HREOC Report No.14

Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force

HREOC Report No.14

Contents

1. INTRODUCTION

2. THE COMPLAINT

3. PROGRESS OF THE INQUIRY

4. ORAL EVIDENCE FOR THE RESPONDENT

5. WRITTEN SUBMISSIONS OF THE PARTIES

6. FINDINGS

7. SUBMISSIONS ON RECOMMENDATIONS

8. DISCUSSION OF RECOMMENDATIONS

9. NOTICE OF FINDINGS OF THE COMMISSION

10. REASONS FOR FINDINGS

11. RECOMMENDATION

APPENDIX A: FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

1. Introduction

1.1 The Commission's jurisdiction

This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOCA"). The subject of this report is a complaint of age discrimination made by Mr Andrew Hamilton who was employed by the Commonwealth in the Australian Defence Force ("the ADF").

The inquiry into this complaint started prior to 13 April 2000 and therefore the amendments brought about by the Human Rights Legislation Amendment Act 1999 (No.1) (Cth) do not apply to it. The inquiry was undertaken and completed by Mr Chris Sidoti who was, at the relevant time, the Human Rights Commissioner. Mr Sidoti's appointment as the Human Rights Commissioner came to an end on 13 August 2000. The delay in reporting has occurred because of legal challenges made to the findings and recommendations of Mr Sidoti by the Commonwealth. This is set out in more detail at 1.4 below.

The jurisdiction of the Commission in relation to complaints of discrimination in employment and occupation was described in the Commission's first report to Parliament on complaints in this area. That description is set out in Appendix A to this report. In 1989 the Human Rights and Equal Opportunity Commission Regulations declared a number of additional grounds of discrimination for the purposes of the HREOCA with effect from 1 January 1990.[2] The subject of this Report, age discrimination, is one of those grounds.

The Commission has reported to the Attorney-General on issues concerning age discrimination in employment on a number of previous occasions, and most recently in relation to the Australian Defence Force in HRC 9. The Commission has also reported generally on age discrimination in Age Matters: A report on age discrimination, a report tabled in Parliament in June 2000. In that report, a number of recommendations for change were made, including recommendations concerning community awareness, the review of age based distinctions in Commonwealth laws and policies, and the enactment of a more rigorous and effective legal regime to prevent and remedy acts of discrimination based on age. I draw those recommendations to the attention of the Attorney-General and Parliament.

1.2 Outline of the complaint

In 1996 Mr Andrew Hamilton made a complaint alleging discrimination on the basis of his age in respect of his employment. He alleged that he was discriminated against on the ground of age by the ADF when the Promotions Board of the Royal Australian Navy ("RAN") placed him in a promotion band which meant that he had little prospect of promotion. He alleged that he had been placed in that promotion band because of the length of time that he had remaining in the RAN. This length of time was determined by the compulsory retirement age of 55 years (excluding Admirals) prescribed by the Naval Forces Regulations 1935 (Cth).

1.3 Findings and recommendations

On 20 October 1999, Mr Sidoti issued a notice of his findings and recommendations in relation to the complaint under section 35(2) of the HREOCA. He found that the act complained of by the complainant, namely that the respondent placed him in promotion Band D at the June 1995 Promotions Board because of the length of time he had remaining in the RAN, constituted discrimination on the ground of age. He recommended that the respondent should pay to the complainant the sum of $20,000.00 being damages for nullifying his opportunity to be properly considered for promotion, as well as for humiliation, loss of dignity and injury to feelings.

1.4 Actions taken by the respondent as a result of the findings and recommendations made by Commissioner Sidoti

Under section 35(2)(e) of the HREOCA the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of its findings and recommendations.

The ADF challenged Mr Sidoti's findings by way of an application for an order for review in the Federal Court. In Commonwealth v Human Rights and Equal Opportunity Commission and Hamilton [2000] FCA 1854, Justice Katz upheld Mr Sidoti's decision in relation to Mr Hamilton's complaint. The ADF filed a notice of appeal in the full Court of the Federal Court in respect of the decision of Justice Katz. However, in May 2001 the ADF discontinued that appeal.

Following the conclusion of the Federal Court proceedings, the Commission wrote to the legal representative of the ADF to seek its advice as to what action it had taken or proposed to take as a result of Mr Sidoti's findings and recommendations. In a letter to the Commission dated 24 September 2001, Mr Richard Miller, Director of Litigation of the Department of Defence, advised as follows:

Ms Dale Watson of the Australian Government Solicitor's office, Sydney, has referred to me for reply your letter to her dated 10 September 2001, concerning the report you are preparing for the Attorney-General in accordance with section 31(b) of the Human Rights and Equal Opportunity Commission Act 1986. You are including in that report notice of the recommendation made by Commissioner Sidoti on 20 October 1999. You have requested advice of the action the ADF (Commonwealth) will take in relation to the recommendation.

On 20 October 1999, Commissioner Sidoti recommended that the Commonwealth of Australia (Australian Defence Force) should pay to the complainant, Andrew Hamilton, the sum of $20,000. The Commonwealth is proceeding to honour the Commissioner's recommendation and is negotiating with Mr Hamilton the basis upon which he will receive the payment of $20,000.

The Commission is now in a position to report to the Attorney-General as required by section 31(b)(ii) of the HREOCA.

2. The complaint

2.1 The nature of the complaint

On 11 July 1996 the Commission received a complaint under section 32 of the HREOCA from Mr Hamilton who was a Lieutenant Commander at the time. Mr Hamilton alleged that that he was discriminated against on the ground of age by the ADF when the Promotion Board of the RAN placed him in a promotion band which meant that he had little prospect of promotion.

The Promotion Board's consideration of the potential of a Lieutenant Commander seeking appointment as a Commander takes place against the background of a compulsory retirement age. Section 17 of the Naval Defence Act 1910 (Cth) provides that, subject to a Ministerial power of extension in special cases, compulsory retirement ages of members of the RAN shall be prescribed. The compulsory retirement ages for officers is prescribed by regulation 102 of the Naval Forces Regulations 1935 (Cth). The compulsory retirement age for senior officers, excluding Admirals, is 55 years.

The complainant had been a Lieutenant Commander in the RAN for ten years and was eligible for promotion to the rank of Commander. His primary qualification was that of a Supply Officer. At the time he lodged the complaint he was 48 years of age. The complainant had discharged duties normally performed by a Commander on a number of occasions, including a period as Officer in Charge of the Supply School.

In reports to the Promotion Board, known as PR5 reports, the complainant's superior officers consistently praised his performance, presentation and attitude. The aggregate scores in his PR5 reports were in the same range as those obtained by candidates who were offered promotions.

