HREOC Report No. 33

Report of an inquiry into a complaint by Ms Tracy Gordon of discrimination in employment on the basis of criminal record

HREOC Report No. 33

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The Hon Phillip Ruddock MP
Attorney-General
House of Representatives
Parliament House
CANBERRA ACT 2600

Dear Attorney

Pursuant to section 31(b)(ii) of the Human Rights and Equal Opportunity Commission Act1986 ( Cth), I attach a report of my inquiry into a complaint by Ms Tracy Gordon of discrimination in employment on the basis of criminal record by the Emergency Services Telecommunications Authority of Victoria (formally Emergency Communications Victoria) and Victoria Police. I have found that the act and practice complained of constitutes discrimination in employment on the basis of criminal record.

Yours sincerely,
John von Doussa QC
President
February 2006


Table of Contents

1. Introduction

2. Outline of Complaint

3. Outline of response

(3.1) Response from ESTA
(3.2) Response from Victoria Police
(3.3) Further information provided by the Complainant
(3.4) Further information provided by Victoria Police

4. Conciliation

5. Relevant legal framwork

6. Tentative view

7. Findings

(7.1) Is there an act or practice within the meaning of section 30(1) of the HREOC Act?
(7.2) Does the act or practice involve a distinction, exclusion or preference on the basis of the complainant's criminal record?
(7.3) Does the distinction, exclusion or preference have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation?
(7.4) Is the distinction, exclusion or preference based on the inherent requirements of the position?

8. Actions taken by the respoindent as a result of the findings

Appendix one

Endnotes


1. INTRODUCTION

This report concerns my inquiry into a complaint of discrimination in employment on the basis of criminal record made to the Human Rights and Equal Opportunity Commission (the ‘Commission’) by Ms Tracy Gordon. The complaint is made against the State of Victoria, Emergency Services Telecommunications Authority (formally, Emergency Communications Victoria) (‘ESTA’) and Victoria Police.

I have inquired into the complaint made by Ms Gordon pursuant to section 31(b) of the Human Rights and Equal Opportunity Commission Act 1986 ( Cth) (‘HREOC Act’). 1

As a result of my inquiry, I have found that the act and practice complained of constitutes discrimination in employment on the basis of criminal record.

2. OUTLINE OF COMPLAINT

Ms Gordon applied for the position of Communications Officer with ESTA. On 20 August 2003, she attended the assessment centre for assessment for employment as a Communications Officer. Ms Gordon alleges that she completed the typing assessment and filled in the application form provided by ESTA, which included a request for details of any criminal record. She alleges that a staff member advised her that she was ineligible to go any further in the assessment process as she had a conviction for drink driving and asked her to leave the assessment. Her criminal record contains a drink driving conviction (28 August 2001) for driving with a blood alcohol content of 0.123%, for which she was fined $500 and disqualified from driving or obtaining a licence for a period of twelve months.

Ms Gordon alleges that when she contacted Victoria Police about the situation she was advised that there is a policy in place that ESTA have to abide by when recruiting for their positions. She alleges she spoke with Victoria Police on 12 September 2003, to seek an exemption under their exclusion policy in order to be given an opportunity to be assessed as a Communications Officer with ESTA. On 2 October 2003 she received a letter from Victoria Police advising her that she was and would remain ineligible for employment with ESTA due to Victoria Police’s exclusion policy.

3. OUTLINE OF RESPONSE

3.1 Response from ESTA

On 23 February 2004 the Commission received a response from ESTA.

ESTA states that it is a State owned body that is contracted to provide emergency and dispatch services on behalf of Victoria’s emergency services organisations, including Victoria Police. ESTA states that the services provided by it are subject to a formal contract (the ‘CAD Services Agreement’) which provides, among other things, that it will not engage employees ‘unless satisfied the security clearance is to a level consistent with the requirements set for the recruitment of operational employees with similar levels of responsibility within   [Victoria Police]’. ESTA state they have been advised by Victoria Police that a serious traffic offence, including exceeding the Prescribed Concentration of Alcohol (‘PCA’) by 100 percent or more, is grounds for automatic disqualification from consideration as a potential police recruit. ESTA state, that in accordance with the terms of the CAD Services Agreement, a person found guilty of such an offence is ineligible for employment as a police call taker with them.

