Wright v Commissioner of Police

Background 7On 10 March 2014, Mr Wright entered into a shared parenting agreement with his former wife in relation to the two children of the marriage. The provision of relevance to this case is cl 4, which provided, relevantly: That the father spend time with the children as follows: (a) Each fourth weekend from Friday 3:25pm to 8:00pm Sunday. ... (c) In 2010 and each alternate year thereafter from 3:00pm Christmas Eve to 3:00pm Christmas Day. (d) In 2009 and each alternate year thereafter from 3:00pm Christmas Day and thereafter for three weeks of the school holidays. (e) One half of each school holidays to be determined by agreement. 8Mr Wright, like other officers, was bound by the leave entitlement provisions of the Police Regulation 2008 (NSW), the Crown Employees (Police Officers - 2009) Award and the Griffith Local Area Command Business Rules (Revised 1 July 2010). Under Reg 96, the Commissioner is responsible for dealing with leave applications, and is obliged in dealing with such applications to 'have regard to the exigencies of the NSW Police Force, but as far as practicable to deal with the application in accordance with the wishes of the member'. In their evidence, the Commissioner's delegates referred to two circumstances, in particular, that had influenced their decisions responding to the leave requests: the need to have at least one officer rostered on each day at Hillston; and the need to observe any general embargoes on leave as applied at certain times of year, such as Easter and Christmas-New Year. 9In relation to the refusal of the transfer application, the ultimate decision-maker (Superintendent Rowan) gave evidence that he refused the transfer application because Mr Wright was still subject to a tenure requirement in his position at Hillston, and it would have been difficult to replace him at Hillston. The Tribunal found that there was a further reason, and it related to Mr Wright's responsibilities as a carer. The Commissioner's challenge to this finding is considered more fully later in these reasons. 10The key provision in this case is s 49T which deals in sub-section (1) (a) with what has come to be known as direct discrimination, and in sub-section (1)(b) with what has come to be known as indirect discrimination. 49T What constitutes discrimination on the ground of a person's responsibilities as a carer (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. 11The Act also provides (s 4A) that If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 12The Tribunal dismissed Mr Wright's complaints of indirect discrimination. Mr Wright's appeal puts this order in issue. 13The Tribunal upheld Mr Wright's direct discrimination complaint and awarded him $5000 in damages. The Commissioner's appeal puts these orders in issue. 14In addition, as noted earlier, Mr Wright made two victimisation complaints, relating to formal disciplinary action taken by the Commissioner on two occasions after he absented him from duty in periods for which he had been refused leave. Section 50 is the applicable provision: 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 15He contended that the warnings were unlawful acts of victimisation for having lodged complaints, in breach of s 50 of the Act. The Tribunal dismissed the victimisation complaints. Mr Wright's appeal challenges the decision in relation to the first victimisation complaint, but not the second.

Scope of the Appeals 16The right to appeal is confined by the Civil and Administrative Tribunal Act 2013 to a 'question of law'. The appeal may, with the leave of the Appeal Panel, extend to 'other grounds': s 80(2)(b). 17Both appeals are confined to questions of leave. Mr Wright seeks an order that the Tribunal orders adverse to him be set aside (with the exception of the order relating to the second victimisation complaint, which, as noted above, is not appealed), and the Commissioner seeks an order that the order adverse to him be set aside and the complaint dismissed.

The Complaints that remain in issue 18It is convenient at this stage to set out the exact terms of the six complaints that remain in issue, the terms set out below being as agreed between the parties prior to the Tribunal hearing (the words in square brackets and italics are additions made by the Appeal Panel to assist understanding): (1)In late 2010/early 2011, Mr Wright applied to the Commissioner for leave and was granted leave for the first week of the 2011 first term school holidays [i.e.11-17 April, the school holiday period was 11-26 April]. The applicant had responsibilities for caring for his children from 18 April 2011 to 29 April 2011, but he could not apply for that period because he was told [there was] a leave embargo imposed only on the Griffith Local Area Command [which covered Hillston]. [In 2011 Good Friday fell on 22 April and Easter Monday on 25 April, with Anzac Day on Tuesday 26 April.] (2)Mr Wright applied for long service leave (referred to as 'extended leave') for the periods 18-21 April 2011 and 27-29 April (being those times he was rostered to work). The Commissioner refused the request for leave in respect of the first period. (3)In or about March/April 2011, Mr Wright applied to be transferred to a police station either at Yendon or Whitton in the Griffith Local Area Command and which are closer to Griffith than Hillston ('Transfer Application'). I have not been provided with any details of the reason for the [refusal of] transfer. (4)In or about early January 2011, Mr Wright applied to the Commissioner for rostered days off for 20-22 May 2011 inclusive so as to enable him to comply with the Parenting Agreement. Mr Wright was rostered to work on each of those days between 9.00am and 7.00pm. On 14 May 2011, Mr Wright applied to take long service leave on those days to meet his responsibilities as a carer. The Commissioner refused his application on 17 May 2011 - although it allowed leave on 20 May 2011 - thus requiring him to attend work on those days. (5)Based on same facts and matters - victimisation. (6)On 19 August 2011, Mr Wright attended Hillston Police Station and applied for recreation leave for the period from 26 December 2011 to 15 January 2012. He did so having been required to nominate 8 weeks during that year (but not beyond) which meant he already had leave approved for the last three weeks of December 2011. Mr Wright was responsible for the care of his children during the period relating to the later application (i.e. 26 December 2011 to 15 January 2012) pursuant to the terms of the Parenting Agreement. 19Mr Wright proceeded to absent himself from duty for the dates he was refused leave. That gave rise to the formal warnings that formed the background to complaint 5, and the background to the (no longer pressed) complaint 7.

