equal Opportunity Act 1984, legislation said to be analogous to the Act. It was submitted that a second illustration of the Commission's error in approaching the construction of s. 6(2) of the Act was that it was influenced by consideration of the criteria in s. 6(1) of the Act, as demonstrated in certain of the reasons of the Commission where it referred to the earlier decision of the Full Court in this matter - a decision concerned only with s. 6(1). It was also submitted by counsel for the Commonwealth that the Commission fell into error in failing to adopt an objective approach to the criterion of reasonableness in s. 6(2)(b) of the Act, contrary to the principles established by the Full Court of this Court in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, which was approved by the High Court in Waters. It was submitted that the Commission did not deal objectively with the nature and effect of the alleged discrimination. Instead, it adopted reasoning referable only to s. 6(1) of the Act, treating Mr Dopking's subjective assessment of the relative worth of different living conditions as both determinative of the nature and the effect of the alleged discriminatory treatment, and sufficient to outweigh the reasons given by the Commonwealth based on resource implications; thus rendering the requirement not reasonable within s. 6(2)(b). It was said that this subjective approach to the criterion in s. 6(2)(b) of the Act necessarily led to an erroneous application of the statutory test, as the Tribunal failed to consider all the relevant circumstances of the case. This submission was amplified in various respects, which it is unnecessary to recite. Also, it was submitted by counsel for the Commonwealth that the Tribunal fell into a further error of law - addressing the wrong question. The wrong question was said to be whether the Commonwealth discriminated against Mr Dopking as a member without a family by requiring him to live in barrack‑style accommodation on-base, whilst a member with a family would be provided with a self-contained home of his or her own. It was argued that this was not the right question because it never was Mr Dopking's case, and there was no evidence to the effect, that he was prevented or inhibited from deciding to purchase his home off-base by reason of his failure to obtain HPSEA. The issue in the case was whether it was unreasonable for the appellant to decide that, in circumstances where service accommodation was available to Mr Dopking as a member without a family, it would not, by the grant of a further benefit in the form of HPSEA, subsidize his choice of a lifestyle involving the purchase of a home of his own off-base, in preference to the package of entitlements comprised in the service accommodation provided. In the alternative, it was submitted by the Commonwealth that even if the Commission did address the correct question, its reasons still do not provide any justification for the Commission's conclusion that the relevant conditions were unreasonable. Counsel for the Commission generally joined issue with the submissions of counsel for the Commonwealth. Counsel for Mr Dopking supported the submissions of counsel for the Commission. I turn to the question whether the Commission erred in finding that the condition of the Determination, which required that a member had either to be accompanied by family or to satisfy the test of non-availability of service accommodation in clause 17 of the Determination in order to qualify for HPSEA under the Determination, was not reasonable having regard to the circumstances of the case. The test of reasonableness was stated by Bowen C.J. and Gummow J. in Styles at 263 in the following terms: '[T]he test of reasonableness is less demanding that one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.'