When agreement is reached on the selections, the Promotion Board produces a list of recommended promotees. The list is submitted to the Chief of Navy for approval. The Promotion Board also allocates all unsuccessful eligible candidates to promotion bands for the purpose of providing each officer with advice as to their assessed competitiveness. The following is a summary of these promotion bands:

  • Band A - Highly competitive. Promotion very likely. Assuming that assessed potential remains high and outstanding performance is sustained, relative competitiveness is very likely.
  • Band B - Competitive. Promotion probable. Assuming that assessed potential remains high and excellent performance is sustained, relative competitiveness should improve and promotion is probable.
  • Band C - Competitive. Promotion possible. Promotion is possible, assuming that assessed potential is high and performance is sustained or improved. Promotion chances are sensitive to numbers being promoted and the individual's performance in a very closely packed field. Officers who have just entered the Promotion Zone will normally be placed in this band until their trend for competitiveness is further assessed at subsequent boards.
  • Band D - Competitive. Promotion prospects reduced. Competitiveness and potential for promotion to Commander and higher ranks is waning relative to peers. This level of competitiveness is also sensitive to numbers being promoted and the individual's performance in a very closely packed field.

After the December 1993 Promotion Board, the complainant requested copies of all of his PR5 reports. The following comments appeared in what is known as section 6 of his PR5 reports dated 30 March 1993, 30 September 1993 and 29 March 1994:

30 March 1993 - A most talented and professional Supply officer, LCDR Hamilton is considered highly competitive for promotion, but he has many talented, younger peers.

30 September 1993 - He is considered highly competitive for promotion but faces strong competition from his younger peers.

29 March 1994 - I have no doubt of his ability to perform well at the Commander level but he faces strong competition from his younger peers.

The complainant was concerned about these comments and sought an explanation for them. A response from Captain Kennedy of the Directorate of Naval Officer's Postings ("DNOP") in a letter dated 21 July 1994 included the following:

I must stress from the outset, that from a DNOP perspective, there is no age based "window of opportunity" or zone "upper limit" for selection for promotion based on age. Selection for promotion is based solely on an officer's performance and the officer's potential in higher ranks in competition with his/her peers. The only limitation based on age which relates to promotion is that which seeks to ensure officers who are selected for promotion will render at least 12 months effective service in the new rank before attaining retirement age.

With regard to the Section 6 comments of your Senior Officer on your last three performance reports, I do not believe the statements therein to be in any way discriminatory. In truth, I believe them to be informed comment from a voting member of the Promotion Board. In each case, your Section 6 officer has considered you highly competitive for promotion. His observation relating to competition from younger peers is simply fact. The average age of LCDRs selected for promotion to CMDR on the December 1993 and June 1994 Promotion Board was 37.2 and 38.1 years respectively. However, you should also realise that on the June 1994 Promotion Board, an officer aged 51 was selected for promotion to CMDR. If you remain concerned about the comments of your Senior Officer you should seek to arrange a personal interview with him to discuss the matter further.

After the December 1994 Promotion Board meeting, the complainant was placed in Band C. The complainant lodged an application for redress of grievance. A response from Rear Admiral Oxenbould in a letter dated 15 March 1995 included the following:

At the December 94 Promotion Board, the Promotion Board members considered 370 Lieutenant Commanders who were in zone and eligible for promotion. The Board assessed you to be in Band C and competitive for promotion at this stage. Your promotion prospects remain possible as long as your assessed potential remains high and your current performance is maintained or improves. This will be reviewed at each Promotion Board.

At the June 1995 Promotion Board meeting, the complainant was placed in Promotion Band D. He was 47 years of age at the time. There had been no apparent decline in the standard of his work. The complainant claims that he was placed in a lower band than that of younger contemporaries with similar marks and equally strong recommendations for promotion.

The complainant lodged another application for redress of grievance after the June 1995 Promotions Board. Rear Admiral Forrest responded in a letter dated 8 August 1995 that included the following:

At the Promotion Board held on 24 June 1995, the Board members considered 340 Lieutenant Commanders who were in zone and eligible for promotion. The Board's assessment of you was that although you remain eligible for promotion, your competitiveness for higher rank is now reducing relative to your peers, primarily because of the length of time you have remaining in the Service. You were allocated Band D. For Lieutenant Commanders, 'potential for promotion' includes potential for service in the rank of Commander and Captain. Whilst there is no doubt you could perform very well in the rank of Commander, particularly in your specialist field, your potential for higher ranks is at best slight. It is the latter aspect in particular which is reducing your competitiveness for promotion relative to your peers.

You should be aware that the Board, in making the above assessment, has considered you against a large number of your peers. It is important that you understand that this assessment does not in any way diminish your most worthwhile contribution to the RAN. It is certainly not a criticism of your performance. Rather, it is a reflection of the very competitive environment in which you are vying for promotion.

In a Naval Personnel Division Minute dated 26 June 1996, Rear Admiral Forrest responded specifically to the Section 6 comments in the PR5 reports outlined above. He stated:

I have accepted that the subject comments provide a perception that LCDR Hamilton is insufficiently competitive for selection because of the number of younger officers competing with him, which may constitute discrimination as defined by the Human Rights and Equal Opportunity Commission Act 1986. Accordingly, I have determined that LCDR Hamilton's Blue Jacket be appended with a formal notation, to the effect that the Section 6 comments "…be discounted and not relied upon for any administrative action or decision"…I offer my personal apology to LCDR Hamilton for the manner in which those Section 6 comments were expressed".

In correspondence to the Commission, Mr Hamilton summarised the main aspects of his complaint as follows:

  • The RAN discriminated against him on the ground of his age in respect of his promotional prospects in the RAN.
  • The only significant difference between those gaining promotion to the rank of Commander and the complainant was age. This was reinforced in the complainant's promotion reports completed by senior officers since he was placed on 'standby' for promotion in 1994.
  • The complainant had a legitimate expectation that he would be promoted to Commander. His legitimate expectation arose out of the fact that he was informed by the DNOP that he had been placed on the 'standby' promotion list following the December 1994 Promotion Board and was assured that, provided he maintained or improved his performance, he could reasonably expect to be promoted at the next Promotion Board held in June 1995. The complainant submitted that in view of his continued superior performance over that period, and being unaware of anything else that might have adversely affected his promotion chances, his expectation of promotion was reasonably held.
  • The complainant had no opportunity to make submissions in the short time that it took for him to be relegated from the 'standby' promotion list to Promotion Band D. He submitted his redress of grievance after the damage to his career had already occurred.
  • The complainant believed that his concerns were well founded given that he believed that action was being taken to exempt the ADF from the age provisions of the HREOCA.
  • The Promotion Board's decision not to recommend the complainant for promotion was based on irrelevant considerations such as his age and diminished prospects instead of relevant factors such as his proven work performance, training and breadth of experience. The reason he was relegated to Promotion Band D is that he only had eight years remaining until reaching the RAN's compulsory retirement age of 55 years.

2.2 The response

The respondent provided a written response on 26 February 1997. This letter attached a Navy Headquarters Minute dated 20 February 1997 which is summarised as follows.