Mr Wright's Appeal 20We will deal first with Mr Wright's appeal. 21As noted above, Mr Wright challenged the conduct the subject of complaints (1), (2), (4) and (6) as unlawful under s 49T(1)(b) because it involved indirect discrimination on the ground of his responsibilities as a carer. 22In his submissions at first instance, the Commissioner contended that Mr Wright was not a person with responsibilities as a carer within the meaning of s 49S of the ADA, and therefore was not protected by its provisions. The Tribunal found that he did fall within the meaning of a person with responsibilities as a carer, as he had responsibilities as a father in accordance with the parenting agreement and any other agreement he makes with his former wife, to care for and support his two children. This finding is not in contest in the appeal. 23As we refer to this provision in the ADA later in these reasons for another purpose we will set it out in full here. 49S Meaning of "responsibilities as a carer" (1) A reference in this Part to a person's responsibilities as a carer is a reference to the person's responsibilities to care for or support: (a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support, or (b) any child or adult who is in need of care or support and: (i) of whom the person is guardian, or (ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or (iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or (c) any immediate family member of the person who is in need of care or support, being one of the following: (i) a spouse or former spouse of the person or of a spouse or former spouse of the person, (ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person, (iii) a parent or step-parent of the person or of a spouse or former spouse of the person, (iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person, (v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person. (2) A reference in this Part to a person's responsibilities is a reference to responsibilities: (a) that the person has, or (b) that the person is thought to have (whether or not the person in fact has the responsibilities), or (c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or (d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities). (3) In this section: spouse of a person means: (a) the husband or wife of a person, or (b) the de facto partner of a person. Note. "De facto partner" is defined in section 21C of the Interpretation. step-child or step-grandchild of a person means: (a) a child or grandchild of the spouse or former spouse of the person, or (b) a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouse's former spouse). (4) A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person: (a) includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and (b) includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and (c) in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister. 24The complainant carries the onus of proof, and must establish each of four elements to the satisfaction of the Tribunal, i.e. (a) To identify with precision the 'requirement or condition' that has given rise to concern. (b) To demonstrate that the requirement gave rise to a disparate impact in that it was one with which a 'substantially higher proportion of persons who do not have such responsibilities' comply or are able to comply, (c) To demonstrate that the requirement was 'not reasonable having regard to the circumstances of the case' and (d) If so, to demonstrate that it was one 'which the aggrieved person does not or is not able to comply'. 25The Nature of the Requirement. In respect of (a), sometimes the requirement will be one that forms part of the understood relationship between the parties, as reflected for example in the terms of a contract or an award. Sometimes the requirement will be less visible and less recognised by the parties. 26In this case the Tribunal found at para [30] that the requirement was 'to attend work in accordance with the roster that is posted or current on a particular day', and that the duty to attend work as rostered was a term or condition of employment with the NSW Police Force (see [41]). The Tribunal found that the particular days for this purpose were 11 April 2011 (in the case of complaint (1)), 16 April (complaint (2)); 14 April 2011 and 14 May 2011 (complaint (4)); and 26 October 2011 (complaint (6)). These findings were not put in issue by the notice of appeal. 27The Tribunal's findings as to (b), (c) and (d) were negative to Mr Wright's case and are contested by the appeal, and it is said that in each instance the Tribunal committed errors of law. 28It will be apparent that for a complaint of indirect discrimination to succeed it must satisfy all four of the elements outlined at [21] above. This appeal must, therefore, fail if the appellant fails to succeed in relation to the Tribunal's decision as it relates to any one of the elements. 29The Tribunal summarised its conclusions as follows ([5]): We have decided that the complaints of indirect discrimination are not substantiated because the requirements that police officers attend work as rostered during various periods are not requirements which have a substantially disproportionate effect on people with carer's responsibilities. Even if they do, the Applicant is able to comply with those requirements and the requirements are "reasonable" in all the circumstances.

Whether Questions of Law Raised by the Appeal 30Counsel for the Commissioner submitted that, properly construed, the grounds of appeal relating to this aspect of the case did not raise any question of law. She submitted that the grounds were, in substance, criticisms of the fact-finding process of the Tribunal. She submitted that the appeal should therefore be declared incompetent and dismissed. 31We will not set out the text of Mr Wright's notice of appeal verbatim. The substantive grounds relating to the Tribunal's findings in relation to the indirect discrimination complaints are the subject of para 2 of the notice of appeal. We will extract the main passages: '2. The Tribunal applied the incorrect test for indirect discrimination on the ground of carer's responsibilities defined in s 49T(1)(b) as set out below. a. The Tribunal erred in finding the meaning to be given to the words 'who do have such responsibilities'; i. Required a comparison between people with carer's responsibilities and those without; ... b. The Tribunal erred in finding the Applicant was able to comply with the requirements by applying an incorrect interpretation of the words in the statute 'does not or is not able to comply', including, but not limited to wrongly importing a test of reasonableness c. The Tribunal erred in finding the requirements were reasonable because they did not in fact consider 'the circumstances of the case' in relation to each breach as they were required to do under s 49T(1)(b) and specifically [seven specific criticisms follow]. 32In responding to this submission, we have had regard to the totality of the material now before the Appeal Panel including the written and oral submissions. 33The Commissioner submitted that each of the findings made by the Tribunal were determinations of fact. Clearly all of the determinations had a significant factual component. As to identification of the groups to be compared for the purpose of the disparate impact test, Mr Wright submits that the Tribunal's construction of the relevant words in s 49T(1) was unduly narrow. Similarly in relation to the question of compliance, Mr Wright's submission is that the Tribunal wrongly imported a test of reasonableness when that was not contemplated by the terms of the provision in relation to this point, and finally in relation to the general consideration of the reasonableness of the requirement the Tribunal did not have regard to various matters that it should have had regard to. These challenges all raise matters that can be pressed as questions of law (statutory construction in the first two instances) and the law that governs the proper exercise of a legal discretion (in the final instance). We will proceed to deal with the appeal.

Complaint (1) - Whether justiciable 34Complaints (1) and (2) refer to different applications, but relate to the same overall period, the first term school holidays of 2011. 35The first leave application was made in a timely way, and was granted on 8 November 2010. We have some difficulty in understanding how complaint (1) fell for consideration as an instance of indirect discrimination. In its reasons the Tribunal found that he nominated the week because he was aware that the embargo would apply to the second week. The Tribunal found that he did not realise that he had not told his former wife that he had that week as approved leave. He only learnt on 27 March 2011 that she had assumed he had leave for the second week, and had made different plans for the children for the first week. 36That led him on 28 March 2011 to withdraw his application for leave for the first week and substitute an application for leave for the second week. The Commissioner's treatment of this, the second, application is the subject of complaint (2). He was informed on 10 April 2011 that his application had been refused in part because of a leave embargo. The roster that issued on 11 April required him to work Monday 18 to Easter Thursday 21 April, and from Wednesday 27 April to Friday 29 April 2011. He was granted leave for the core days of the Easter long weekend, Friday 22-Monday 25 and Anzac Day, the 26th, the Commissioner's evidence being that he was allowed 'rest or recurrent leave' for those days. 37In our view, complaint (1) has no proper foundation. The relevant leave application was in fact granted, so that outcome can not, we consider, found a justiciable issue. Alternatively, once the application was 'withdrawn' by Mr Wright on 11 April, it became non-justiciable for that reason. For that reason, the appeal in relation to complaint (1) is dismissed. 38We will confine our further consideration of the appeal in this area to complaints (2), (4) and (6). 39The third leave application, the subject of complaint (4), was made in a timely way. Mr Wright had applied early in January 2011 for three rostered days off for the period 20-22 May 2011, the fourth weekend of the month, and the weekend in the month he had agreed to take the children. The roster that came out on 11 April 2011 showed him rostered on for those three days. He tried to swap shifts with other officers but was unsuccessful. He then applied on 13 May 2011 for extended leave for that period. He received a reply on 17 May 2011, and was granted Friday 20 May, but not for Saturday 21 May or Sunday 22 May. He said in evidence that he could not find anyone to care for his children that weekend, and therefore did not attend work, and stayed with his children in Yass. 40The fourth leave application, the subject of complaint (6), was also made in a timely way. On 19 August 2011 he applied for recreation leave from 26 December 2011 to 15 January 2012. The application was refused, applying a leave embargo policy applicable to that period of the year. The Tribunal's reasons detail his attempts to overcome the difficulty he now faced in not being able to care for the children in the period agreed with his wife. He was unable to overcome the difficulty, did not attend for work for that period, and returned to Hillston on 17 January 2012.