That formulation of the test was approved in Waters by Dawson and Toohey JJ. at 395-6 (with whose reasons Mason C.J. and Gaudron J. agreed at 365), by Brennan J. at 378, and by Deane J. at 383. McHugh J. did not deal with the appropriate test, except to say at 410 that the word 'reasonable' should be given its ordinary meaning. Application of this test in the present matter, according to s. 6(2) of the Act, required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s. 6(2) of the Act can be reached only where the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable. An examination of the Commission's reasons shows that, essentially, the Commission was of the view that the condition did discriminate between members of the Defence Force with a family and those without a family, and therefore, that it was unreasonable. I accept the argument of counsel for the Commonwealth that the Commission's reasoning was based on the presumption that any difference of treatment between a member of the Australian Defence Force with a family and a member without a family was prima facie discriminatory, and therefore unreasonable, irrespective of any material differences in the needs and circumstances of each category of member. Also, the Commission did place great weight upon the subjective preference of Mr Dopking for living off-base in assessing the nature, extent and effect of the alleged discriminating treatment. Now the views of Mr Dopking may be relevant in determining objectively the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts. In assessing the nature and extent of any difference in treatment between a member without a family and a member with a family, it is relevant to take into account the package of entitlements with which each category of member was provided. A member with a family was provided with a particular benefit, namely, HPSEA, in circumstances where it was not made available to a member without a family; on the other hand, a member with a family was not given the accommodation entitlements which were provided to a member without a family, and in particular was not entitled to receive any benefits if the member with a family owned a suitable home in the locality to which he or she had been posted. It is important to remember that the condition with which this case is concerned is but one element in a carefully tuned package of rights, privileges and benefits available to members of the Defence Force. Care must be taken in considering whether to strike down one element of the package, as this may have ramifications for other elements. This is not to say that in the appropriate case an offending element should not be struck down. Of course, it should. But we must not lose sight of the fact that the whole of the relevant package must be considered when reviewing the legality, or otherwise, of a part. The Australian Defence Force perceived that the needs, expectations and personal circumstances of the two categories of members of the Force (members with a family and members without a family) were materially different, so that it was appropriate to provide for them differently. The resulting differences in their accommodation entitlements were based on the perceived fundamental differences between the two categories of member: primarily, the need and the expectation of a member with a family that he or she should be able to live with his or her family in self-contained accommodation, as distinct from the absence of that need and expectation in the case of a member without a family. In any case, the Commonwealth did not require members without a family, including Mr Dopking, to live in barrack-style accommodation on-base. A member without a family could live on-base or off-base as he or she chose; but if the choice was in favour of the latter then HPSEA was not available. In that event, the member would not receive the benefit or the allowance covering a solicitor's costs and disbursements, an estate agent's commission, advertising costs, stamp duty, other government fees, and housing loan insurance. Mr Dopking was a member who chose to purchase a dwelling off-base, and there is no evidence to suggest that he was prevented or inhibited from doing so by reason of his inability to qualify for the HPSEA. In my opinion, the Commission did not consider all the relevant circumstances of this case, in particular, the matters to which reference has just been made. Nor did it make findings about the nature, extent and effect of the alleged discriminatory treatment, an exercise which it was required to do in accordance with Styles and Waters. Taking all these matters into account, in my view it was impermissible for the Commission to find that the condition the subject of the challenge in the present proceeding was unreasonable. It was not unreasonable for the Commonwealth to decide that, in circumstances where on-base accommodation was available to Mr Dopking as a member without a family, it would not, by granting him a further benefit in the form of HPSEA, subsidize the choice of lifestyle made by him and involving the purchase of a home of his own off-base, in preference to the package of entitlements comprised in the service accommodation on-base. Views in the community will differ about whether people generally like or approve of the condition; but it is a quite different question to say that the condition is not reasonable having regard to the circumstances of the case. In my opinion the Commission erred in reaching the conclusion which it did. In conclusion, it is necessary to say something about the role played by the Commission in this proceeding before the Court. The Commission appeared by its counsel and solicitor, and argued the case before us as an adversarial party. Mr Dopking did likewise. There can be no doubt that Mr Dopking was entitled to take the course which he did; but there is doubt about whether the Commission was entitled to pursue the course which it did. In The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ.) made the following observations at 35-36 about the role adopted by the Australian Broadcasting Tribunal in that matter: 'There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a Tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.' In BTR PLC v Westinghouse Brake and Signal Company (Australia) Limited (1992) 34 FCR 246, Lockhart and Hill JJ. commented at 265 on the role adopted in that proceeding by the Australian Securities Commission: 'Counsel for the Commission, properly in our view, advanced arguments relating to this Court's jurisdiction and powers in cases of this kind, construction of certain sections of the Law and the powers of the Commission under sections of the Law with which this case is concerned. The Court expressed the view to counsel for the Commission that, where proceedings under the [Corporations] Law involve issues of a purely commercial nature and where the other parties are well able properly to adduce evidence and make submissions on all relevant facts to the court, the Commission should not assume the role of an active party and present substantive arguments with respect to those issues. The position is different where a commercial issue arises but is not fully or properly canvassed by the other parties. The position is also different where cases raise issues of national significance, questions of construction of the Law or the procedures the Commission should follow under the Law. Plainly the Commission has a vital role to play with respect to those questions.' No issue arises in this case concerning the jurisdiction, powers or procedures of the Commission. The interpretation of s. 6(2) of the Act, and the application of that section, and of the Determination itself, is what this matter is about. Furthermore, Mr Dopking was represented by counsel and solicitors in the earlier case before the Court, as well as in the present case, although he appeared in person before the Commission on both occasions; so there is no reason to believe an issue, or issues, have not been fully or properly canvassed. It is the case that the Commission's role in curial proceedings is recognized by s. 31(j) of the Human Rights and Equal Opportunity Commission Act 1986, which empowers the Commission, where it considers it appropriate to do so, with the leave of the Court hearing the proceeding and subject to any conditions imposed by the Court, to intervene in proceedings that involve discrimination issues. To similar effect is s. 48(1)(gb) of the Act. Here, quite apart from these statutory provisions, the Commission was joined as a respondent; so it appeared as of right. Accordingly, the statutory provisions have no direct application; but nevertheless, they shed some light on the extent of the role which the Parliament perceived as appropriate for the Commission. In my opinion, the adversarial role adopted by the Commission before the Court in the present matter is not one to be encouraged. Counsel for the Commonwealth stated that, if successful, it did not seek an order for costs against Mr Dopking. I would make the following orders:

1. That the decision of the Commission dated 25 January 1995 be set aside. 2. That the registration of the Commission's decision dated 25 January 1995 under s. 82A of the Sex Discrimination Act 1984 be set aside. 3. That the Commission pay the costs of the Commonwealth of this proceeding; and otherwise there be no order as to costs. I certify that this and the preceding twenty-five (25) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart. Associate Dated: 21 December 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G103 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent

MICHAEL DOPKING Second Respondent CORAM: Lockhart, Sheppard and Lindgren JJ PLACE: Sydney DATE: 21 December 1995 REASONS FOR JUDGMENT