2.2.1 Promotion selection process

  • The selection of RAN officers for promotion from the rank of Lieutenant Commander to Commander is made by a Promotion Board comprised of seven Admirals. Until June 1997 the Board was conducted on a biannual basis. Thereafter it has been convened on an annual basis. The Board undertakes its business in a 'closed door' session where all discussion is without prejudice.
  • Prior to the Promotion Board convening, the DNOP, in conjunction with the Director of Naval Personnel Management, establishes the structural vacancies at the Commander level. Vacancies are identified by Primary Qualification. Usually there are a small number of 'pool' vacancies which may be filled by and are open to officers of any Primary Qualification. The vacancy list is submitted to the Chief of Navy for approval prior to it being furnished to the Promotion Board.
  • Promotion Board members are given a vacancy list as well as comparative data on the numeric assessments of performance for all eligible officers. Board members are cautioned against placing too great a reliance on the scores in isolation.
  • In preparing for the sitting of the Promotion Board, members have full access to the complete reporting history of all Lieutenant Commanders eligible, on the basis of rank seniority, for promotion. Each Board member completes a voting slip short-listing, in order of merit, the officers considered most suited to and deserving of promotion based on their potential to serve in the higher rank. The votes of the various Board members are collated and presented in spreadsheet format for use by the Board when it formally meets.
  • When agreement is reached on the selections, the Promotion Board produces a list of recommended promotees. The list is submitted to the Chief of Navy for approval. The Promotion Board also allocates all unsuccessful eligible candidates to promotion bands for the purpose of providing each officer with advice of their assessed competitiveness.

2.2.2 Promotion eligibility

RAN policy guidance on eligibility for promotion to Commander requires that an officer:

(a) will have attained a minimum of four years seniority in the rank of Lieutenant Commander by the date promotion to Commander is effected;
(b) has not requested to either resign his/her Commission or transfer from the Permanent Naval Forces to the Royal Australian Naval Reserve;
(c) has been given a 'Yes' promotion recommendation on his/her most recent performance report;
(d) be able to render a minimum of 12 months effective service after promotion before attaining retirement age; and
(e) be medically fit.

2.2.3 Promotion selection criteria

Other than these eligibility requirements, there are no published promotion selection criteria. In selecting the officers to be promoted, the Promotion Board takes into account many factors which indicate an officer's potential to serve in the higher rank, including:

(a) reported performance in the present rank;
(b) officer qualities and general competencies;
(c) competence and currency in Primary Qualification;
(d) perceived degree of difficulty and other demands of present and past postings;
(e) trends in reported performance;
(f) range of employment options at Commander rank;
(g) potential to progress to Captain rank and higher;
(h) academic and other formal qualifications and skills; and
(i) PR5 Section 6 comments relating to peer ranking.

2.2.4 Longer term career potential

According to the Naval Headquarters Minute, the long-term career potential of an individual is a particularly important consideration in selecting naval officers for promotion. The unique military skills and competencies that are required of senior uniformed officers preclude the RAN from laterally recruiting from the civilian sector directly to the more senior ranks. The RAN must "grow" its own senior officers. Although the issue was under review within the Headquarters of the ADF, the present system of compulsory retirement ages can influence the career progression of officers. At most rank levels there is a specified minimum period of service to ensure the development of the requisite competencies and experience base, which must be completed before an officer is eligible for promotion. This requirement, in conjunction with the age cap imposed by compulsory retirement ages, results in a number of age thresholds above which an officer's potential to achieve and render a reasonable period at senior rank markedly declines.

The respondent provided a table that shows selective promotions from Commander to Flag Rank and stated that this demonstrates the time needed to "grow" senior Naval officers. The table shows the average ages on promotion of Commanders and Captains between 1 January 1992 and 1 January 1997 and for Commodores and Rear Admirals based on officers presently serving in rank. The average age on promotion ranges from 37 and a half years for Commanders to 49 years for Rear Admirals. The average length of seniority in the preceding rank ranges from 5 years for Rear Admirals to seven years for Captains.

2.2.5 Promotion board records

There are no records maintained of the Promotion Board's detailed deliberations and discussion. Only two documentary records constitute the Board's decisions, namely the list of officers selected for promotion and the banding of unsuccessful candidates.

The respondent provided a table which provides the statistics of promotees from the rank of Lieutenant Commander to Commander from June 1991 to June 1996. It shows a competitive field with the number of people promoted every six months and the age range on promotion as follows:

Board promotion Date promoted Number promoted Age range on promotion
June 1991 1 January 1992 11 33 - 39
Dec 1991 1 July 1992 22 32 - 45
June 1992 1 January 1993 14 33 - 45
Dec 1992 1 July 1993 13 35 - 44
June 1993 1 January 1994 13 34 - 52
Dec 1993 1 July 1994 20 33 - 49
June 1994 1 January 1995 15 33 - 51
Dec 1994 1 July 1995 19 34 - 45
June 1995 1 January 1996 16 34 - 50
Dec 1995 1 July 1996 17 35 - 41
June 1996 1 January 1997 17 34 - 50
 

The table also shows that the average length of seniority in the rank of Lieutenant Commander before being promoted to Commander ranged from 5 and three quarter years to 7 years. It also shows that, in the 11 Promotion Boards from June 1991 to June 1996, 8 people out of the total number of 177 people promoted had a date of birth prior to 1 May 1948 (the complainant's birth date).

2.2.6 Promotion Board feedback

The provision of formal written advice to Lieutenant Commanders on their assessed competitiveness for promotion commenced after the December 1994 Promotion Board. The respondent provided details of the number of unsuccessful Lieutenant Commanders from the December 1994 Promotion Board to the December 1996 Promotion Board as well as their allocation to bands. This shows that 1% of Lieutenant Commanders were consistently placed in Band A, 4 to 6% in Band B, 61 to 67% in Band C, and 27 to 32% in Band D. In the June 1995 Promotion Board, out of 323 officers considered for promotion, 3 were placed in Band A, 18 in Band B, 216 in Band C and 86 in Band D.

2.2.7 Lieutenant Commander Hamilton's competitiveness for promotion

A précis of the complainant's competitiveness at the Promotion Boards against the supply targets from June 1994 was provided as follows:

(a) June 1994. Two Supply Officers selected against one supply and two pool targets. LCDR Hamilton received votes but was not selected.
(b) December 1994. Two Supply Officers were selected against one supply and one pool target. LCDR Hamilton received votes and was one of two supply reserves.
(c) June 1995. Three Supply Officers were selected against one supply and two pool targets. LCDR Hamilton received votes but was not selected.
(d) December 1995. Two Supply Officers were selected against one supply and two pool targets. LCDR Hamilton received votes but was not selected.
(e) June 1996. Two Supply Officers were selected against two supply and two pool targets. LCDR Hamilton did not receive any votes.
(f) December 1996. One Supply Officer was selected against a supply target of one. LCDR Hamilton did not receive any votes.

The complainant was advised that his allocation to Band C after the December 1994 Promotion Board stemmed largely from the disproportionate number of Supply Officers assessed in the top thirty or so candidates for promotion to Commander.