'Persons who do not have such responsibilities'. Ground of Appeal 2(a) 41The Tribunal held as a matter of construction of s 49T(1)(b) that the base groups or pools that were to be compared were 'those with carer's responsibilities' and 'those without carer's responsibilities'. The effect was that the first pool included anyone in the Police Force with carer's responsibilities of any of the types to which the definition in s 49S is directed, and the second pool was anyone who did not have carer responsibilities of any of the types listed there. The Tribunal drew this conclusion from the contrasting terms used in the sub-section - an aggrieved person was a person 'having responsibilities as a carer' and their treatment was to be compared with 'persons who do not have such responsibilities'. 42Mr Wright's submission was that his ability to succeed in relation to the next two elements of s 49T(1)(b) the 'reasonableness' element and the ' inability to comply' element (the issues addressed by grounds 2(b) and 2(c) of his notice of appeal) depended significantly on how the Tribunal chose to formulate the comparator groups, and that it was wrong to make the comparator groups so global - all carers with any of the responsibilities to which s 49S refers on the one hand, and everyone else on the other hand. 43The case law shows that the characterisation of the two groups to be compared is often a complex aspect of the case, and the ultimate outcome of the case may turn significantly, as Mr Wright suggests, on the choice made by the Tribunal as to the composition of the base groups. Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 (Banovic) is a striking example of the this point. Women ironworkers complained of indirect discrimination in relation to the impact on them of a retrenchment policy that was neutral on its face, in that it was applied first to those workers who had been most recently employed ('last on, first off'). Women who had been retrenched under the policy complained of indirect discrimination on the ground of their sex, in that a substantially higher proportion of men were able to comply with the policy, and avoid retrenchment. 44The respondent employer submitted that the relevant base comparisons were between all males employed as ironworkers and all females employed as ironworkers. The Court accepted that such a comparison would mask the differential impact of which the women complained. There were very few long term women workers in the workforce, because historically it had been very difficult for women to obtain work as ironworkers due to screening criteria (e.g. weight bearing capacity) that women were less likely to meet. Policies of this kind had been abandoned in mid-1980. The retrenchment announcement had been made in October 1982, after a downturn in the steel industry. The Court (Deane, Dawson, Gaudron JJ; Brennan CJ, McHugh J dissenting) upheld the primary tribunal's orders. The majority defined the 'requirement or condition' for continued employment as being that the employee had to have been employed prior to 30 September 1980. The detriment, risk of dismissal, applied to persons employed after that date. The majority held that the appropriate comparison was one that compared men and women who had been recruited as from that date. 45Once the male pool was defined in that way, it became clear that past practices had resulted in there being proportionately far more women adversely affected by the retrenchment policy than their overall proportion in the workforce. (Women comprised 15% of the post-September 1980 group as compared to 1% of workers in the pre-September 1980 group.) 46Section 24(3)(a) of the ADA, as formulated at the time of Banovic, commenced with the words 'A person discriminates against another on the ground of his sex if he requires the other person to comply with a requirement or condition - (a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply'. In this case parallel language is used, and s 49T(1) substitutes for 'his sex', 'the aggrieved person's responsibilities as a carer'. 47As noted earlier, in the present case the Tribunal held that the comparison, for the purpose of s 49T(1)(b) was to be made between people 'with carer responsibilities' and those who did not have carer responsibilities. The Tribunal did not further qualify the comparator groups, say, for example into a comparison of those with child care responsibilities and those without child care responsibilities, or say those who are carers of children as sole parents, and those that are carers of children as parents in a dual relationship and a supportive partner. 48Mr Wright's submission, in effect, is that it is not sufficient to chose to compare anyone with carer responsibilities against all people without carer responsibilities. The true comparison is between, basically, sole parents with carer's responsibilities and others with carer's responsibilities who are not sole parents. His case is that many of the members of the Police Force with child care responsibilities would be in settings where a spouse or partner may be able to carry the load on the days they are rostered for service. Sole parents, in his submission, face greater difficulty in making other arrangements. Employers should, he argues adopt leave policies that respect their situation, and noted that sole parents may, if they do not meet their obligations under parenting agreements, be at risk of reduction of their care rights. 49The Tribunal drew support for its construction from the different drafting of the disability discrimination provisions of the ADA which it saw as permitting a more refined comparison in that area because of its use of different terminology. The relevant provision (s 49B(1)(b)) allowed for a comparison to be made between people with a disability and people 'who do not have that disability' (emphasis added), 'meaning the aggrieved person's disability' - [83]. 50It will be seen that the meaning given to 'carer' in s 49S (set out earlier in these reasons) is not expressed in a global way. It refers to various kinds of care relationships. A distinction is drawn between care relationships with children (see categories (a) and (b)) and ones with other immediate members of the family ((c)). 51Mr Wright submitted that the word 'such' in the provision under notice here (s 49T(1)(b)) played the same rule as the word 'that' in the disability discrimination provision that the Tribunal saw as having a narrowing effect. 52Mr Wright's submissions also referred in support to the terms of s 49U, the unjustifiable hardship provision, and its reference to the 'relevant responsibilities' of the carer. Section 49U provides: 49U What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account, including: (a) the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned, and (b) the effect of the relevant responsibilities as a carer of a person concerned, and (c) the financial circumstances of and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 53We agree with Mr Wright's submission that the disability discrimination provisions and the carer responsibilities discrimination provisions are substantially similar. We doubt that the Parliament intended that in indirect discrimination cases there would be a greater freedom to the Tribunal to narrow the comparator categories in disability cases as compared to carer responsibilities cases. 54We think Banovic itself illustrates a situation where the Court (by majority) was prepared to move away from a bald comparison of all female workers affected by the retrenchment policy and all male ironworkers affected by the retrenchment policy, and confine the comparison to male employees and female employees with a particular characteristic, in that instance employment after the date when the screening policies that had so heavily disfavoured female employment had been abandoned. 55Section 23(3) of the ADA provided at that time: (3) A person discriminates against anotherperson on the ground of his sex if herequires the other person to comply with arequirement or condition -(a) with which a substantially higherproportion of persons of the oppositesex to the sex of the other personcomply or are able to comply;(b) which is not reasonable having regardto the circumstances of the case; and(c) with which the other person does notor is not able to comply." 56That some flexibility may be brought to the task of identifying the groups to be compared is acknowledged, we consider, in the following passage from the joint judgment of Deane and Gaudron JJ in Banovic (at CLR pp 178-9). 17. As previously indicated, s.24(3)(a) requires an exercise which will ascertain whether sex is significant to compliance with the condition or requirement in question. It may be expected, as was indicated by Street C.J. in the Court of Appeal, that the base groups which are appropriate to that exercise will vary according to the context in which the condition or requirement is imposed. That being so, there is no warrant for reading s.24(3)(a) as invariably requiring the calculation of proportions by reference to the general male and female populations. Equally, there is no warrant for reading s.24(3)(a) as excluding that calculation if it will reveal the significance, if any, of sex to compliance. The silence of s.24(3)(a) as to the method of identifying appropriate base groups should, we think, be taken as requiring the Tribunal to determine for itself the base groups which will reveal whether sex is a significant factor in compliance. That is not to say that a determination of the appropriate base groups is merely a finding of fact which is beyond appellate review by reason of the limitation on appeals in s.118 of the Act. 18. The determination of the appropriate base groups will ordinarily involve the making of findings of fact. But it also involves a reasoning process which is not dissimilar from that involved in the process of determining whether or not evidence is relevant to an issue in a trial. A decision to select particular base groups involves a question of law, at least in so far as it is a question of law whether the base groups selected produce the exercise required by s.24(3)(a), namely, the ascertainment whether sex is significant to compliance. In this respect, it is necessary to enquire, as was pointed out in the recent decision of the United States Supreme Court in Wards Cove Packing Company (at pp 4586-4587), whether the groups are "too broad" or "too narrow". That exercise is, in essence, the same as an enquiry whether irrelevant considerations were taken into account or relevant considerations were not taken into account. 57In our view, the approach adopted in Banovic is one that allows for more fine-grained identification of the comparator groups or pools than simply confining them to the primary language of the statute. 58In our view, the task of the Tribunal is to adopt comparator categories that are of sufficient breadth to enable an effective comparison to be made and constitute pools that are credible and recognisable for those engaged in administration. This approach is consistent, as we see it, with the systemic character of indirect discrimination cases. 59We think it is permissible, having regard to the protective purpose of these provisions, and the delineation of different types of carer responsibility situations in s 49V, to characterise the groups more precisely than the Tribunal chose to do. We consider that the Tribunal was not barred by law from adopting more specific comparator categories than it chose to do. We do not think that the legislation mandates, as the Tribunal's reasons would appear to suggest, that only comparison allowed is between all persons with care responsibilities and all those without care responsibilities. It is permissible, we consider, to define the first group in narrower terms, having regard to the context and circumstances of the case. 60The Tribunal did go on to consider Mr Wright's submissions as to the characterisation of the two pools. 61The more extreme of his two proposals was that it was open to compare officers in Hillston with child care responsibilities and those without such responsibilities. This would have produced the absurd result of a pool of one, on the one side, and, on the other side, a pool of two. In our view the indirect discrimination provisions are not directed to microscopic comparisons of this kind, and that is reflected in words such as a 'substantially higher proportion'. 62The Tribunal also considered his other proposal, which it described as the third option. Mr Wright suggested that the comparator groups might be all those with carer responsibilities of a particular kind or extent (e.g. single parents) and those without those kinds of carer's responsibilities (i.e. people who are not single parents but who may have other kinds of carer's responsibilities). Had this case proceeded, it would, as the Tribunal noted have met with insuperable difficulties. Mr Wright had not adduced any evidence going to the extent of compliance of single parent officers versus, say, dual parent officers. 63Accordingly, if an approach that invested the carer comparison with additional characteristics such as sole parent status had been adopted, it would not, as we see it, have succeeded on the evidence before the Tribunal. There was insufficient evidence to make a comparison. 64The grounds of appeal also criticised the Tribunal for its ruling that it was not open to it in analysing the case on this basis to take 'judicial notice' of certain matters and find them as facts, in this instance the difficulties that a sole parent has in providing care as distinct from one who has a supportive partner. We will not deal with this point at length. In our view this is a matter that should be the subject of evidence, and we agree with the reservations expressed in another context on lightly taking judicial notice of matters: see Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [94]-[95] per Beazley ACJ (reversed in the High Court but not on this aspect, NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11).