ESTA provided a position description for a Communications Officer which lists the inherent requirements of the position as follows:

  • Manage demanding and changing workloads and competing priorities within a high pressure time critical environment.
  • Work rotating rostered hours within a 24 hour, 7 day a week, up to 12 hour shift pattern.
  • Be exposed to a mission critical environment, which may include exposure to critical incidents and highly emotive situations.
  • Work in open plan office.
  • Constant use of computer technology; including large scale visual display units broken into multiple windows, computer keyboard and mouse, for extended periods of time (including 12 hour shifts).
  • Constant use of telephone headset.
  • Constant seated position at a desk operating technology.
  • Work in building that may be multi storey.
  • Work independently and within a team environment.
  • Work within a heavily audited work environment, receiving regular performance related feedback.
  • Interact with members of the public who could display challenging behaviour (verbal) and/or the full range of emotional expressions, including those who may be in a heightened state of aggravation, shock, despair, stress or other emotional extreme.
  • Interact with colleagues.
  • Interact with management and their representatives.
  • Undertake tasks involving intensive computer/keyboarding work and concentrating for long periods of time.
  • Use of other technology including telephones, photocopier, fax machine etc.

3.2 Response from Victoria Police

On 23 January 2004 the Commission received a response from Victoria Police.

Victoria Police states that pursuant to the CAD Services Agreement, the selection criteria for positions with ESTA must be linked to the selection criteria required of a police recruit. Victoria Police states that, relevantly, clause 4.1 1(d) of the Prior Convictions policy provides:

Automatic Disqualification

An applicant with an offence history for any of the following:-

(d) Serious Traffic

( i)  found guilty, charge proven for, any serious traffic offence within the last ten years.   Matters considered as serious traffic offences include, but are not limited to:

  • Exceed PCA – 0.1% or over or refuse (or previously fail to provide) alcohol tests, including fail to accompany or fail to remain for testing;
  • Two or more incidents of exceeding PCA under 0.1%;
  • Found guilty, charge proven for offence of driving while licence suspended, cancelled or disqualified;
  • Driving in a manner dangerous;

or

  • The applicant is currently under suspension, cancellation or disqualification of driver’s licence;

Unless provided for in the ‘discretionary authority’ provisions below, an applicant referred to in this section will be automatically deemed to have failed to meet the required standard of ‘good character and reputation’ as a police officer and will be disqualified for appointment, and therefore ineligible for consideration as a potential recruit.

Victoria Police deny Ms Gordon’s claim that her reputation has been sullied or branded a criminal and deemed not good enough by Victoria Police standards. Victoria Police states there is no reference in its correspondence that suggests she is a criminal or that she is not good enough. Victoria Police states that Ms Gordon did not meet the inherent requirements of the ‘Police Recruit Prior Offence History’ policy and as such, ESTA determined that she was unsuitable for the position. Victoria Police deny that Ms Gordon’s unsuitability was in any way connected to alleged discrimination under the HREOC Act.

Victoria Police state ESTA is engaged by the State government to provide emergency communications support to emergency services, such as Victoria Police and that staff of ESTA have access to confidential police information. Victoria Police states that this contract provides, amongst other things, that any ESTA staff member that has access to this information must meet Victoria Police recruiting standards when employed by ESTA. Victoria Police states that this contract is subject to confidentiality and as such, has not provided a copy to the Commission.

3.3 Further information provided by the Complainant

On 4 March 2004, the Commission received further correspondence from Ms Gordon.   In her correspondence she states it was Victoria Police who directed ESTA to exclude her from the recruitment process because of its ‘prior convictions policy’. Ms Gordon states that although Victoria Police and ESTA are separate entities, ESTA is contractually bound to Victoria Police to apply the same standards of recruitment as those for a sworn Police Officer. Ms Gordon states that if she had applied for a position through Victoria Police, she would have had access to a grievance procedure, but the same did not apply when she applied for a position with ESTA.

Ms Gordon states that Victoria Police has formed an opinion about her integrity on the basis of one traffic infringement of a summary nature, and deemed her to not be of good character and reputation. She also states that Victoria Police have continually referred to her criminal record, but have not provided any reasons as to why her criminal record would be relevant to the inherent requirements of the position of Communications Officer with ESTA.