2.2.8 Comments on Lieutenant Commander Hamilton's allegation of discrimination

The respondent submitted that there are a wide range of considerations that influence competitiveness for promotion. As officers of greater age than the complainant had been selected for promotion to Commander, it was not possible to attribute the decline in competitiveness solely to his age. The respondent also noted that the complainant's competitiveness peaked at the December 1994 Promotion Board which was after the three PR5 reports containing the remarks on age which were of particular concern to him.

2.2.9 Compliance with the HREOCA and ILO 111

The respondent advised that since December 1995 it has provided advice to Promotion Board members in a document entitled "Reporting and Promotion System - Legislative Considerations" dated 1 December 1995. The section of the advice relating to age is as follows:

There is a definite perception by some members of the officer community that age is a barrier to promotion. Reference to age and promotion decisions based on age is a contentious issue, and one that cannot easily be resolved by referring to legislation. Indeed, it would appear unnecessary to mention age in a report, considering this may be easily calculated from the officer's date of birth.

Whether or not age should be used in promotion decisions is another matter. The Navy may encounter problems justifying promotion decisions in which the officer's age is a factor. A compulsory retiring age of 55 years provides assistance with this justification if the officer is unable to complete twelve months in the next rank before retiring. However, it is difficult to justify using age as a deciding factor in the non-promotion of an officer who could not reach the rank beyond the next before retirement. Arguing that this approach is necessary to maintain the Command structure is counterbalanced by the reality that the Navy does not guarantee officers promotion beyond the next rank.

Taking account of the absence of specific legislation and Defence Instructions, it appears to be within the Navy's power to use age as a deciding factor in promotion. However, this approach goes outside current trends in the public and private spheres, creating the inherent risk of personnel representing grievances to the Merit Protection and Review Agency, the Ombudsman, the Administrative Appeals Tribunal, the Human Rights and Equal Opportunity Commission and the Australian Armed Forces Federation. The Glenn review may also have a future impact in this area, recommending that the ADF should not be exempt from any future Age Discrimination legislation.

2.3 Conciliation

Attempts by the Commission to conciliate this complaint were unsuccessful.

3. Progress of the inquiry

3.1 Course of the inquiry

As a result of inquiries and investigation into this complaint, Mr Sidoti formed the preliminary opinion that the act complained of by the complainant constituted discrimination on the basis of age.

Pursuant to sections 33 and 27 of the HREOCA he invited the respondent to make submissions orally or in writing or both in relation to that act. The respondent elected to make oral submissions in addition to written submissions.

On 1 February 1999 Mr Sidoti convened the inquiry in Sydney. The respondent called one witness, Captain Raydon William Gates, to give evidence. The complainant participated by telephone.

At the conclusion of the oral hearing, Mr Sidoti directed that the transcript was to be provided to the parties and they were then to provide further written submissions. This included submissions on the recommendations that should be made were the respondent to be found liable. Both parties provided written submissions and these submissions are summarised at section 5 below.

3.2 Statement of issues

On 20 March 1998 Mr Sidoti directed that the respondent was to provide the Commission with a statement of the issues in contention. The respondent provided these on 26 November 1998 as follows:

(a) Whether, by not promoting the applicant as a result of the Promotions Boards held in March 1993, August 1993, March 1994, August 1994, December 1994, March 1995 and June 1995, the respondent engaged in an act or acts of discrimination on the ground of age against the complainant?

(b) In order for question (a) to be answered in the affirmative, the following question must also be answered in the affirmative:

Whether the respondent has engaged in an act which was based on any distinction, exclusion or preference on the ground of age which nullified or impaired the complainant's equality of opportunity or treatment in employment or occupation?

(c) If both questions (a) and (b) have been answered in the affirmative, was the distinction, exclusion or preference based on the inherent requirements of the job?

(d) Whether, by enforcing a policy of not promoting officers who have little or no chance of being promoted further, the respondent has engaged in a practice constituting discrimination on the ground of age?

(e) In order for question (d) to be answered in the affirmative, the following question must also be answered in the affirmative:

Whether the respondent has engaged in a practice which was based on a distinction, exclusion or preference on the ground of age which nullifies or impairs equality of opportunity or treatment in employment or occupation?

(f) If both questions (d) and (e) have been answered in the affirmative, was the distinction, exclusion or preference based on the inherent requirements of the job?

(g) Is the potential to be promoted beyond the rank of Commander an inherent requirement of the position of Commander in the Royal Australian Navy?

Having heard no objection from the complainant, Mr Sidoti considered this a useful guide to the matters in issue in this inquiry.

4. Oral evidence for the respondent

The respondent called Captain Raydon William Gates as a witness. Captain Gates was the Director of Naval Officers Postings in the RAN. He described himself as being, in effect, the Human Resources Manager for the approximate 3200 officers in the RAN.

The following is a summary of the major points arising from Captain Gates' evidence:

  • Captain Gates gave evidence concerning the general practice and procedure of Promotion Boards within the RAN. This largely confirmed the information provided by the respondent in its letter to the Commission dated 26 February 1997 outlined above.
  • The Promotion Board process is highly competitive. Captain Gates stated that, in the case of promotion from Lieutenant Commander to Commander, around 17 positions might have to be filled. Of those positions it may be that there are only two positions requiring supply officers to fill vacancies in the rank of Commander. Promotion is therefore very tight. Captain Gates estimated that there is about a five percent chance of promotion every six months.
  • Captain Gates discussed the banding system in general. He confirmed that the RAN, as a general rule, looks at a person's potential to perform in the next rank and possibly the rank beyond when it considers promotion potential. The reason for this is that the RAN requires a pool of officers to select from for its higher ranks. It selects people who will stay in the pool and who can be eligible for the next rank as well prior to the compulsory retirement age of 55 years.
  • Captain Gates stated that about one third of people in rank will be promoted over time. There are currently serving in the RAN approximately 700 Lieutenant Commanders of whom 340 are in zone at any one time, leading to 300 Commanders, 70 Captains, 25 Commodores and six or seven Admirals.
  • Captain Gates gave evidence that the RAN looks to have "a young, vibrant service that can perform in conflict". It needs "people to be of an age that the public will understand are out there in their defence". It "needs people at sea who are younger, if not fitter, to be out there at sea doing the job". He stated that the RAN is looking for a workforce which has a "youthful look".
  • Captain Gates gave evidence in relation to the PR5 reports concerning LCDR Hamilton. While Captain Gates was not present at the deliberations of the Promotion Board, he gave evidence on the basis of his interpretation of the PR5 reports and the raw scores given to candidates for promotion. Captain Gates was of the view that LCDR Hamilton's performance was strong for the period that he was being considered for promotion. However in straight competition he was not the strongest applicant. Approximately 340 people were in the zone competing for promotion for, at the most, three positions as supply officers and in his view LCDR Hamilton was not considered as competitive as other applicants.
  • He suggested that LCDR Hamilton's position as Supply Officer was not a particularly difficult one and could have been done by other people. He notes a comment made in one of the PR5 reports that "there are cleverer people doing more complex jobs" and said that this may have been one of the reasons why LCDR Hamilton was not given a higher grade.
  • Captain Gates gave evidence about the statistics arising out of the Promotion Boards since June 1993. These indicated that a very small number of people are promoted. He indicated that since the June 1993 Board 13, 20, 15 and 19 people had been promoted every six months. The ages of people who were promoted in the June 1993 Board ranged from 34 to 52 years with an average age of 40. The ages of people who were promoted in subsequent Boards ranged from 33 to 49, 33 to 51, 34 to 45, and 34 to 50. The average length of time that people were in rank before they were promoted was approximately six and a half to six and three-quarters years. This works out an average of being in front of the Promotion Board about seven times.
  • Captain Gates said that in LCDR Hamilton's case his length of seniority and time in rank was starting to count against him. This was despite his excellent reports which would be expected by the Admirals at that stage. He was in competition with his peers and there were always one or two with better potential than LCDR Hamilton.
  • Captain Gates said that the complainant was placed in Band D because of the length of time he had remaining in the service.