Grounds of Appeal 2(b) and 2(c) 65The next two grounds put in issue the Tribunal's reasons in relation the question of whether the requirement was not reasonable having regard to the circumstances of the case (Ground 2(c)), and the Tribunal's conclusion as to whether the requirement is one that the aggrieved person is not able to comply (Ground 2(b)). 66On their face these are both inquiries of fact based on the evidence; and can not easily be disturbed on error of law grounds. The Tribunal dealt with the question of ability to comply with the requirement at some length at [36]-[75] of its reasons, and the question of whether the requirement was reasonable at [96]-[102] of its reasons. Much of its consideration of the evidence is found in the part dealing with ability to comply, and forms a background to its reasons in relation to reasonableness. 67In his written and oral submissions, though not squarely in the notice of appeal, Mr Wright submitted that the Tribunal failed in its duty to give adequate reasons. That the Tribunal has a duty to give adequate reasons is not in issue, and we accept the account of that duty given in the case cited by Mr Wright - AAD v NSW Trustee and Guardian & ors [2011] NSWADTAP 18 at [13] ff.

'Reasonable in the Circumstances'. Ground of Appeal 2(c) 68In relation to the issue of whether the Tribunal properly considered the issue of whether the requirement was reasonable in the circumstances, the submission is that the Tribunal did not consider all the 'relevant facts'. The Tribunal, it is said, omitted to consider the particular circumstances of Mr Wright, and only had regard to the evidence as to operational matters presented on behalf of the Commissioner. The submission is that the circumstances that the Tribunal should have considered extended to 'both the applicant's and the respondent's circumstances in the particular contexts of each of the complaints of discrimination'. The submissions continue: 'a determination of the reasonableness of, for example, the respondent's rules, cannot be considered on a 'global' basis (i.e. how they operate in general, or expected to operate in general) because those rules apply differently and have different outcomes depending on the location of the station, the work allocated to that station, the positions allocated to that station and the number of individuals actually employed in the positions.' 69The submissions continue by referring to other particulars that need to be considered, and refer, for example, to the specific steps taken by the Police Force to address requests of Mr Wright's kind, the ability of Mr Wright to make alternative child care arrangements if leave is not granted, and the way the rules were implemented in his case. He also submitted that the Tribunal should have taken account of the fact that the roster decisions made in relation to him were not consistent with and did not reflect the flexible approach seen in the provisions of the NSW Police Carers' Responsibilities Guidelines. Similar criticisms were made in relation to the way the Tribunal approached the issue of whether Mr Wright was able to comply with the requirement. 70We have referred earlier in these reasons to some aspects of the administration of leave applications, especially the application of embargoes to certain periods of they year, which in turn coincide with school holiday periods (Easter, Christmas-New Year). In addition to the embargo rule, the Griffith LAC policy also had a rule affecting the Hillston/Northern Cluster that there was to 'only one officer off at a time'. In evidence, Inspector Dunlop, the duty officer for human resources, referred to the way difficulties were resolved in relation to the one-officer rule. It was left to the officers to negotiate among themselves if they wished to vary the roster. These, clearly, are matters of significance in relation to the question of the reasonableness of the requirement (to work on days rostered). 71In our view, the Tribunal satisfactorily examined the circumstances in relation to its conclusion that the requirement was one necessary to the operation of the Police Force in the Griffith LAC area (i.e. duty to work as rostered). This is the first step in the analysis of reasonableness to which Brennan J (dissenting as to the result, but not on this issue) referred in Waters v Public Transport Commission (1991) 173 CLR 349 at 378. The next step is the one to which Bowen CJ and Gummow J refer in Department of Foreign Affairs & Trade v Styles (1989) 23 FCR 251 at 263 (see Tribunal's reasons at 96]). Their Honours said there: '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 reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.' 72In our view, a fair reading of the entirety of the reasons of the Tribunal as they relate to indirect discrimination (i.e. the general introduction at [1]-[8] plus the section headed 'Indirect Discrimination' at [9]-[102]) shows that the Tribunal was aware of, and had regard to, the various matters that Mr Wright considers relevant to his case such as the Police Carers' Responsibilities Guidelines, the timing of requests and the early application (19 August 2011) for leave for the Christmas/New Year period of 2011/2012. We do not interpret the statement of Bowen CJ and Gummow J in Styles as going so far as to require a tribunal to mechanically list all the circumstances of the case in the course of its decision. The question for the Appeal Panel is whether, on a fair reading of the decision as a whole, the Appeal Panel is satisfied that all relevant circumstances were taken into account, even if they were not all itemised in the way contended by the appellant in this case. 73In our view, the reasons were not inadequate. Nor did they infringe the standards governing the making of discretionary evaluations, as outlined in the line of cases applying the principles laid down in House v R [1936] HCA 40; (1936) 55 CLR 499.