Ms Gordon states that the Forward of the Victoria Police Equity and Diverstiy Corporate Five Year Plan 2003 – 2008 states, in part:

In the end, the plan is about the way we treat each other, about fairness and decency and also the fair process that underpins our policies and systems.   If we have that, this organisation will be able to achieve many things, far more than it ever imagined.

She states that she does not believe that anything about the way in which she has been treated by Victoria Police or ESTA has been ‘fair and decent’.

3.4 Further information provided by Victoria Police

On 27 July 2004, the Commission sought further information from Victoria Police in relation to the inherent requirements of the position of Communications Officer and why Ms Gordon, because of her criminal record, was unable to fulfil them.

On 5 October 2004 the Commission received further information from Victoria Police.

Victoria Police states that the position of a Communications Officer at ESTA requires an operational focus in that it involves real time emergency call taking and operational radio control. Victoria Police contends that it is an inherent requirement of this position that the persons undertaking this role (which involves having full access to sensitive data in the Victoria Police CAD and LEAP record systems), must have the highest standards of integrity. Victoria Police states that the existence of a criminal record is directly relevant to this standard.

Victoria Police states that drink driving is a significant and high profile offence in terms of objectives of Victoria Police and the Victorian Government. Victoria Police states that it is not only the subject of considerable advertising, but driving in an intoxicated state has become socially, legally and ethically unacceptable.   Victoria Police states that since its business is about protecting life and property, it is clearly inappropriate to sanction such behaviour. Victoria Police states that individuals who commit very serious traffic offences are not suitable for employment within the policing environment as they have failed to meet the required standard of good character and reputation.

Victoria Police states that Ms Gordon’s drink driving conviction, due to its high reading, is considered a serious traffic offence. Victoria Police also states that there is a discretionary power to consider applicants with a prior history of serious traffic offences for employment where those offences occurred over ten years ago. As Ms Gordon’s conviction occurred less than ten years ago, no such discretionary power exists in this case.

Victoria Police states that the CAD Services Agreement has been developed to ensure that the operational services formerly provided by sworn Police Officers, can be effectively undertaken by civilian staff. Victoria Police states that since the role of a Communications Officer is a de facto policing duty, the inherent requirement that ESTA applicants are of good character and reputation should be the same standard applied to sworn Police Officers.  

Victoria Police has provided a copy of an excerpt from the Police Regulations 2003, which provides, amongst other things:

5. Appointments

A person is qualified for appointment to the force if the person-

(a) is of good character and reputation; …

Victoria Police states that an individual’s criminal record is directly relevant to this standard, with serious traffic offences requiring automatic disqualification.

4. CONCILIATION

The Commission endeavoured without success to effect a settlement of the matters giving rise to the complaint.  

5. RELEVANT LEGAL FRAMEWORK

Part II, Division 4 of the HREOC Act confers functions on the Commission in relation to equal opportunity in employment in pursuance of Australia’s international obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO 111).

ILO 111 prohibits discrimination in employment on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin and other grounds specified by ratifying States. Australia has declared criminal record as a ground of discrimination for the purposes of the HREOC Act. 2

Section 3(1) of the HREOC Act defines discrimination for the purposes of section 31(b) as:

  1. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute discrimination for the purposes of this HREOC Act;
  3. but does not include any distinction, exclusion or preference:
  4. in respect of a particular job based on the inherent requirements of the job; or
  5. in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

6. TENTATIVE VIEW

On 10 June 2005, I informed the parties of my tentative view that not allowing Ms Gordon to continue the application process for the position of Communications Officer constituted discrimination on the basis of criminal record. My tentative view was that, whilst there may be a character element inherent in the position of Communications Officer, it is not an inherent requirement that this standard be of the same high level as that required of a sworn Police Officer or Police recruits.

In accordance with section 27 of the HREOC Act, I invited the respondent to make further submissions in response to my tentative findings. No response was received from ESTA. On 8 September 2005 the Commission received a response from Victoria Police.

In its response, Victoria Police made the broad statement that each case is dealt with on its merits, but did not address or challenge any specific issue raised in the tentative view.  

7. FINDINGS

On 13 December 2005, I provided the parties with a notice under section 35(2) of the HREOC Act outlining my findings in relation to the complaint, which are as follows.