SHEPPARD J: In this matter I have had the advantage of reading the judgments to be delivered by Lockhart and Lindgren JJ. I agree with their conclusions and with the orders they propose. I am in general agreement with their reasons. There are two matters with which I wish to deal. The legislative provision which is at the heart of the case is para. 6(2)(b) of the Sex Discrimination Act 1984. Subsection 6(2) is as follows: "For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the marital status of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons not of the same marital status as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." Except in one respect, it is common ground that the case falls within the subsection. The contest between the parties is whether the subject determination required Mr Dopking to comply with a requirement or condition which was not reasonable having regard to the circumstances of the case. The test is an objective one. I refer to Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 and to Waters v Public Transport Corporation (1991) 173 CLR 349 discussed in the other judgments. To me the critical question is whether it was open to the Commission in the light of the totality of the material before it to conclude that the determination was not reasonable. The determination does not require unmarried members of the Defence Force to live in accommodation on the bases at which they are stationed. Usually, as was the case with Mr Dopking, they are entitled to live in off base accommodation. The disadvantage which unmarried members suffer is that they are not entitled to the benefit of the financial assistance in acquiring off base accommodation for which the determination provides. That is the distinction which the determination draws. The Commission's decision involves the proposition that it is necessarily unreasonable for the determination to do this. The approach of the Commonwealth is summarised in the other judgments and I do not repeat it. Broadly speaking, it is said that the distinction is reasonable because the needs and the community expectations of the two categories of person are different. It may be expected that members with a family be given the opportunity to live with their families with the consequence that a larger living area is needed. Added to this are what are described as "resource implications". The Commonwealth referred to "the accommodation infrastructure" in place in Townsville which gives the Commonwealth the capacity to house a large number of members without a family on the base. It was economically desirable that this facility be used to the fullest extent possible. None of this involves the proposition that it is unreasonable for an unmarried person to wish to live away from the base in private accommodation. What is involved is the question whether the determination unreasonably discriminates against an unmarried member because it denies to such a member the provision of the financial assistance for which the determination provides. Because married members are treated differently, it may be said to be discriminatory in this sense. That is why there is no contest between the parties that the case is within paras 6(2)(a) and (c) of the Act. But then comes the question of reasonableness. The subsection will not apply if it is reasonable in all the circumstances to discriminate in the way that this determination does. In my opinion the requirement is plainly reasonable within the meaning of the subsection. That is not a subjective view of my own. Rather, it is an acknowledgment of the power of those responsible for the determination to determine, upon reasonable grounds, the category or categories of members of the Defence Force who are to be entitled to the benefits provided for in the determination. The basis for the discrimination which results from its application only to married members is, in the circumstances of the case, within the bounds of objective reasonableness. In other words the point of distinction which has been adopted has a logical and understandable basis. There may have been other ways of approaching the problem; views may differ about the matter. But, in my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the determination. With respect, I do not consider any other view to be open. I am thus unable to see how it can be said that the adoption of the policy to which the determination gives effect is unreasonable having regard to the relevant circumstances. It follows that I am unable to find in the determination, applying as it did only for the benefit of married personnel, the objective unreasonableness which must exist before subsec. 6(2) can apply. The facts of the matter are not in dispute. They are, in the language of some of the authorities, "fully found"; see Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 per Fullagar J at 51 and Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 7. The matter does not involve a question of fact. In my opinion it is a case in which the Commission, on the material before it, was bound to conclude that the requirement or condition in question before it was not unreasonable having regard to all the relevant circumstances. The other matter I wish to mention concerns the Commission's participation in these proceedings. I wish to indicate my entire agreement with what Lockhart J has said about that matter. I agree in the orders proposed by the other members of the Court.

I certify that this and the four (4) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard. Associate

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 103 of 1995 GENERAL DIVISION ) ON APPEAL FROM THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