5. Written submissions of the parties

5.1 Submission of the complainant

After being provided with the transcript and exhibits the complainant made further submissions by letter dated 18 March 1999. These included the following:

  • The complainant was well aware that promotion is not a reward or right in the RAN. Yet while the scores and commentary in his PR5 reports remained at a superior level, his Promotion Board feedback steadily declined with each passing year. The complainant was of the view that, as the only changing variable was his age, it was that factor alone that denied him promotion.
  • The feedback provided by Rear Admiral Forrest in his letter dated 8 August 1995 after the June 1995 Promotions Board made it clear that Promotion Boards definitely, rather than possibly, take into consideration an officer's potential in the rank beyond.
  • There were 86 Lieutenant Commanders in Band D following the June 1995 Promotion Board, including the complainant. The complainant submitted that younger contemporaries with similar marks and equally strong recommendations for promotion were either promoted or allocated to Bands A or B.
  • The complainant referred to the argument put by the respondent that the RAN must maintain a large pool of relatively young officers at Commander and Captain level from which to promote future Commanders and Admirals. He noted that for this argument to be sustained, the RAN should be able to demonstrate that, if officers were promoted to Commander and Captain without reference to age as a criterion, then there would be so many officers who would reach compulsory retirement age while in these ranks that the "Commander and Admiral well would run dry" and the promotion system would be thwarted.

5.2 Submission of the respondent

In its written submissions of 7 May 1999, the respondent contended as follows:

  • The compulsory retirement ages for senior officers in the RAN are effected by section 17 of the Naval Defence Act 1910 and regulation 102 of the Naval Forces Regulations 1935. These are not "acts" or "practices" within the meaning of the HREOCA and therefore cannot be made the subject of an inquiry under section 31(b) of the HREOCA: Secretary, Department of Defence v Human Rights and Equal Opportunity Commission [1997] 960 FCA, 18 September 1997, Branson J.
  • The Promotion Board's consideration of the potential of an officer seeking appointment as a Commander to progress to the rank of Captain and higher ranks takes place against the background of these compulsory retirement ages imposed by statute.
  • This is not a case in which age is used as a proxy for ability nor is it a case in which a person is stereotyped by reference to age or a characteristic of age. It is a case in which a criterion other than age is applied. The application of the criterion has a disparate impact on persons of different ages by reason of an external constraint.
  • The result might in another context be labelled "indirect discrimination" (eg Waters v Public Transport Corporation (1991) 173 CLR 349 at 357) but it is not "discrimination" within the meaning of the HREOCA.
  • The requirement of paragraph (b) of the definition of "discrimination" in section 3 of the HREOCA and regulation 4 of the Human Rights and Equal Opportunity Regulations that the relevant distinction or preference be "made on the ground of age" looks to whether or not age is a material factor in performing the relevant act or undertaking the relevant practice.
  • The requirement should be interpreted consistently with the reference in section 9 of the Racial Discrimination Act 1975 to a distinction or preference "based on race" which has been held not to be attracted "unless an act…is done which in fact produced a distinction based on race…and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction": ALRM v South Australia (1995) EOC 92-759 at 78,634; Human Rights and Equal Opportunity Commission v Mount Isa Mine Ltd (1993) 46 FCR 301 at 321-323; Australian Medical Council v Wilson (1996) 68 FCR 46 at 58; Macedonian Teachers Association of Victoria v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 at 518-519.
  • The letter of 8 August 1995 informing LCDR Hamilton that he had been allocated to Band D stated that his competitiveness for higher rank was reducing relative to his peers because of the length of time remaining in the service and not his age. That was a correct statement of the relevant criterion, being a criterion other than age.
  • The references in earlier PR5 reports to LCDR Hamilton facing strong competition from younger officers were statements of opinion put to the Promotion Board. They should not to be interpreted as suggesting that the criteria actually applied by the Promotion Board in making the earlier decisions not to promote LCDR Hamilton took age into account as a material factor.
  • Adopting the statements of Brennan CJ in Qantas Airways Ltd v Christie (1998) 152 ALR 365 at 366 and Drummond J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 529, the requirement that a Commander have the potential to progress to the rank of Captain or beyond is an inherent requirement of the job of being a Commander having regard to the organisational structure of the Navy and its operational requirements.

5.3 Submission in response by complainant

The complainant made further submissions on 17 May 1999. While he said he understood the rationale behind the practice of the Promotion Board to assess suitability for promotion on the basis of potential for promotion, he suggested pitfalls associated with this practice. These included losing superior performers like the complainant and not ensuring retention of those officers assessed as having greater potential for serving in higher ranks.

6. Findings

6.1 Elements of Discrimination

Under section 3(1) of the HREOCA, discrimination is defined as follows:

'discrimination' means:

(a) 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
(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act,

but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job; or
(d) 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.

As previously noted, regulation 4(a) of the Human Rights and Equal Opportunity Commission Regulations 1989 declares that "any distinction, exclusion or preference made on the ground of age" constitutes discrimination for the purposes of the HREOCA.

In deciding whether the matters complained of constitute discrimination within the terms of the HREOCA, Mr Sidoti considered the following issues:

  • whether there was an act or practice under the HREOCA.
  • whether the act or practice arose in employment or occupation.
  • whether there was a distinction, exclusion or preference on the ground of age.
  • whether the distinction, exclusion or preference had the effect of nullifying or impairing equality of opportunity or treatment.
  • whether the distinction, exclusion or preference in respect of the particular job was based on the inherent requirements of the job.

6.2 Whether there was an act or practice

The respondent did not challenge the existence of a relevant act. In considering whether there was an act which could amount to discrimination by the respondent on the ground of age, Mr Sidoti made the following findings:

  • The complainant was eligible for promotion at the Promotion Boards held in June and December in each year from 1993 to 1996 inclusive.
  • After the June 1995 Promotion Board the complainant was not promoted and was placed in Promotion Band D which meant that there was very little prospect of promotion.
  • In a letter from Rear Admiral Forrest dated 8 August 1995, the complainant was informed that his competitiveness for higher rank was reducing relative to his peers because of the length of time he had remaining in the RAN and that his potential for higher rank was, at best, slight.
  • The compulsory retirement age in the RAN for senior officers excluding Admirals is 55 years.
  • The complainant was 47 years of age at the time of the June 1995 Promotion Board.