'Ability to Comply'. Ground of Appeal 2(b) 74Though it is not essential that we do so, given our conclusion, above, in relation to Ground of Appeal 2(c), we will proceed to deal with Ground 2(b). Mr Wright challenges the Tribunal's finding that the requirement was not one 'with which the aggrieved person does not or is not able to comply'. 75The Tribunal said at [37]-[38]: 37The requirements are not requirements with which the Applicant "does not comply." There is nothing intrinsic to the Applicant or his circumstances which means that he does not comply with the requirement to work in accordance with the roster that is posted or current on the nominated days. An example of a situation where a person does not comply with a requirement is where the requirement is that a person is a certain height to obtain employment and the person is not that height. 38The Applicant conceded that he "would not" comply with the requirements. Because contact with his children was so limited, any expectation that he should have arranged for others to care for his children was not acceptable to him. He said that he believed he could not refuse to care for them. The question is not whether the Applicant "would not" comply with the requirement, it is whether he "is not able" to comply. That question is to be determined objectively, not only in accordance with the Applicant's preferences or what he regarded as necessary or reasonable. 76Mr Wright's submission is that the words of s 49T(1)(b) should have been liberally construed, mindful of the remedial objectives of anti-discrimination legislation, and, had that occurred, the Tribunal would found that he did not or was not able to comply with the requirement, on either of the following bases: (a) The applicant did not comply (as a matter of fact and based on what he did or did not do at the time); or (b) The applicant could not comply based on evidence as to the nature of his carer's responsibilities. 77In our view this approach distracts attention from the systemic character and purpose of an indirect discrimination provision. In an indirect discrimination claim the complainant does not allege that he or she was the subject of an individualised act of unlawful discrimination. The contention is that the complainant has been wronged by the way a system of administration works because (unintentionally) it has a feature which results in a significant bias against persons who like him share the same protected attribute. The 'systemic character', as we have called it, of indirect discrimination provisions must influence the approach to the construction of the specific elements of the provision. 78The Tribunal, we consider, took a purposive approach of the kind we favour. It did not interpret the relevant words of s 49T(1)(b) 'with which the aggrieved person does not ... comply', or, 'the aggrieved person ... is not able to comply' as referring to his personal action in choosing not to comply with the requirement to attend for work. The Tribunal approached the two questions by asking whether, objectively, he could not comply or was not able to comply. The question is not resolved simply by reference to the single factor of the subjective choice made by the complainant, as Mr Wright's submissions imply. We agree with the final sentence of para [38] of the Tribunal's reasons, set out above. 79This is, we consider, clearly not a case to which the first possibility applies. The case is one about whether the complainant in the circumstances is 'not able to comply'. The Tribunal can examine, as it did, the circumstances of the case and proceed to make a finding of fact. We agree with the Commissioner's submission that no question of law arises as to its findings on this point. 80Accordingly the appeal as it relates to complaints (1), (2), (4) and (6) is dismissed.

Victimisation: Whether issuance of warning notice cognisable (Ground 3) 81The Victimisation Complaints. We have set out the text of s 50 earlier in these reasons. 82Tribunal's reasons in summary. The Tribunal summarised its conclusions in respect of two victimisation complaints as follows: 6 The Applicant also complains that the disciplinary action which followed his non-attendance at work constitutes victimisation. Victimisation occurs when a person treats a person detrimentally because, for example, that person has lodged a complaint of discrimination. 7 We have decided that the complaints of victimisation are not substantiated because the decisions to refuse the Applicant's applications for leave were not made "on the ground that" he had lodged a complaint with the Anti-Discrimination Board (ADB). The Tribunal does not have power to determine whether the subsequent disciplinary action constitutes victimisation because it is precluded from doing so by the terms of the Police Act 1990 (Police Act), s 173(9). 83Complaint (5), which remains in issue, has as its background his conduct after the third leave application was refused (the subject of complaint (4)). He decided not to comply with the requirement that he go to work on 21-22 May 2011. On 16 June 2011 he received a warning notice from the Commissioner in relation to his conduct. 84The Tribunal accepted the Commissioner's submission that it was not entitled to examine this action as it was 'non-reviewable'. The Commissioner relied on s 173(1) of the Police Act 1990, read in conjunction with Schedule 1, i.e.: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. [Schedule 1 Non-reviewable action (Section 173) coaching mentoring training and development increased professional, administrative or educational supervision counselling reprimand warning retraining personal development performance enhancement agreements non-disciplinary transfer change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review) restricted duties recording of adverse findings] reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. 85The Tribunal referred to Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 (23 April 2013). In that case the Commissioner had exercised his power to 'remove' an officer from the force. The officer exercised her right to have the decision reviewed by the Industrial Relations Commission (IRC). Ultimately the IRC affirmed the Commissioner's decision. She applied for judicial review on a number of grounds, one being that it was wrong of the primary judge (Boland P) to take into account as part of her employment history the issuance to her of a warning notice by the Commissioner. 86She submitted that this was wrong as s 173(9)(a) prevents the IRC from considering any non-reviewable action, which is defined to include a warning notice. Macfarlan JA (McColl JA agreeing) ruled: 69 This Ground relates to the Warning Notice referred to in [41] above. By reason of s 173 of the Police Act, the giving of that warning was "non-reviewable action" which the Commission had no power to review. Ms Reid-Frost submits that, contrary to the section, Boland J did in fact do so, because in his judgment he considered whether the Commissioner's reliance upon the matters of complaint referred to in the Notice were well-founded. 70 Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the Warning Notice. That section is concerned with challenges by judicial review or otherwise to the Warning Notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the Warning Notice in the context of a subsequent examination of events leading up to, and allegedly justifying, the removal of a police officer under s 181D. The alternative of simply assuming that the Warning Notice was justified would unfairly prevent an officer who was subsequently removed from the Police Force arguing that the giving of the Warning Notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force. 87The Tribunal in this case held that it would be infringing the boundary set by s 173(9)(a) if it embarked on an examination of the reasons for the issuance of the warning notice. 88In support of this conclusion, the Commissioner at the appeal hearing drew attention a High Court decision that preceded Reid-Frost by two months, Commissioner of Police v Eaton [2013] HCA 2 (8 February 2013). 89In that case the question was whether the IRC had power to review a decision by the Commissioner to dismiss a probationary constable 'at any time without giving any reason' (Police Act, s 80(3)). The High Court (Gageler J dissenting) set aside a Court of Appeal decision that the IRC did have power to review the decision, and restored the decision of the IRC that it did not have such a jurisdiction. 90The Commissioner contended that properly construed this power was not amenable to review by the IRC in the exercise of its general jurisdiction to hear claims by employees of unjust dismissal and the provision in the Police Act (the IRC had held it did not). The Commissioner relied on the observations in the reasons of the Court going to the way provisions in different statutes that may not be in harmony should be construed and applied. 91We agree with the Tribunal's conclusion. In this case the decision to issue the warning notice is cited as the major detriment (as we understand Mr Wright's case he also cites the refusal to grant him leave as a further detriment). In Reid-Frost the IRC simply took note of the warning notice as part of an employment history. It did not proceed to evaluate the justification or otherwise for the warning notice. Macfarlan JA interpreted 'consider' in s 173(9)(a) to connote some form of serious examination of the particulars and merits of the non-reviewable action. 92In our view the Tribunal was right to see itself as being called on to undertake such a serious examination. Section 173(9)(a) operates as a fetter on the ability of police officers effectively to put in issue as victimisation the exercise by the Commissioner of certain of his disciplinary powers. It may be that, as contended by Mr Wright, a construction could be adopted that allowed both sets of provisions to operate harmoniously, perhaps in the way commended by Gageler J (in dissent) in Eaton. However in our view the balance of authority (Macfarlan JA in Reid-Frost and the majority in Eaton) favours the approach adopted by the Tribunal. 93The appeal as it relates to the victimisation complaint is dismissed.