BETWEEN: COMMONWEALTH OF AUSTRALIA Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent AND: MICHAEL DOPKING Second Respondent CORAM: Lockhart, Sheppard and Lindgren JJ PLACE: Sydney DATE: 21 December 1995 REASONS FOR JUDGMENT LINDGREN J: NATURE OF PROCEEDINGS The applicant applies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for review of a decision of the first respondent ("the Commission"). That decision was made on a complaint to the Commission by the second respondent ("Mr Dopking"), a member of the Australian Defence Force ("ADF"), that the Commonwealth had, in contravention of the Sex Discrimination Act 1984 (Cth) ("the Act"), discriminated against him on the ground of his marital status as a single person. The complaint was in respect of the implementation of Determination 0509 dated 23 June 1982 as amended made under s 58B of the Defence Act 1903 (Cth), headed "DWELLING PURCHASE OR SALE EXPENSES ALLOWANCE" but more commonly referred to as the "HOME PURCHASE OR SALE EXPENSES ALLOWANCE" ("HPSEA") ("the Determination"). The Commission's decision dated 25 January 1995 the subject of the present application was expressed as follows: "1. I declare that the [Commonwealth] has engaged in conduct rendered unlawful by the Sex Discrimination Act 1984 (Cth) and should not continue such unlawful conduct. 2. I declare that the [Commonwealth] should act on [Mr Dopking's] application for the Home Purchase or Sale Expenses Allowance by paying to him the same amount as that to which he would have been entitled to had he been a member with a family. 3. I declare that the [Commonwealth] should pay to [Mr Dopking] damages, by way of compensation for the injuries to his feelings occasioned by the unlawful conduct, in the sum of two thousand dollars ($2,000.00)." BACKGROUND In November 1988 Mr Dopking was posted by the Royal Australian Air Force to Townsville, Queensland. He initially took up accommodation in barracks on-base but the following month he purchased and moved into a house in Townsville. In January 1989 he applied under the Determination for financial assistance towards the relocation expenses which he had incurred. The Determination is directed to assisting eligible members of the ADF ("members") who purchase or sell a dwelling as a consequence of their being posted from one locality to another in Australia. The Determination entitles members to recover certain expenses incurred in connection with the purchase or sale of a dwelling. Examples of the expenses are a solicitor's fees and disbursements in respect of a purchase and, where the dwelling purchased is mortgaged for the purpose, in connection with the mortgage (including mortgagee's solicitor's fees and disbursements where the member is required to pay and has paid these), agent's commission and stamp duty. The Determination fixes certain upper limits on the amount of the allowance payable. The allowance is not payable to a "member without a family" where "service accommodation" is available in the locality. The ADF informed Mr Dopking that he was not entitled to the allowance because he was a member without a family and such service accommodation was available. Mr Dopking complained to the Commission under s 50 of the Act that in so deciding, the Commonwealth as his employer had unlawfully discriminated against him on the ground of his marital status in contravention of s 14 of the Act. On 14 May 1991, pursuant to para 81 (1) (b) of the Act, the Commission found the complaint substantiated and made declarations in Mr Dopking's favour. The Commonwealth applied to the Court under the ADJR Act for an order of review of the Commission's decision. That application was heard by Davies J. On 22 November 1991 his Honour set aside that decision ((1991) 32 FCR 468). The matter was remitted to the Commission. On or about 13 March 1992 the Commission made declarations in favour of Mr Dopking. Again the Commonwealth applied for an order of review of that decision. The application was heard by a Full Court pursuant to a direction of the Chief Justice made under sub-s 20 (1A) of the Federal Court of Australia Act 1976 (Cth) ((1993) 46 FCR 191). Although Mr Dopking had relied on both "direct discrimination" (see sub-s 6 (1) of the Act quoted below) and "indirect discrimination" (see sub-s 6 (2) of the Act quoted below) before the Commission, only the former had been dealt with by it. The Court made orders setting aside the decision of the Commission and remitting the matter to it for consideration of Mr Dopking's alternative case of indirect discrimination based on sub-s 6 (2) of the Act. It is the Commission's consideration of that case which is the subject of its decision dated 25 January 1995 favourable to Mr Dopking in respect which the Commonwealth makes the present application. Again, the application has been heard by a Full Court pursuant to a direction of the Chief Justice made under sub-s 20 (1A) of the Federal Court of Australia Act 1976 (Cth). The Commonwealth's application under the AD(JR) Act In its application for an order of review under the AD(JR) Act filed on 21 February 1995, the grounds of the application were identified as follows: "1. The Commission erred in its interpretation of s 6 (2) (b) Sex Discrimination Act 1984. 2. The Commission failed to afford natural justice to the applicant. 3. The Commission erred in law by registering its decision under the provisions of s 82A Sex Discrimination Act 1984."

In that application the Commonwealth claimed an order setting aside the Commission's decision, an order setting aside registration of that decision under s 82A of the Act and an order for costs. Ground 2 above was to the effect that the Commission had failed to afford natural justice to the Commonwealth in connection with its order (noted earlier) that the Commonwealth should pay to Mr Dopking damages by way of compensation for the injuries to his feelings occasioned by the unlawful conduct, in the sum of $2,000. Before us the Commonwealth did not press this ground. In relation to the registration of the Commission's decision under s 82A of the Act, both the Commission and Mr Dopking conceded that the Commission should not have lodged its decision for registration. It follows that the second order claimed by the Commonwealth will be made. On the hearing, pursuant to leave, the Commonwealth filed an amended application for an order of review. This document substantially elaborated upon Ground 1 in ways which are generally reflected in the Commonwealth's submissions noted below. Consistently with what I have said above, Ground 2 was omitted. The relief sought in the amended application is as follows: "1. An order setting aside the decision of the Commission dated 25 January 1995. 2. An order setting aside the registration of the decision under s.82A of the Act. 3. An order that it be declared that the applicant has not engaged in conduct rendered unlawful by ss.6(2) and 14 of the Act. 4. Alternatively, an order that the matter be remitted to the first respondent, differently constituted, for further consideration according to law. 5. Costs." THE HPSEA DETERMINATION It is common ground that the Commonwealth's refusal of Mr Dopking's application for the allowance was required by the terms of the Determination. Accordingly, attention is directed immediately to that instrument. Clauses 8 and 9 of the Determination are as follows: "8. An allowance in respect of the purchase of a dwelling is payable in accordance with the provisions of this Determination to a member without a family who - (a) is posted for long term duty in Australia; (b) incurs costs in respect of the purchase of a dwelling in the locality of that posting; and (c) normally resides in that dwelling. 9. An allowance in respect of the purchase of a dwelling is payable in accordance with the provisions of this Determination to a member with a family where - (a) the member is posted for long term duty in Australia; (b) the member is granted a removal; (c) an eligible person, in relation to the member, incurs costs in respect of the purchase of a dwelling in the locality of that posting; and (d) the member normally resides in that dwelling with one or more members of his or her family."