He found that in placing the complainant in Promotion Band D after the June 1995 Promotion Board, on the basis that his competitiveness for higher rank was reducing relative to his peers because of the length of time he had remaining in the RAN, the respondent engaged in an act which could amount to discrimination.

Mr Sidoti considered the respondent's argument that it is common ground that the practice of the Promotion Board in assessing the suitability of an officer for promotion to the rank of Commander is to take into account the potential of an officer to progress to the rank of Captain and to higher ranks. The respondent also stated that the potential of an officer to progress to a higher rank is referable in part to the length of time the officer has remaining in the service before compulsory retirement. Mr Sidoti did not consider it necessary to make a finding as to whether this amounted to a practice within the meaning of the legislation as he had already found that the act complained of could be discriminatory.

6.3 Whether the act arose in employment or occupation

As there was no issue raised as to whether the act complained of arose in employment or occupation, Mr Sidoti was satisfied that the act complained of arose in employment or occupation.

6.4 Whether there was a distinction, exclusion or preference on the ground of age

The complainant was required to establish that the treatment he experienced was a consequence of a distinction, exclusion or preference made on the ground of age. After the June 1995 Promotion Board, the complainant was not promoted and was placed in promotion Band D. The complainant was advised in a letter from Rear Admiral Forrest dated 8 August 1995 that his competitiveness for higher rank was reducing relative to his peers because of the length of time he had remaining in the RAN and that his potential for higher ranks was, at best, slight.

The respondent argued that a decision based on the length of time an officer has remaining in the service is not in itself a distinction made on the ground of age. It produces differences between persons of different ages only because of the compulsory retirement age. The respondent stated that the application of the criterion has a disparate impact on persons of different ages by reason of an external constraint. It stated that the result might in another context be labelled indirect discrimination but argued that it is not discrimination within the meaning of section 3 of the HREOCA.

Mr Sidoti stated as follows:

With respect, I disagree with the respondent in this regard. The wording of paragraph (b) of the definition of 'discrimination' in section 3 of the Act refers to 'any other distinction, exclusion or preference that (i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation…'.

The wording of the definition clearly encompasses those rules, practices or policies which on their face appear to be neutral but which in effect have a disproportionate impact on the group of which the complainant is a member, that is, those practices which are fair in form and intention but discriminatory in impact and outcome: The Secretary of the Department of Foreign Affairs & Trade v Styles & Anor (1989) EOC 92-265 at p 77,636; Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at p 175.

In addition, Part II Division 4 of the Act confers functions on the Human Rights and Equal Opportunity Commission in relation to equal opportunity in employment in pursuance of Australia's international obligations under the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 ("ILO Convention 111").[3]

It is an accepted principle in domestic law that where a statute contains language that derives directly from an international instrument, such as the Act, it should be interpreted in accordance with the meaning it has been given at the international level.[4] The comments of the International Labour Conference Committee of Experts on the Application of Conventions and Recommendations ("the Committee of Experts") are relevant to the interpretation of the Act's definition of discrimination.

Article 1, paragraph 1(a) of ILO Convention 111 defines discrimination as "any distinction, exclusion or preference (based on certain grounds) which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation".

According to the Committee of Experts this definition contains essentially three elements:

1. a factual element (the existence of a distinction, exclusion or preference originating in an act or omission) which constitutes a difference in treatment
2. a ground on which the difference of treatment is based and
3. the objective result of this difference in treatment (the nullification or impairment of equality of opportunity or treatment). [5]

Further the Committee of Experts has expressed the view that through this broad definition ILO Convention 111 covers all of the situations which may affect the equality of opportunity and treatment that it is to promote and that any discrimination - in law or in practice, direct or indirect - falls within its scope. [6]

The Committee of Experts describes indirect discrimination as referring to "apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of [certain] characteristics … and is not closely related to the inherent requirements of the job".[7]

There is also support in other jurisdictions for the view that a broad construction should be given to statutes containing general prohibitions of discrimination so as to cover indirect discrimination as well. [8] In Australian Medical Council v Wilson, Heerey J discussed the historical prohibitions of indirect discrimination. [9] He referred to United States authorities such as section 703(a)(ii) of the United States Civil Rights Act 1964 and the case of Griggs v Duke Power Co (1971) 401 US 424 which recognised that legislation containing general prohibitions of discrimination covers both direct and indirect discrimination, described respectively as 'disparate treatment' and 'disparate impact'.

As Deane and Gaudron JJ discuss in Australian Iron & Steel Pty Ltd v Banovic [10], the United States approach has been to take a general prohibition of discrimination "because of" race etc and apply it to "facially neutral" criteria or standards which have a discriminatory effect. I am of the view that the same approach should be taken in relation to the definition of discrimination contained in s.3 of the Act currently under consideration.

I am satisfied in the present case that a decision based on the length of time an officer has remaining in the service in light of the compulsory retirement age is a distinction, exclusion or preference on the ground of age.

6.5 Whether the distinction, exclusion or preference had the effect of nullifying or impairing equality of opportunity or treatment

For an act or practice to be discriminatory, the HREOCA requires the complainant to show that the distinction, exclusion or preference has had "the effect of nullifying or impairing equality of opportunity or treatment".

The complainant was advised in a letter from Rear Admiral Forrest dated 8 August 1995 that his competitiveness for higher rank was reducing relative to his peers because of the length of time he had remaining in the RAN and that his potential for higher ranks was, at best, slight. He was placed in Promotion Band D as a result which meant that his promotion prospects were significantly reduced.

Mr Sidoti was satisfied that the decision to place the complainant in Band D because of the length of time he had remaining in the RAN was a distinction made on the basis of age which nullified or impaired the complainant's equality of opportunity or treatment.

 

6.6 Whether the distinction, exclusion or preference was based on the inherent requirements of the job

Not all distinctions, exclusions or preferences are discriminatory within the meaning of the HREOCA. An employer may legitimately make a distinction, exclusion or preference on the ground of age where this distinction, exclusion or preference is based on the inherent requirements of the job.

The respondent argued that the potential of an officer to progress to a higher rank is a distinction or preference based on the inherent requirements of the job. It stated that the requirement that a Commander have the potential to progress to a rank of Captain or beyond is an inherent requirement of the job of being a Commander having regard to the organisational structure of the Navy and its operational requirements. It described the need of the RAN to develop its pool of potential senior officers to perform in a time of crisis as an obvious operational imperative and stated that that pool must be developed within the constraints imposed by the compulsory retirement age.

What may constitute an inherent requirement has been the subject of much judicial analysis. [11]

The courts have attempted to strike a balance between the operational and business requirements of employers and their obligation to avoid impermissibly discriminating against employees. The majority of the High Court in Christie were of the view that the employer's manner of organisation could be relevant to determining what constituted an inherent requirement. Brennan J said (at p. 366):

The question of whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a determination of the means by which the inherent nature of a requirement is determined. The experience of the courts in this country in applying anti-discrimination legislation will be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.