Relevant issues

In deciding whether an act or practice complained of constitutes discrimination for the purposes of section 31(b) of the HREOC Act, I am required to determine whether:

  1. there is an act or practice within the meaning of section 30 (1) of the HREOC Act;
  2. that act or practice involved a distinction, exclusion or preference on the basis of the complainant’s criminal record;
  3. the distinction, exclusion or preference has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  4. that distinction, exclusion, or preference is based on the inherent requirements of the job.

7.1 Is there an act or practice within the meaning of section 30(1) of the HREOC Act?

I consider that ESTA’s decision not to allow the complainant to continue the application process for the position of Communications Officer is an ‘act’ within the meaning of section 30(1) of the HREOC Act. I consider that this decision was made in accordance with the CAD Services Agreement between ESTA and Victoria Police and Victoria Police’s Police Recruit Prior Offence Policy.

I also consider therefore that the requirement by Victoria Police, by way of the CAD Services Agreement and associated policies of Victoria Police (including the Police Recruit Prior Offence Policy), that ESTA not employ any person with a criminal record that includes a serious traffic offence, constitutes a ‘practice’ within the meaning of section 30(1) of the HREOC Act.   

7.2 Does the act or practice involve a distinction, exclusion or preference on the basis of the complainant’s criminal record?

I am of the view that the information provided by ESTA, Victoria Police and the complainant shows that the Ms Gordon’s criminal record was the only factor relied upon by ESTA when deciding not to allow her to continue with the application process for employment as a Communications Officer.

I consider that it is clear that the practical effect of the CAD Services Agreement and associated policies of Victoria Police resulted in ESTA not allowing the complainant to continue the recruitment process. It is also clear that the complainant’s criminal record comes within the definition of a ‘serious traffic offence’ as defined in Victoria Police’s Police Recruit Prior Offence Policy. I am of the view that the requirement by Victoria Police that ESTA not employ a person that has a criminal record that includes a serious traffic offence, constitutes a distinction on the basis of criminal record.

Consequently, on the information before me, I am of the view that:

  • ESTA’s decision to not allow the complainant to continue with her application for a position as a Communications Officer; and
  • Victoria Police’s requirement that ESTA not employ a person who has a criminal record that includes a serious traffic offence;

constitutes a distinction, exclusion or preference on the basis of the Ms Gordon’s criminal record.

7.3 Does the distinction, exclusion or preference have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation?

For an act or practice to be discriminatory, the HREOC Act requires the complainant to show that the distinction, exclusion or preference has the effect of nullifying or impairing the equality of opportunity or treatment in employment or occupation.

When the complainant was not allowed to continue with the application process for employment as a Communication Officer with ESTA due to her criminal record, her suitability for the position was not further considered by ESTA. As such, there was no consideration of the technical merits of her qualifications and experience against those of other applicants. Because of the decision to not allow the complainant to continue with the application process, she could not be employed as a Communications Officer with ESTA.

I am of the view that not allowing the complainant to continue her application   and have her relative merits for the position considered constitutes an impairment of the complainant’s equality of opportunity in employment.

7.4 Is the distinction, exclusion or preference based on the inherent requirements of the position?

7.4.1 Relevant law

Not all distinctions, exclusions or preferences are discriminatory within the meaning of the Act. Under paragraph (c) of the definition of discrimination in section 3 of the HREOC Act, a respondent does not discriminate if the distinction, exclusion or preference is based on the inherent requirements of the job.

The meaning of the phrase ‘inherent requirements of the job’ was considered by the High Court in Qantas Airways v Christie 3 and X v The Commonwealth . 4   It follows from those cases that identification of inherent requirements requires one to take into account the surrounding context of the particular position, employment or job and not merely the physical or mental capability of the employee to perform a task. Further, the inherent requirements of employment are those which are characteristic or essential to the position, as opposed to those requirements which might be described as peripheral. 5

In Qantas Airways v Christie Gaudron J suggested that:

A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with. 6

Her Honour also stated that:   

… an employer cannot create an inherent requirement . . .   by stipulating for something that is not essential or, even, by stipulating for qualifications or skills that are disproportionately high when related to the work to be done. 7

The approach taken by the courts to the inherent requirements exception is similar to that taken by the Committee of Experts in relation to the inherent requirement exception under ILO 111. The Committee has stated that to be an inherent requirement the condition imposed must be proportionate to the aim being pursued, and necessary having regard to the nature and characteristics of the job in question. 8

7.4.2 Findings

Victoria Police states that an inherent requirement of the position of Communications Officer with ESTA is that the person has the “highest standard of integrity and be of good character and reputation” and that this standard is required to be the same as that which applies to a sworn Police Officer or Police recruits.