But in the case of the entitlement of a member without a family provided for in cl 8, the entitlement is qualified by cl 17 which is as follows: "An allowance is not payable to a member without a family in respect of the purchase of a dwelling unless Service accommodation is not available and is unlikely to be available in the immediate future in the locality." It is common ground that Mr Dopking was a member without a family and that service accommodation was available in the locality. The service accommodation which was available to him took the form of barracks accommodation on-base. The expressions "family", "member with a family", "member without a family" and "service accommodation" are defined in cl 2 of the Determination. Those definitions are as follows: "'family', in relation to a member, means one or more of the following persons who normally reside with the member: (a) the spouse of the member; (b) a child; (c) where the member is widowed, unmarried or permanently separated, or where the member's spouse is invalided - a person acting as a guardian or housekeeper to a child; (d) any other person approved by an approving authority; ... 'member with a family' means a member with whom one or more of the members of his or her family normally reside; 'member without a family' means a member other than a member with a family; 'Service accommodation' means accommodation owned or controlled by the Department of Defence at which meals and sleeping facilities are provided for a member without a family;" The word "locality" is also defined in cl 2 as meaning a certain area surrounding a member's normal place of duty not exceeding a specified travelling time or distance limit from that place. That definition is not presently relevant.

RELEVANT PROVISIONS OF THE ACT Section 14 of the Act deals with discrimination in employment. Sub-section 14 (2) provides, relevantly, as follows: "14(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's ... marital status ...; (a) in the terms or conditions of employment that the employer affords the employee; (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefits associated with employment; ..." The expression "marital status" is defined in sub-s 4 (1) as follows: "'marital status' means the status or condition of being: (a) single; (b) married; (c) married but living separately and apart from one's spouse; (d) divorced; (e) widowed; or (f) the de facto spouse of another person;"

The notion of what constitutes discrimination on the ground of marital status is the subject of s 6. Its two sub-sections have been referred to as dealing respectively with "direct discrimination" and "indirect discrimination". Section 6 is as follows: "6(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the marital status of the aggrieved person if, by reason of: (a) the marital status of the aggrieved person; (b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status. (2) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the marital status of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons not of the same marital status as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." REASONING OF THE COMMISSION The Commission noted that it was common ground that: "(a) Single barracks accommodation was available to [Mr Dopking] on his posting to Townsville; (b) He purchased a dwelling off-base and exercised the freedom of choice allowed to him to occupy that dwelling instead of the on-base accommodation; (c) He failed to qualify for the payment of the allowance because he was 'a member without a family' within the meaning of the determination; and (d) He would have qualified for payment of the allowance if, notwithstanding his single status, he had satisfied the definition of 'a member with a family' in the determination."