A similar approach was taken by the Full Federal Court in the case of X, a matter involving section 15 of the Disability Discrimination Act 1992 (Cth). Justice Drummond held [12]:

Section 15 deals with employments offered by employers, ie with work activities that form part of each employer's business or organisational operation. The word 'inherent' in s.15(4)(a), in my opinion, limits the exemption created by the sub-section to those requirements of a particular position the satisfaction or fulfilment of which will directly, as opposed to remotely, further or aid in the furthering of the particular employer's operations. A requirement can, in my opinion, have the quality of being an inherent one even though that is a reflection of the business structure which the employer has elected to adopt ... An employer may adopt an organisational structure which results in a requirement for a particular job that qualifies as an inherent one for that job. But an employer will not escape infringing the prohibitions in s.15(1)(b) and 2(c) even though the requirement discriminates against a worker with a disability, if the balancing exercise called for by s.15(4)(b) is adverse to him. The more idiosyncratic an inherent requirement imposed by an employer is, the more likely it will be that s.15(4)(b) will operate to deny the employer exemption from the prohibitions in s.15(1) and (2).

In light of these authorities, Mr Sidoti was required to consider whether the requirement that a Commander has the potential to progress to a rank of Captain or beyond was an inherent requirement of the job of being a Commander, having regard to the organisational structure and operations of the RAN. The onus is on the respondent to establish this.

Having carefully considered all of the evidence and submissions put before him by the parties about this issue, Mr Sidoti came to the conclusion that the potential of an officer to progress to the next rank and beyond was not an inherent requirement of the job of Commander.

His reasons were as follows:

I appreciate that the requirement to so progress reflects an organisational structure that the respondent has adopted partly by reason of the mandatory retirement age. This is a legislative prescription over which it has no control. However, I do not consider this requirement to be 'inherent' in the sense described by Drummond J, that is, that it will directly, as opposed to remotely, further or aid the furthering of the employer's operations.

The evidence provided by the respondent clearly establishes that both the banding system for Lieutenant Commanders and promotion generally are extremely competitive processes. The evidence provided by Captain Gates is that about one third of people in rank will be promoted over time. There are currently serving in the RAN approximately 700 Lieutenant Commanders of which 340 to 350 are in zone at any one time, 300 Commanders, 70 Captains, 25 Commodores and six or seven Admirals.

The information provided by the respondent also indicates that for the period June 1991 to June 1996 the number of people promoted from the rank of Lieutenant Commander to Commander ranged from 11 to 22 people (see 2.2.5 above). A simple calculation leads to the result that the average number of people promoted every six months over that period was approximately 16. This is out of the approximate 340 to 350 Lieutenant Commanders who are eligible for promotion at any one time.

Taking into account the evidence of Captain Gates, the RAN currently has a pool of approximately 300 Commanders to choose from for promotion to its higher ranks. It is clear that of these 300 Commanders the actual number promoted to Captain (of which 70 are currently serving in the RAN) would be even smaller depending on vacancies becoming available through promotion, retirement and the like. There were no statistics provided about this particular point. However, one can assume that the number of people promoted declines even further the higher the rank being considered.

Very few people therefore are in fact promoted from Commander to Captain and to ranks beyond. The reality is that, because of the competitive nature of the promotion process and the declining number of positions available at higher ranks, the majority of officers appointed to the rank of Commander will stay in that rank for the remainder of their time in the RAN.

In addition, information supplied by the respondent outlined in 2.2.5 above confirms that between the June 1991 and June 1996 Promotions Boards eight people out of the total number of 177 people promoted from Lieutenant Commander to Commander had a date of birth prior to 1 May 1948, being the complainant's birth date. In these circumstances, I have even more difficulty in finding that the potential to progress to the rank of Captain or beyond is an inherent requirement of the job of Commander as, on the face of it, these people had even less time remaining in service than the complainant.

7. Submissions on recommendations

Having found the decision to place the complainant in Promotion Band D at the June 1995 Promotions Board discriminatory under the HREOCA, Mr Sidoti then considered appropriate recommendations.

The HREOCA does not make it unlawful to discriminate on the ground of age. However, the Division of the HREOCA under which the inquiry was conducted is directed to the elimination of discrimination in employment and occupation. Section 35(2) expressly provides that, where an act or practice is found to constitute discrimination, the Commission may make such recommendations, including compensation, as it considers appropriate in relation to a person who has suffered loss or damage as a result.

 

7.1 Complainant's submissions on compensation

  • The complainant had a reasonable expectation of being promoted to Commander in December 1995 (that is, six months after the June 1995 Promotions Board).
  • The complainant was entitled to the difference in gross salary between a Lieutenant Commander and a Commander from 31 December 1995 to 3 August 1998 (the date the complainant transferred to the naval reserve), being a sum $24,677.00
  • The complainant also referred to the difference in benefits payable under the Defence Force Retirement and Death Benefits Scheme. He calculated that the difference in the gross lump sum payable under the scheme would be $36,909.00 and the difference in gross annual pension after commutation is $6093.43. He added that the amounts claimed would increase significantly if invested over 23.13 years which the complainant stated is his assessed life expectancy factor.
  • In relation to non-economic loss, this matter had been stressful for the complainant over a protracted period. As a loyal and dedicated career officer not accustomed to challenging the decisions of his superior officers, it was a very trying experience for him. In addition, the decision of the Promotions Board has damaged his self-esteem and professional credibility and the matter has had an adverse effect on his family.

7.2 Complainant's submissions on other recommendations sought

  • A record of the Promotion Board's decision making process should be kept and made available to enable commanding officers, heads of department and DNOP staff to counsel officers accurately and effectively.
  • The Chief of Navy should advise those officers who are recommended for promotion by the Promotion Board, but who he removes from the promotions list, with a written explanation as to why he exercised his right in this manner. This would make the promotions system more open and honest.

 

7.3 Respondent's submissions on compensation

  • Even if it were found that taking account of the complainant's potential for promotion to higher ranks constituted discrimination, it could not be said that he would have been successful were it not for the discrimination. The potential of a candidate for promotion to higher ranks is only one of the factors to be taken into account by the Promotion Board, the chances of anyone gaining promotion beyond the rank of Lieutenant Commander are not high, and on each occasion of which complaint had been made the complainant faced stiff competition from other candidates.
  • If compensation were to be recommended, the net (after tax) amounts claimed by the complainant should be used.

7.4 Respondent's submissions on other recommendations sought

  • The suggestion by the complainant that the RAN change the practice of the Promotion Board to maintain records and give greater feedback to candidates for promotion is beyond the power of the Commission under s.35(2)(b) of the HREOCA. The complainant had not complained that the lack of record keeping or feedback themselves constituted discrimination.
  • The implementation of such a recommendation would potentially have very wide and extremely serious consequences for the functioning of the Promotion Boards and for naval discipline generally.
  • No recommendation should be made in the absence of a clear formulation of the recommendation and an opportunity on the part of the respondent to call evidence and make submissions in relation to the recommendation.