I am of the view that this requirement is not an inherent requirement of the position of Communications Officer with ESTA. I am of the view that the position of Communications Officer with ESTA would be essentially the same if the person employed in this position were not of the same standard of integrity, character and reputation as that of a sworn Police Officer. I note that the position description for a Communications Officer supplied by ESTA (set out in 3.1 above) does not include integrity, character or reputation as an inherent requirement of the position.  

While there may be a character requirement for the position of Communications Officer, I do not consider that it is an inherent requirement that this standard be of the same high level as that required of a sworn Police Officer or Police recruits.

I consider that the standard of integrity, character and reputation for a sworn Police Officer or Police recruit is disproportionately high for the position of Communications Officer, given the different nature of the work performed by a Communications Officer and sworn Police Officer.

A sworn Police Officer is responsible for enforcing laws and regulations and making decisions in relation to the arrest or otherwise of members of the public, conducting criminal and accident investigations, guarding prisoners in police cells and maintaining the peace at demonstrations and other public events. A sworn Police Officer is also licensed to carry a firearm and is regularly placed in a position where opportunities for corruption present themselves. Further, a   sworn Police Officer, in performing their daily role does not work in close proximity with, or have the close supervision of, their superior officers.

On the other hand, the position of Communications Officer appears to be one where calls are taken by the Communications Officer in an office environment and then dispatched to various emergency response units. I note that there is no daily face to face contact with members of the public, the officer is not expected to make decisions regarding the arrest or otherwise of members of the public, has a higher level of monitoring by supervisors and is not in a position where opportunities for corruption would commonly present themselves.

I therefore consider that, whilst some character element could be an inherent requirement of the position of a Communications Officer, it is not the same as that for a sworn Police Officer but is that required in a non-policing civilian working environment. I am of the view that if a person is convicted of an offence for driving whilst under the influence of alcohol, it does not mean that they fail to meet this lower level requirement.

8. ACTIONS TAKEN BY THE RESPONDENT AS A RESULT OF THE FINDINGS

Under section 35(2 )(e) of the HREOC Act, the Commission is required to state whether the respondent has taken or is taking any action as a result of my findings.

By letter dated 6 February 2006, ESTA acknowledged the findings of the Commission and stated that:

In light of the Commissions decision, Victoria Police and ESTA are currently giving consideration to [its] Administrative Arrangements in relation to recruitment and employment requirements.

ESTA, together with Victoria Police, will inform HREOC of the outcome of these considerations when a final outcome is decided.

By letter dated 10 February 2006, Victoria Police stated as follows:

Victoria Police acknowledges the findings of the Commission in this matter and has sought advice from the relevant stakeholders, including ESTA and the Victorian Public Sector Standards Commissioner, in determining its response this finding.

Victoria Police is currently giving consideration to potential changes to the current administrative arrangements that are in place with ESTA in relation to recruitment practices.

This requires consultation with all relevant parties to the agreement and those discussions are currently occurring.

We will inform HREOC of the outcome of these discussions when a final outcome is decided.

I report accordingly to the Attorney-General.

John von Doussa QC
President
February 2006

APPENDIX ONE

Functions of the Human Rights and Equal Opportunity Commission

Part II Division 4 of the HREOC Act confers functions on the Commission in relation to equal opportunity in employment in pursuance of Australia’s international obligations under ILO 111. 9

Under sections 31(b) and 32(1 )(b) the Commission can inquire into complaints of discrimination in employment and occupation against any employer and attempt to effect a settlement. Section 8(6) of the HREOC Act provides that the President shall perform the Commission’s function of inquiring into any act or practice that may constitute discrimination as defined by the HREOC Act.  

Where conciliation is unsuccessful or is deemed inappropriate, and the Commission is of the opinion that an act or practice appears to constitute discrimination, under sections 27 and 33 of the Act, the Commission is required to provide an opportunity to the parties to make written and/or oral submissions in relation to the complaint.

Under section 35(2)(a), where, after the inquiry, the Commission finds discrimination the Commission is required to serve notice setting out the findings and the reasons for those findings. Sections 35(2 )(b) and (c) provide that the Commission may include recommendations for preventing a repetition of the act or practice and for the payment of compensation or the taking of any other action to remedy or reduce the loss or damage suffered as a result. However, the Commission does not have power to enforce its recommendations.