The Commission also noted that the Commonwealth did not contest (a) that Mr Dopking did not comply or was not able to comply with the condition of entitlement in the circumstances of availability of service accommodation in the locality, that a member be a member with a family, and (b) that a substantially higher proportion of married members than single members did comply or were able to comply with the condition of entitlement in those circumstances that a member be a member with a family. The critical factor which remained for Mr Dopking to establish was that, having regard to all the circumstances of the case, the condition of entitlement that he be a member with a family, was not reasonable (cf para 6 (2) (b) of the Act) quoted above. The Commission noted that "consistently with the evidentiary onus resting upon it, [the Commonwealth had] adduced evidence to explain the rationale for the distinction which the determination in this respect makes between a 'member with a family' and a 'member without a family'". In fact the Commonwealth advanced before the Commission two arguments in support of the reasonableness of the distinction, along the following lines: 1. The distinction is reasonable because the needs and the community expectations of the two categories are different in that it is expected that a member with a family be given the opportunity to live with that family and so he or she needs a larger living space than a member without a family, being a living space which is self contained so as to provide adequate privacy. According to the Commonwealth, a single member's needs are appropriately met, not only by the provision of on-base accommodation, but by a total subsidised package which includes food, utilities and laundry, all in return for a nominal contribution of $55 per week (in 1989 terms). But Mr Dopking testified that he did not wish to accept the cramped and regimented life style which the package entailed and that he preferred to occupy his own home because it gave him more room and comfort, allowed him to have a pet and permitted him to think that the bed on which he slept belonged to him. 2. The distinction is reasonable because of "resource implications". The Commonwealth referred to the accommodation infrastructure already in place in Townsville which gave the Commonwealth a capacity to house a large number of members without a family on-base; the economic desirability that this facility and fixed overheads, such as food and utilities at the base, be used to the fullest extent possible; the fact that the availability of the allowance to members with a family provided an incentive whereby the demand of such members for accommodation, whether on-base or off-base, would be eased, thereby relieving the Commonwealth of the cost of providing further married quarters; that only approximately 17% of the Commonwealth married quarters are on-base, the balance consisting of off-base accommodation owned or leased by the Commonwealth which can be acquired or disposed of readily, thereby enabling the supply to be adjusted to meet the demand; that in 1991 the average allowance payable under the Determination was between $3,000 and $4,000; and finally that there is a potentially recurrent character attaching to the scheme with every fresh posting of a member who wishes to acquire accommodation off-base. The Commission rejected the Commonwealth's first submission, saying that the relative worth of different physical living conditions is a subjective one best determined by the member. It said that Mr Dopking had given a plausible set of reasons for his preference, that it was immaterial whether his views were representative of the majority of members without a family, and that it sufficed that his views were not irrational or undeserving of respect. In relation to the Commonwealth's second submission, the resource implications submission, the Commission acknowledged that the issue was a complex and difficult one. After saying that it was sensitive to the Commonwealth's important and onerous responsibilities in relation to the efficient financial management of the ADF, the Commission said that there was nonetheless "ample evidence in the Act of the Parliament's intention to give the Act a paramount operation save where it expressly provides otherwise", and it referred to ss 26 and 40 of the Act. It also referred to the legislation's objective identified in para 3 (b) of the Act, "to eliminate, so far as is possible, discrimination against persons on the ground of ... marital status ...". The Commission found that to make the allowance available to all members without distinction would not be likely to result in a significant increase in expenditure for the Commonwealth. In particular, it described the allowance as a comparatively modest sum which was not likely to result in a marked shift of members without a family from barracks accommodation to private housing. Moreover, it noted that over time, given a significant number of members without a family taking advantage of the scheme, the Commonwealth would no doubt seek to increase the proportion of accommodation off-base for members without a family, so as to enable a greater flexibility in the handling of fluctuating demand. In summary, the Commission concluded that the condition was not reasonable having regard to all the circumstances of the case. It added, "In coming to this conclusion I have weighed the possibly adverse implications of my decision against the fundamental importance of preserving, so far as is reasonably possible, the same freedom of choice for members without a family as is presently available to members with a family. The imperatives of equality must not be allowed to give way too readily to the demands of expediency." OUTLINE OF PARTIES' SUBMISSIONS ON THE APPEAL Outline of Commonwealth's submissions on the appeal The Commonwealth submits that the Commission committed four errors of law: 1. It submits that the Commission dealt with the reasonableness requirement of para 6 (2) (b) of the Act as if it, and circumstances relevant to it, were "limited or influenced by some general or overarching concept of discrimination existing independently of s 6 (2) of the Act". The Commonwealth submits that to understand sub-s 6 (2) in that way is inconsistent with principles established by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters") in the context of a comparable provision in the Equal Opportunity Act 1984 (Vic). According to the submission, there is a relevant similarity between the treatment of "direct discrimination" in sub-s 6 (1) of the Act and sub-s 17 (1) of the Victorian Act, and between the treatment of "indirect discrimination" in sub-s 6 (2) of the Act and sub-s 17 (5) of the Victorian Act. The Commonwealth submits that Waters established that the two sub-sections are to be construed as being mutually exclusive, that the language of sub-s 6 (2) is to be construed and applied uninfluenced by sub-s 6 (1), and that the only discrimination which the Act prohibits is discrimination as defined by the Act, unreasonableness being an essential element of indirect discrimination as defined in sub-s 6 (2). The Commonwealth submits that the Commission approached its task inconsistently with these propositions. In support, the Commonwealth referred to the Commission's statement in response to its "resource implications" submission, that there must be taken into account Parliament's intention to give the Act "a paramount operation save where it expressly provides otherwise" and that "one of the objects of the Act is to eliminate, so far as is possible, discrimination between persons on the ground of their marital status." 2. The second alleged error identified by the Commonwealth, is that the Commission, inconsistently with principles established by the Full Court in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 (FC) ("Styles") at 263 (Bowen CJ and Gummow J) (approved by Dawson and Toohey JJ and Deane J in Waters, at 395-6 and 383 respectively), failed to adopt an objective approach to the criterion of reasonableness. The Commonwealth referred to the passage of the joint judgment of Bowen CJ and Gummow J in Styles at 263 quoted below. It complains that the President treated the subjective preference or assessment of Mr Dopking of the relative worth of different living conditions as determinative of the nature and effect of the alleged discriminatory treatment and as outweighing the reasons given by the Commonwealth based on resource implications so as to render the requirement not reasonable within para 6 (2) (b). 3. Thirdly, the Commonwealth submits that the Commission addressed the wrong question, as is revealed by its reference to Mr Dopking's distaste for the "regimented life style which the respondent's package necessarily imposes on a member without a family" and by its statement that it is not for the ADF "unilaterally to determine the kind of lifestyle that will best meet its members' needs." Again, the Commonwealth submits that the addressing of the wrong question is revealed by the paragraph from the Commission's conclusion quoted earlier. 4. Fourthly, the Commonwealth submits that there is no evidence to support the Commission's decision. It submits that if, contrary to (3) above, the Commission did address the correct question, its reasons do not provide any or any sufficient justification for the conclusion reached that the condition was unreasonable. The Commonwealth submits, in particular, that the Commission's reasons do not indicate how it was, in the light of its apparent acceptance of the economic justification given by the Commonwealth, that Mr Dopking had proved that the condition was unreasonable. Outline of Commission's submissions on the appeal 1. The Commission submits that while the Commonwealth's analysis of Waters is correct, its Reasons for Decision do not disclose the errors alleged. In particular, it submits that the Reasons do not show that the it construed the requirement of reasonableness in para 6 (2) (b) by reference to sub-s 6 (1) or to some overarching notion of discrimination originating elsewhere. The Commission submits that the alleged error is not demonstrated by any passage in the Commission's Reasons referred to by the Commonwealth. 2. The Commission contends that it did not fail to adopt an objective approach and that in reality the Commonwealth's submission in this respect is based solely on the rejection of the Commonwealth's argument founded on ADF perception and community expectations of the needs of a "member without a family". 3. The Commission says that the Commonwealth's argument is not so much that the Commission posed for itself the wrong legal question as that it mischaracterised the facts by treating the condition of entitlement as denying to Mr Dopking freedom to choose his own lifestyle. 4. The Commission submits that the "no evidence" submission is not supported; that the determination of the reasonableness question in the light of the evidence is a matter of degree; and that: "It was not a matter of weighing evidence of reasonableness against evidence of unreasonableness but of weighing the reasons advanced by the Commonwealth in favour of the condition against the nature and extent of its discriminatory effect."