8. Discussion of recommendations

8.1 Recommendation of compensation

Captain Gates gave evidence that an officer still remains eligible for promotion in Band D. While that may well be the case, Mr Sidoti found that it seemed clear from the information before him that, once placed in Band D, an officer had very little real chance of promotion. In this case it seriously impacted on the complainant's career prospects.

However there was still no way to determine with absolute certainty that, even if the respondent had considered the complainant for promotion in a non-discriminatory way, the complainant would in fact have been promoted to the rank of Commander at the June 1995 Promotion Board or subsequently. The effect of the respondent's actions is that it nullified the complainant's opportunity to be properly considered for promotion at the June 1995 and in the future. It did not necessarily deny him the promotion.

Overall, awards of damages must be fair and reasonable in the circumstances of each case: Ritossa v Gray & Anor (1992) EOC 92-452. Mr Sidoti carefully considered the submissions made by the complainant and respondent in respect of this issue.

Clearly the complainant had an excellent history of service and was highly regarded by his peers. General damages can include factors such as damages for humiliation, loss of dignity and injury to feelings and the complainant made submissions in relation to these factors. Having taken into account all of the matters before him, Mr Sidoti recommended that the complainant be awarded compensation for his loss as a consequence of the discrimination in the sum of $20,000.00.

8.2 Other Recommendations

Mr Sidoti did not consider it appropriate in the circumstances to recommend that the RAN change the practice of the Chief of Navy or Promotion Boards to maintain records and to give greater feedback to candidates for promotion.

9. Notice of findings of the Commission

The Commission found that the act complained of by the complainant, namely that the respondent placed him in Promotion Band D at the June 1995 Promotion Board because of the length of time he had remaining in the RAN, constituted discrimination on the ground of age.

10. Reasons for findings

Mr Sidoti found as follows:

1. That in placing the complainant in Promotion Band D at the June 1995 Promotion Board the respondent engaged in an act of discrimination.
2. That the decision to place the complainant in Promotion Band D was based on a distinction, exclusion or preference on the ground of age which had the effect of nullifying or impairing the complainant's equality of opportunity or treatment in employment or occupation.
3. That the distinction, exclusion or preference was not based on the inherent requirements of the job.

11. Recommendation

Mr Sidoti recommended that the respondent should pay to the complainant the sum of $20,000.00.

Appendix A

Functions of the Human Rights and Equal Opportunity Commission

Part II Division 4 of the HREOCA confers functions on the Commission in relation to equal opportunity in employment in pursuance of Australia's international obligations under ILO 111.[13]

The Commission can inquire into complaints of discrimination in employment and occupation against any employer and attempt to effect a settlement - sections 31(b) and 32 (b).

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

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 - section 35(2)(a). 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 - sections 35(2)(b) and (c).

However, it is not unlawful to breach the principles of non-discrimination protected under the Act and the Commission does not have power to enforce its recommendations. If the Commission makes a finding of discrimination it must report on the matter to the federal Attorney-General under section 31(b)(ii) who subsequently tables the report in Parliament in accordance with section 46 of the HREOCA. This is effectively the only power which the Commission can exercise if a complaint proves to be non-conciliable.

Discrimination in employment and occupation

Under section 3 of the HREOCA, discrimination means:

(a) 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

(b) any other distinction, exclusion or preference that:
(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job;…[14]

ILO 111 prohibits discrimination on certain specified grounds.[15] Those grounds are contained in the HREOCA in subparagraph (a) of the definition of discrimination. ILO 111 also provides that ratifying States may address discrimination on additional grounds.[16] The HREOCA provides in subparagraph (b)(ii) of the definition of discrimination for the adoption of regulations to declare additional grounds in accordance with this provision in ILO 111. Under this power the Human Rights and Equal Opportunity Commission Regulations in 1989 declared age as a ground of discrimination for the purposes of the HREOCA with effect from 1 January 1990. [17]

It is an accepted principle in domestic law that where a statute contains language that derives directly from an international instrument, such as the HREOCA does, it should be interpreted in accordance with the interpretation the language has been given at the international level. [18] The comments of the International Labour Conference Committee of Experts on the Application of Conventions and Recommendations (the Committee of Experts) are relevant to the interpretation of the HREOCA'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.

Further the Committee of Experts has expressed the view that "the adoption of impersonal standards based on forbidden grounds" and "apparently neutral regulations and practices [that] result in inequalities in respect of persons with certain characteristics" also constitute discrimination. [19]

The Committee of Experts has commented on the ILO 111 provision of "any distinction, exclusion or preference in respect of a particular job based on inherent requirements of the job". 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. The Committee stated for example that the exception "refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by characteristics of the particular job, and be in proportion to its inherent requirements." [20]

The Committee of Experts has agreed that an intention to discriminate is not necessary for a finding of discrimination under ILO 111. [21]

1. Human Rights and Equal Opportunity Commission Report into complaints of discrimination in employment and occupation: compulsory age retirement, HRC Report No.1, 30 August 1996.

2 Notified in the Commonwealth of Australia Gazette on 21 December 1989.

3 Ratified by Australia in 1973.

4 Koowarta v Bjelke-Petersen & Others (1981) 153 CLR 168 at 265 (Brennan J); Minister for Foreign Affairs and Trade & Ors v Magno and Another (1992) 112 ALR 529 at 535-6 (Gummow J).

5 International Labour Conference, Equality in Employment and Occupation: General Survey by the Committee of Experts on the Application of Conventions and Recommendations ILO, Geneva, 1996, para 23.

6 Ibid, para 25.

7 Ibid, para 26.

8 Unlike the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth), the Human Rights and Equal Opportunity Commission Act 1986 (Cth) does not contain separate prohibitions on direct and indirect discrimination. Whether or nor provisions such as s.9(1) and s.9(1A) of the RDA should be considered mutually exclusive or not has been the subject of much judicial analysis. See Australian Medical Council v Wilson & Ors (1996) 68 FCR 46, per Heerey J and Sackville J; Waters v Public Transport Corp (1991) 173 CLR 349; Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165.

9 At pages 200 - 201.

10 At page 175.

11 See: Qantas Airways Ltd v Christie (1998) 152 ALR 365 ("Christie"); Commonwealth of Australia v HREOC and X (1998) 76 FCR 513 ("X"); Commonwealth of Australia v HREOC and Bradley, unreported, 16 October 1998 ("Bradley").

12 (1998) 76 FCR 513, at 529

13 Ratified by Australia in 1973.

14 Section 3(1).

15 Art 1(1)(a).

16 Art 1(1)(b).

17 SR 1989 407, notified in the Commonwealth of Australia Gazette on 21 December 1989.

18 See EN 4 above.

19 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.

20 Ibid, at 138.

21 Ibid, at 22.

 

Last updated 20 June 2002