Where the Commission makes a finding of discrimination in employment, section 31(b )(ii) requires it to report on the matter to the Commonwealth Attorney-General, who is required to table the report in Parliament under section 46.

Discrimination in employment and occupation

Under s 3(1) of the HREOC Act discrimination means:

  1. any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute discrimination for the purposes of this HREOC Act;
  3. but does not include any distinction, exclusion or preference:
  4. in respect of a particular job based on the inherent requirements of the job; or
  5. in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

ILO 111 prohibits discrimination on certain specified grounds. 10 Those grounds are contained in subparagraph (a) of the definition of discrimination in the HREOC Act. ILO 111 also provides that ratifying States may address discrimination on additional grounds. 11 Subparagraph (b)(ii) of the definition of discrimination allows for the adoption of regulations to specify additional grounds in accordance with this provision in ILO 111. Under this power the Human Rights and Equal Opportunity Commission Regulations 1989 ( Cth) declared criminal record as a ground of discrimination for the purposes of the HREOC Act with effect from 1 January 1990. 12

It is an accepted principle in domestic law that where a statute contains language that derives directly from an international instrument, such as the HREOC Act does, it should be interpreted in accordance with the interpretation the language has been given at the international level. 13 The comments of the International Labour Conference Committee of Experts on the Application of Conventions and Recommendations (the ILO Committee of Experts) are therefore relevant to the interpretation of the HREOC Act’s definition of discrimination.

According to the Committee of Experts there are essentially three elements to the definition of discrimination in ILO 111:

  1. an objective factual element, being the existence of a distinction, exclusion or preference which effects a difference in treatment in comparison with another in the same situation;
  2. a ground on which the difference of treatment is based that is declared or prescribed;
  3. the objective result of this treatment, that is, a nullification or impairment of equality of opportunity or treatment in employment or occupation.

The ILO Committee of Experts has expressed the view that indirect discrimination is also prohibited under ILO 111. 14

The ILO Committee of Experts has also commented on the inherent requirements exception. To be an inherent requirement the condition imposed must be proportionate to the aim being pursued and must be necessary because of the very nature of the job in question. Any limitation within the context of this exception must therefore be required by characteristics of the particular job, and be in proportion to its inherent requirements. 15

The Committee of Experts has agreed that an intention to discriminate is not necessary for a finding of discrimination under ILO 111. 16

ENDNOTES

  • [1]The jurisdiction of the Commission in relation to the investigation and conciliation of complaints of discrimination in employment under the HREOC Act is set out in Appendix One.
  • [2] Human Rights and Equal Opportunity Commission Regulations 1989 ( Cth), regulation 4(a )(iii).
  • [3] (1998) 193 CLR 280. This case involved the interpretation of that term used in section 170DF(2)   of the Industrial Relations Act 1988 ( Cth).
  • [4] (1999) 200 CLR 177. This case involved the interpretation of that term used in section 15(4) of the Disability Discrimination Act 1992 ( Cth).
  • [5] (1999) 200 CLR 177, 208, [102] per Gummow and Hayne JJ (Gleeson CJ and Callinan J agreeing).
  • [6] Ibid 295, [36].
  • [7] Ibid, 294-295, [34].
  • [8] International Labour Conference, Equality in Employment and Occupation:General Survey by the Committee of Experts on the Application of Conventions and Recommendations, ILO, Geneva, 1988, 138.
  • [9] Ratified by Australia in 1973.
  • [10] Article 1(1 )(a).
  • [11] Article 1(1 )(b).
  • [12] SR 1989 407, notified in the Commonwealth of Australia Gazette on 21 December 1989.
  • [13] Koowarta v Bjelke-Petersen & Others (1981) 153 CLR 168, 265 (Brennan J); Minister for Foreign Affairs and Trade & Ors v Magno and Another (1992) 112 ALR 529, 535-6 ( Gummow J).
  • [14] International Labour Conference, Equality in Employment and Occupation: General Survey by the Committee of Experts on the Application of Conventions and Recommendations ILO, Geneva, 1988, 23.
  • [15] Ibid, 138.
  • [16] Ibid, 22.
Last updated 22 March 2006.