The Commission submits that the Commonwealth's argument is really no more than an attack on the weight given by the Commission to the arguments put to it by the Commonwealth - a matter lying beyond the scope of judicial review (in this respect the Commission refers to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42-43 (Mason J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; and Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 (FC) at 234-5, 238 (Hill and Heerey JJ)).

Outline of Mr Dopking's submissions on the appeal Mr Dopking submits that the Commission weighed up all of the circumstances as required by Waters and that there was some evidence before it in favour of the unreasonableness of the condition. Mr Dopking draws attention to the opening words of sub-s 6 (2), "For the purposes of this Act", and submits that this is a reference to the objects of the Act as stated in s 3, and so indicates that the circumstances able to be considered under sub-s 6 (2) cover a wide range and vary from case to case. He submits that respect must be given to the specialised nature of the Commission's work and deliberations. Finally, Mr Dopking contends, contrary to the Commonwealth's submission, that the Commission did not find any one circumstance "determinative" of the reasonableness of the condition, did not consider the assessment of the issue of the housing of its staff as "irrelevant", and did consider the "package of benefits" received by Mr Dopking as against the benefits received by persons with a family.

REASONING ON THE APPEAL General propositions Certain general propositions may be noted at the outset. (1) Sub-section 6 (2) of the Act addresses in terms a situation in which "the discriminator requires the aggrieved person to comply with a requirement or condition." It was not contended that this language was inappropriate to embrace the Commonwealth's stipulation in the Determination as implemented in Mr Dopking's case, that Mr Dopking must be either a "member with a family" or, if a "member without a family", that service accommodation must not be available and must be unlikely to be available in the immediate future in the locality, in order for him to be entitled to the HPSEA; cf Styles at 257-258 (Bowen CJ and Gummow J) and Waters at 360-362 (Mason CJ and Gaudron J), 377-378 (Brennan J). (2) All three elements referred to in paras (a), (b) and (c) of sub-s 6 (2) had to be established by Mr Dopking before the Commission could conclude that the Commonwealth had discriminated against him: cf Styles at 256 (Bowen CJ and Gummow J). In particular, Mr Dopking had to establish that the requirement or condition was not reasonable having regard to all the circumstances of the case. (3) The test of reasonableness is less demanding than one of necessity but more demanding than one of convenience (Styles v Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408 (FCA/Wilcox J) at 429; and on appeal, Styles at 263 (Bowen CJ and Gummow J) quoted below). (4) The description by Bowen CJ and Gummow J of the test of reasonableness in Styles at 263 in the context of the comparable para 5 (2) (b) of the Act, was endorsed in Waters in the context of s 17 (5) (c) of the Equal Opportunity Act 1984 (Vic) at 395-396 by Dawson and Toohey JJ, and at 383 by Deane J (Brennan J's discussion of the criterion at 378 was generally similar). That description is as follows: "The criterion [of reasonableness] is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."

Clearly, the passage is applicable to para 6 (2) (b). (5) Paragraph 6 (2) (b)'s stipulation that the requirement or condition with which the discriminator requires the aggrieved person to comply must be "not reasonable having regard to the circumstances of the case", is to be applied according to its terms and free of any notion that indirect discrimination for the purposes of the Act prima facie exists. Rather, there is no indirect discrimination for the purposes of the Act unless unreasonableness exists. See Waters (the words "having regard to all the circumstances of the case" were not included in s 17 (5) (c) of the Equal Opportunity Act 1984 (Vic) but this does not create a material difference for present purposes) at 402, 408-411 esp at 409-410 (McHugh J), 394-396 (Dawson and Toohey JJ), 383-384 (Deane J), 378-380 (Brennan J); and see Mason CJ and Gaudron J at 365. The proceedings before the Commission The Commission had before it Points of Claim by Mr Dopking and the Commonwealth's Answer. The latter asserted that the difference in treatment as between members with a family and members without a family was "justified, both by reference to the resources and expectations of the [Commonwealth] and by reference to the needs and expectations of its different categories of members" (para 7 of Commonwealth's Answer). The Answer occupied 20 paragraphs extending over nine pages. The evidence relating to reasonableness was found in a 10-page statement (including three page Attachment "A") of Brigadier David Lindsay Howard Buring, the Director General Service Conditions in the Headquarters of the ADF, dated 21 March 1990 (which had been before the Commission on the first hearing). Brigadier Buring was not cross examined before the Commission. Brigadier Buring gave detailed evidence of the "ADF living assistance and removals/relocation assistance packages" available to members with a family and members without a family. In paras 23 and 24 of his statement, he summarised the packages as follows:

"Members Without Family (MWOF) Assistance Package .Service accommodation (barracks) - full board and accommodation for a concessional charge .complementary limited removal .complementary rate of Disturbance Allowance Alternative assistance package when Service accommodation cannot be provided .Living Out Allowance .Home Purchase or Sale Expenses Allowance .complementary full removal .complementary higher rate of Disturbance Allowance .Isolated Establishment Allowance Member with Family (MWF) Assistance Package .Service Accommodation (married quarter) at favourable rental rates if the member does not own a suitable home in the locality of posting and seeks assistance with housing. .Temporary Rental Allowance if a suitable married quarter cannot be provided .Home Purchase or Sale Expenses Allowance .Full removal .Disturbance Allowance .Isolated Establishment Allowance 24. The major areas of difference between the two assistance packages are the levels of subsidy. Members without family are subsidised for both food and accommodation as a basic entitlement, whereas members with family may be subsidised for accommodation only or receive assistance with home purchase under the Home Purchase or Sale Expenses Allowance scheme. For comparison purposes, a brief description and the rates of allowances for members without family and members with family as at March 1990 are set out at Attachment A."

Attachment A was complex. It was not analysed in the Commission's Reasons for Decision.

Was there an error of law? In my respectful opinion, the Commission did not determine the issue of reasonableness under para 6 (2) (b) of the Act in accordance with Waters. In conformity with that case, the Commission was called upon to determine whether the requirement or condition of entitlement to the HPSEA, namely that the applicant be a "member with a family" or, in the alternative, that service accommodation be not available and be unlikely to be available in the immediate future in the locality, was not a reasonable one having regard to all the circumstances of the case. Only if the condition was not reasonable, was there discrimination. The resolution of this question could not properly be affected by any notion of "prima facie discrimination" or by the Commonwealth's concession that paras (a) and (c) of sub-s 6 (2) were satisfied. A proper consideration of the issue posed by para (b) would demand a fresh and close consideration of such matters as (1) the respective needs of (a) a "member without a family" and (b) a "member with a family" "[who] normally resides in [the] dwelling with one or more members of his or her family" (cf definition of "family" in cl 2 and the entitling provision of cl 9 of the Determination); (2) the entirety of the respective "packages of benefits" which the Determination makes available to the two groups; and (3) the proportionality between (1) and (2) for the respective groups and the question of equivalence between the packages referred to in (2). The Commission did not approach the issue of reasonableness in this way. Rather, it assumed that the Act required that the different treatment in the Determination of "members with a family" and "members without a family" be regarded as discrimination which, in view of the Commonwealth's concessions in relation to paras 6 (2) (a) and (c), the Act rendered unlawful discrimination on the ground of marital status, unless the Commonwealth could justify that discrimination. The following passages in the Commission's Reasons for Decision reveal this error: "It was submitted by the respondent that I must view each of the packages provided to members with a family and members without a family respectively in their entirety and that if I do, I must conclude that one class of members is not treated less favourably then [sic] the other. I do not find the argument helpful. In my opinion, s.6(2) and the concept of indirect discrimination necessarily import a conclusion of less favourable treatment if it be found that the discriminator unreasonably requires a person to comply with a condition with which he or she is unable to comply while a substantially higher proportion of persons of a different marital status are able to comply with it. I do not think it appropriate to consider the question of less favourable treatment as a separate issue when dealing with indirect discrimination under s.6(2) of the Act. In any event, I stress again the relevance of the reasonable subjective judgment of the person aggrieved in determining any question of less favourable treatment." " ... there is ample evidence in the Act of the Parliament's intention to give the Act a paramount operation save where it expressly provides otherwise: cf. for example, s.26 and the legislative history of s.40. I remind myself that one of the objects of the Act is to eliminate, so far as is possible, discrimination between persons on the ground of their marital status." "In coming to this conclusion I have weighed the possibly adverse implications of my decision against the fundamental importance of preserving, so far as is reasonably possible, the same freedom of choice for members without a family as is presently available to members with a family. The imperatives of equality must not be allowed to give way too readily to the demands of expediency."

The first passage quoted above confuses the notion of "less favourable treatment" of an aggrieved person referred to in sub-s 6 (1) (see the discussion by Wilcox J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 (FC) at 211) with the notion of the unreasonableness of a requirement or condition to which para 6 (2) (b) refers. Any objective differences in the needs of "members with a family" and "members without a family" are matters properly to be taken into account under para 6 (2) (b) which requires that regard be had to all the circumstances of the case. The second and third passages quoted above occur in the context of the Commission's dealing with the Commonwealth's submission on resource implications. They also illustrate that the Commission construed para 6 (2) (b) as limited by a pervasive or overarching presumption of discrimination coming from a source outside the paragraph.

CONCLUSION For the foregoing reasons, there should be orders setting aside the Commission's decision dated 25 January 1995 and setting aside the registration of that decision under s 82A of the Act. The Commonwealth has indicated that if successful it would not seek an order for costs against Mr Dopking. The Commission should be ordered to pay the Commonwealth's costs.

I certify that this and the preceding 27 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 21 December 1995 Heard: 15 September 1995 Place: Sydney Decision: 21 December 1995 Appearances: Mr J S Hilton SC with Ms R M Henderson of counsel instructed by The Australian Government Solicitor appeared for the applicant. Mr S J Gageler of counsel instructed by Ian Clyde, solicitor, Human Rights & Equal Opportunity Commission, appeared for the first respondent. Mr M J Joseph SC of counsel instructed by Ryan Carlisle Thomas, solicitors, appeared for the second respondent.