(2) The Commissioner's Appeal 94The Commissioner's appeal challenges the Tribunal's decision to uphold Complaint (3), the complaint of direct discrimination in respect of the refusal of the transfer application, and to award Mr Wright $5000 in damages. 95The appeal is a question of law appeal, and there is no application for leave to extend it to 'other grounds'. The order sought is dismissal of the complaint. 96As filed, the appeal had seven grounds. Grounds 1 and 2 were not pressed at hearing. Grounds 3, 4 and 5 all relate to the Tribunal's construction of s 49T(1)(a), the direct discrimination provision. Grounds 6 and 7 are inter-related and concern the Tribunal's treatment of the evidence of the ultimate decision-maker in relation to the transfer application, Superintendent Rowan. 97Factual Background. On or about 1 April 2011 Griffith LAC circulated two notices, one inviting applications from constables and senior constables to perform the role of lock up keeper at Yenda, and the other a similar notice in relation to Whitton. Yenda is about 16km from Griffith and Whitton is midway between Griffith and Leeton (about 30km from each). Yenda and Whitton are each about 350km from Goulburn. 98The closing date for applications was 9 April 2011. Mr Wright, who, as previously noted, was the lock up keeper at Hillston, applied for each position. He referred in his application to the value to him in assisting him with his care responsibilities for his children of an appointment closer to Goulburn as both of these locations allowed. The notices advised that inquiries in the first instance should be directed to Inspector Gordon Dunlop, duty officer, Griffith LAC. On 27 April 2014 Inspector Dunlop telephoned and informed him that his application had been unsuccessful. In his affidavit (filed 4 January 2013), Mr Wright swore: '35. The conversation was as I recall the words to this effect. 'I was calling you to give you some follow up on your applications to Yenda and Whitton. You have not been successful in the positions because of family responsibilities because we can accommodate you more in Hillston. With Yenda you will be working out of Griffith and if you didn't turn up it would put greater pressure on the rosters.' He referred to the position at Yenda only, I gathered that the issues were the same for both positions.' 99At [162] of its reasons the Tribunal accepted Mr Wright's account of this conversation. Inspector Dunlop had been a member of the selection committee. Its decision took the form of a recommendation to the Local Area Commander Superintendent Michael Rowan who made the ultimate decision. 100In his affidavit (filed 4 March 2013), Supt Rowan stated that his decision not to appoint Mr Wright to either of the positions was: 'based purely on the following considerations, being: (a) the fact that Senior Constable Wright was still subject to 'tenure' at his position at Hillston station; and (b) the relative difficulty we were likely to face in covering his vacancy at the Hillston Station if [he] were to be transferred to either Yenda or Whitton.' 101Supt Rowan then went on to explain at some length the importance of the tenure policy and the way it is administered. The policy, in essence, requires posts to be filled for minimum time periods (for example, three years in the case of Hillston), the aim being to ensure an appropriate spread of the police presence across the whole State. Mr Wright had taken up his position at Hillston in January 2009 and the three years' tenure applying to his position had yet to expire. Supt Rowan noted that Mr Wright had received a one-off tenure payment ($5000) for going to Hillston as it was classified as a 'remote location'. He referred to an undated file note (said to be contemporaneous) in which he confirmed that tenure was his sole consideration. In the note he acknowledged that the selection committee had been aware of Mr Wright's concern that a transfer would assist his personal situation. 102In its reasons the Tribunal divided the matters to be proven into four elements, of which two are not put in issue by the appeal (i.e. it is not disputed that he had carer's responsibilities at the time of the application, and that in having his application denied he was subject to a detriment with in the meaning of the Act). The Tribunal's approach to the other two elements ('differential treatment' and 'causation') remains in dispute. 103The Tribunal dealt with the 'differential treatment' element in this way. 157 The differential treatment component of direct discrimination requires the Tribunal to compare the way the Respondent treated a person who has responsibilities as a carer with the way it treats or would have treated a person who does not have "those responsibilities" in the same or similar circumstances. "Those responsibilities" refers to responsibilities as a carer. The Applicant did not nominate an actual comparator so the question must be asked in relation to a hypothetical person. In this case the relevant comparator would be a police officer without responsibilities as a carer seeking a transfer in the same or similar circumstances. Those circumstances include that the person was still subject to tenure, was leaving a position that would be difficult to fill and who had a legitimate personal reason for wishing to be transferred. 158 When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person without carer's responsibilities by determining that carer's responsibilities was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. No final judgement can be made on the differential treatment question without examining the issue of causation. 104The Tribunal concluded its discussion under 'causation' as follows: 172 We are satisfied, on the balance of probabilities, that the Applicant's carer's responsibilities was one of the "real", "genuine" or "true" reasons for refusing the transfer. That was the only reason given by Inspector Dunlop during the phone call. Although Superintendent Rowan's undated memo gives tenure as the only reason, he agreed in cross-examination that the Applicant's child care responsibilities was another aspect of the decision. 173That conclusion allows us to answer the "differential treatment" part of the test for direct discrimination in the affirmative. 174The complaint of direct discrimination is substantiated.

Grounds 3-5 105Each of Grounds 3 to 5 goes to the Tribunal's construction of s 49T(1)(a). 106The Commissioner submits that the Tribunal erred in not using an actual comparator, and wrongly relied only on a hypothetical comparator (ground 3), to similar effect that it erred in failing to dismiss the appellant's claim when he had put forward no evidence of an actual comparator (ground 4) by finding that the two limbs (less favourable treatment and causation) merge where there is no actual comparator (ground 5) and by misconstruing the expression 'on the ground of' in s 49T(1)(a) by confusing a real, genuine, true reason for the Commissioner's action with matters that might have been mentioned or noted in the course of the decision. 107On its face, s 49T(1)(a) allows the Tribunal to have regard to an actual comparator ('treats') or a hypothetical comparator ('would treat'). The Commissioner's contention (ground 3) is that 'it was not open to the Tribunal to use hypothetical person in the particular circumstances of the claim'. 108This case is no different in its basic parameters to many anti-discrimination cases. The complainant has suffered a detriment, the complaint possesses a protected attribute, the critical debate then is whether the impugned conduct could be said to be 'on the ground of' the protected attribute (and it need not be the main ground, it is enough that it is a ground (s 4A)) and the complainant has been treated less favourably than someone (actual or hypothetical) without the protected attribute. 109The Commissioner's key difficulty, as we see it, is that there was a negative finding on causation. The Tribunal did not accept that the ultimate decision maker, Supt Rowan, made his decision in relation to Mr Wright's transfer applications solely by reference to the tenure policy. The Tribunal, after hearing Supt Rowan's answers in cross-examination, considered that Mr Wright's carer status was a factor. 110In many cases actual differential treatment may be able to be demonstrated, for example there were six qualified applicants for a position, three men and three women, but the three women were all successful. But it may transpire on closer examination that that the three women all satisfied the selection criteria to a greater degree, and were properly regarded as the best three applicants. In this case, it was not clear whether there were other applicants for transfer, and in any event no transfer was approved. In a case such as this the complainant will have difficulty in identifying an actual comparator. It is open to the complainant instead to rely on a hypothetical comparison. 111We do not consider that the decision in Purvis v State of New South Wales [2003] HCA 62 mandates the approach for which the Commissioner contends. That was a case of greater complexity than the present. A child with a disability that gave rise, on occasions, to uncontrolled aggressive behaviour had been expelled by the principal. The higher courts accepted that the principal's action was for the sole and genuine reason of concern for the welfare and safety of the other children in the school. The primary debate in the case centred on how the differential treatment comparison was to be constructed. The High Court held (by majority) that it was not appropriate to make the comparison between a child with the disability (both the underlying condition and the behavioural manifestations) and a child possessed on no disability which extended to absence of the behavioural manifestations. The proper comparison was with a child who is not disabled but engages in the same behaviour. 112In the present case the Tribunal compared Mr Wright's situation with that of a person without carer's responsibility, in the context of this case that would be a person with no parental child care responsibilities . In our view, the Tribunal did not commit the error to which para [223] the joint judgment of Gummow, Hayne & Heydon JJ speaks: In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. 113This is not a case where a 'wholly hypothetical' set of circumstances was erected by the Tribunal. The Tribunal at [157] sought to invest its comparison with similar characteristics to those under notice in the case. The difficulty to which the High Court was referring in this passage was the possibility that by making the uncontrolled behavioural manifestations a component of the first person's disability those manifestations would be excluded from the assessment of the 'circumstances' surrounding the second person's (the comparator's) situation. Gummow, Hayne & Heydon JJ concluded at [225] that unlawful conduct arose: 'only if it were found that [the child] was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.' 114Grounds 3 and 4 are rejected. 115Ground 5 raises a somewhat different point. It puts in issue the following statement in para [158] that: '[w]hen there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person without carer's responsibilities by determining that carer's responsibilities was a reason for that treatment'. 116In this comment the Tribunal is referring to a logical conundrum that arises in dealing with direct discrimination complaints. If a proscribed consideration is a factor in the decision making process then it will also supply the differential treatment factor for the comparison involving the same or similar circumstances. 117The Tribunal did not simply deal with the differential treatment issue in the way that might be seen as suggested at [158]. The key passage appears at [157] especially the last sentence. At [157] the Tribunal sought to invest the comparison with circumstances not materially different to the situation that occurred. On the question of special needs the first person had the exact situation of Mr Wright while the second person, the comparator, had the variation that he/she was not a person with parental child care responsibilities but a person with some other kind of 'personal needs'. In our view, the Tribunal did seek to match the circumstances as closely as possible. 118In our view, the same occurred in Purvis. The comparison was made between a child with the disability of the aggrieved person (including the behavioural manifestations) and a child with no disability but exhibiting similar behavioural manifestations. The lower courts had been satisfied that the principal would have acted the same way in each case. Critical to that assessment, as we see it, was the separate finding that the principal's sole and genuine reason for acting as he did was the welfare and safety of other children. In this case the Tribunal was not satisfied that fair application of the tenure policy was the sole and genuine reason for the decision maker acting as he did in this case. 119We do not consider it necessary to explore, one, the detail of the speeches of their Lordships in Shamoon, or, two, the related UK case law, or, three, the way this point has been repeated in tribunal decisions since 2008, as sought by the Commissioner. In our view, the Tribunal is making a self-evident point, and is not transporting into Australian anti-discrimination law a perspective that derives from the different statutory approach taken in the UK law. There will be cases where once the question is answered as to the factors that led to the conduct in issue, the answer to the differential treatment question will be obvious. There will be other cases where the conduct appears, on its face, to be discriminatory, but a closer exploration reveals that the only factors taken into account were lawful ones, and therefore the circumstances more fully understood lead to the differential treatment test not being satisfied. 120The use of the word 'merge' ought, perhaps, be avoided, in explaining this point. There are two separate matters (causation, and differential treatment), but often the finding in relation to causation will mean that only one answer can be given on differential treatment. 121Ground 5 is rejected.

Grounds 6 and 7 122In ground 6, the Commissioner submits that the Tribunal erred in construing the expression 'on the ground of' by confusing a real, genuine, true reason for the Commissioner's action with matters that might have been mentioned or noted in the course of making the decision. The ground refers to para [169] and the submissions refer in addition to [172]. Paragraph [172] is the conclusion to the Tribunal's consideration of Supt Rowan's evidence, para [169] being part of that consideration. 123In Ground 7 the Commissioner submits that the Tribunal erred at [169], [170] and [171] of the decision by misstating the evidence given by Supt Rowan at the hearing on 27 May 2013 and thereby leading itself into error in relying on 'facts' which were not part of the evidence before the Tribunal. 124It will be seen that both these grounds attack the Tribunal's findings as to matters of fact. They are couched in the language of questions of law ('erred in construing', Ground 6) and, in essence, reliance on non-existent facts, or no evidence (Ground 7). 125We will set out the paragraphs of the reasons to which these two grounds refer, together with the passage from [164] to [168] which provides context. 164 Superintendent Rowan stated that the reasons he decided that the Applicant should not be transferred were firstly, that he was still subject to tenure and secondly, "the relative difficulty he was likely to face in covering his vacancy at the Hillston station." According to Superintendent Rowan, there was no organisational benefit in transferring the Applicant to either Yenda or Whitton. He also decided that the other officer who applied should not be transferred because he was also subject to tenure in his current position. 165 The Applicant did not agree that tenure or the difficulty in covering his vacancy was the real reason for the decision. He submitted that at least one of the "real" reasons was his carer responsibilities. 166 In relation to the tenure policy, Superintendent Rowan's evidence was that while there are some exceptions to the tenure policy, none applied to the Applicant. When asked in cross-examination whether particular police officers had completed tenure before being transferred, Superintendent Rowan agreed that Grant Bridge and Vlad Mijok had not completed tenure before being transferred. He said he had not made the decision in relation to Mr Mijok. Despite these decisions having been made, Superintendent Rowan denied that he could have exercised his discretion to excuse tenure in the Applicant's case. 167Superintendent Rowan relied on a "contemporaneous", but undated, file note which he says records his reasons for the decision: I am aware after speaking with Inspector Dunlop and Brenda Stedman the rationale of the selection committee for non-selection of Grant Wright for either position. I am aware that the committee spoke about the needs of Senior Constable Wright in terms of his personal needs. In ratifying the decision of the committee in terms of the application for transfer the basis of my decision is tenure. S/C Wright took Hillston at a time when it had been vacant for some time given the resignation of S/C Longbottom. He commenced in January (2009) and tenure to enable application for transfer will not be met until January 2012. Given the historical difficulty I would not necessarily support a transfer at that time. Whilst I appreciate the concerns of the selection committee in terms of S/C Wrights attendance patterns, particularly in respect of his requests and the impact this would have on FRP at Griffith given both Yenda and Whitton would be deployed from Griffith this is not a valid reason to decline a transfer. That said it is a reasonable consideration to be made when selecting staff and it forms part of the regular recruitment processes. I have spoken with Inspector Dunlop in this regard. MJ Rowan Commander 168 Superintendent Rowan says in this memo that "the basis of my decision is tenure." Superintendent Rowan agreed that two officers had been transferred previously without having tenure. There was no evidence in relation to the circumstances of those transfers. We are satisfied that lack of tenure was one of the matters, but not the only matter, that Superintendent Rowan took into account in refusing the applications for transfer. 169 Under cross-examination Superintendent Rowan clarified that the reference to "personal needs" and "S/C Wright's attendance patterns" in the undated memo were both references to the Applicant's request for leave due to carer's responsibilities for the period from 18-29 April 2011. He said that his understanding was that the committee had considered a number of requests the Applicant had made for leave and whether they could be accommodated at Yenda or Whitton. In summary, his view as expressed in the memo is that the fact that the Applicant's requests for leave to meet his carer's responsibilities could not be accommodated as well in Yenda or Whitton is not a valid reason to decline a transfer. 170 It was put to Superintendent Rowan that the last paragraph of his memo contains a "mixed message" about what should be taken into account. In relation to the last sentence of the memo, the reference to selection of staff, Superintendent Rowan said that when recruiting staff an assessment is made of their sick leave history and professional standards history. He re-iterated that the committee should not have considered any need the Applicant had for carer's leave when making a recommendation about transfers. 171 In cross-examination Superintendent Rowan agreed that the Applicant's child care responsibilities could be better accommodated at Hillston. But he said those responsibilities were only one aspect of the decision. The other issues were difficulties recruiting to a remote location at Hillston and tenure. 172 We are satisfied, on the balance of probabilities, that the Applicant's carer's responsibilities was one of the "real", "genuine" or "true" reasons for refusing the transfer. That was the only reason given by Inspector Dunlop during the phone call. Although Superintendent Rowan's undated memo gives tenure as the only reason, he agreed in cross-examination that the Applicant's child care responsibilities was another aspect of the decision. 173 That conclusion allows us to answer the "differential treatment" part of the test for direct discrimination in the affirmative. 126 In Ground 6 the Commissioner argued that it was wrong to take any account of Insp Dunlap's recommendation in ascertaining the reason for Supt Rowan's decision. This is too linear. Orthodox administration of complex organisations, as the Police Force clearly is, involves the use of delegated authority and the making of decisions by delegates based on advice and recommendations. It would be unrealistic were a tribunal to confine its inquiry into the reasons for a decision solely to the evidence given by the ultimate decision maker in a structure where advice has been tendered and the giver of the advice has had direct contact with the applicant for the decision. 127The Tribunal introduced its discussion of this aspect of the case with the following statement: Causation 159The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's carer's responsibilities (including the extended definitions of that ground) is at least one of the "real", "genuine" or "true" reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The reason does not have to be the only reason for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 128Counsel for both parties agreed that the decision in Purvis did not stand for the proposition set out. Counsel for Mr Wright agreed with the Commissioner's submission that none of the judges in Purvis referred to the need for 'genuine' reasons, and the judges who referred to the need for 'real' reasons or 'true' reasons were dissenting. Counsel for Mr Wright agreed with the Commissioner's submission that the majority (Gummow, Hayne & Heydon JJ) in Purvis addressed the causation element of direct discrimination as follows: 236. ... Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of' that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 129The provision under notice was a Commonwealth one, the words of connection in the NSW Act under notice here are 'on the ground of', but both parties, and we agree, accepted that the observations in Purvis applied equally to that expression. 130 The Commissioner also submits that not only was the Tribunal wrong to describe its task as the ascertainment of the 'true', 'real' or 'genuine' reason for the conduct but it was wrong to describe the object of the conduct as 'treatment' when the words used in paragraph (a) of s 49T(1) are 'treats the aggrieved person less favourably than in the same circumstances [etc]' (our emphasis). In our view, it is clear from the reasons read as a whole that the word 'treatment' was simply being used for conciseness and the Tribunal understood that it was engaged in a comparative exercise. 131The key point made by the High Court is that 'the central question will always be - why was the aggrieved person treated as he or she was'. In our view the analysis engaged in by the Tribunal at [164] ff answered the 'why' question. It is not necessary in this area of the law that the unlawful reason be the only or dominant reason for the impugned conduct. It need merely be one of the reasons: s 4A. While the Tribunal erred in its statement of the law, the subsequent findings of fact satisfied the test stated at para [234] of Purvis. 132In relation to ground 7, the Commissioner's submissions at pp 18-20 set out the relevant cross examination of 27 May 2013. We have reviewed the record. In our view, para [171] is a reasonable synthesis of Supt Rowan's answers. Ground 7 is no more than an attack on the fact-finding process of the Tribunal. We will not reiterate the narrow circumstances in which the fact-finding process can be attacked on error of law grounds. Ground 7 is rejected. 133The Commissioner's appeal is dismissed.

Costs of the Appeal 134Both parties foreshadowed possible applications for costs, depending on the outcome of the appeal. We make the following directions in that regard, covering both appeals dealt with by these reasons: Each party to file and serve within 21 days of the date of publication of these reasons any application for costs of the appeal. The respondent to any such application to file and serve submissions in reply within 14 days. The determination of any such application(s) to be made without a hearing, on the papers; unless a party objects that course, in which case a directions hearing will be held to consider the objection.

Orders

1. Appeal No 14/0037. Dismissed
2. Appeal No 14/0038. Dismissed
3. Any applications for costs to be dealt with in accordance with the directions given at para [134] of the reasons for decision. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 27 October 2014 - typographical error - File number entered incorrectly Amended paragraphs: Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2014