Courts and Tribunals Tasmania


[2001] TASADT 3

PARTIES:

Grant Anderson  -v-  Department of Justice and Industrial Relations

FILE NO/S:

ADT 10/2000

DELIVERED ON:

14 November, 2001

DECISION OF:

H Wood, Chairperson
M Otlowski, Panel Member
V Rutter, Panel Member

CATCHWORDS:

Equal Opportunity - Direct Discrimination on the basis of gender, pregnancy - Maternity leave for male employee refused - Indirect discrimination - Whether refusal by a 'person' - Whether conduct 'reasonably necessary' to comply with Tasmanian State Service Regulations 1985 - Anti-Discrimination Act 1998 (Tas) sec 14, 15, 16, 24.

REPRESENTATION:

Counsel:

 

Complainant:

Mr J Zeeman and Mr R Grueber

Respondent:

Mr T J Ellis SC

Solicitors:

 

Complainant:

Jennings Elliott

Respondent:

 Office of the Director of Public Prosecutions

Decision Number:

[2001] TASADT 3

Number of paragraphs:

64

REASONS FOR DECISION

1. This decision concerns a complaint made under the Anti-Discrimination Act 1998 ("Act") by the Complainant and referred by the Anti-Discrimination Commission ("Commission") to the Tribunal for Inquiry. A written complaint was made by the Complainant dated 20th August 1999 and lodged with the Commission. The complaint concerns a claim made by the Complainant, an employee of the Respondent Department, for accrued sick leave under the Tasmanian State Service Regulations following the birth of his son. The Complaint Lodgment Form provides a succinct statement of the claim:

"My partner gave birth to our son on the 7 July 99. As she runs her own business I have elected to be the primary child-carer.

As paternity leave does not exist within the State award, I applied for maternity leave in order to access the 61 days paid sick leave that females are entitled to. The application was made on the 19 July 99.

On the 23 July 99, the Acting Manager Human Resources & Development, Dept of Justice advised that I did not qualify for maternity leave as I had not become pregnant. Section 48(1) of the Tasmanian State Service Regulations 1985 states "An employee who has (whether after becoming an employee or not) become pregnant .....

I believe I have been treated less favourably on the grounds of gender, both directly and indirect. Direct discrimination has occurred as there is no paternity leave entitlements that equate with maternity leave.

Indirect discrimination has occurred through the condition of pregnancy being a pre-requisite in accessing paid sick-leave."

2. The Commission accepted the complaint for investigation and on the 16th June 2000 (date of Referral Report) referred the complaint to the Tribunal for Inquiry.

3. Directions Conferences were held by the Tribunal in relation to the complaint. On the 30th November 2000 the Inquiry was held. Both parties were represented by Counsel and the Community and Public Sector Union also participated in the Inquiry. Ms Sue Strugnell, the Union representative, attended the Inquiry and was given the opportunity to present relevant information and make submissions to the Tribunal. Participation of the Union in the Inquiry proceedings had been canvassed at a Directions Conference because of the implications of the decision for other Union members. The participation of the Union was allowed by the Tribunal at the Inquiry with the consent of the parties.

4. At the Inquiry an Agreed Statement of Facts was relied upon by Counsel and no other evidence was led. Submissions were received from Counsel and the Union representative. The Agreed Statement of Facts provided:

1.  The applicant, Grant Anderson, is employed by the Crown in the Department of Justice and Industrial Relations as a Compliance Officer Level 6 in the Office of Consumer Affairs and Fair Trading.

2.  The applicant is a permanent employee within the meaning of the State Service Act 1984.

3.  The Respondent, Department of Justice and Industrial Relations, is a government department within the meaning of the Tasmanian State Service Act 1984.

4.  The applicant lives in a bona fide de facto relationship with Ms Sue McLaurin.

5.  On the 7th July 1999 Ms McLaurin gave birth to the applicant's son, Leif Anderson.

6.  Ms McLaurin is not a State servant and runs a small business. It was intended by the applicant and Ms McLaurin that the applicant would be the primary care giver for their child for a period of time from 22nd July 1999.

7.  As at 22nd July 1999 the applicant had accrued an entitlement pursuant to Regulation 41 of the Tasmanian State Service Regulations 1985 to leave of absence on account of sickness of 61 working days.

8.  On 19th July 1999 the applicant applied for maternity leave of 60 working days from 22nd July 1999 to 13th October 1999 inclusive. The application was by way of a written application for leave submitted to the applicant's supervisor Mr Paul Marriott.

9.  The applicant's application for maternity leave was refused by the Acting Manager, Human Resources & Development, Department of Justice and Industrial Relations, Beth Chapman. The reasons for such refusal were set out by Beth Chapman in letters to Phil Marriott dated 23rd July 1999 and 30th July 1999. Copies of those letters were provided to the applicant by Mr Marriott under cover of letter dated 2nd August 1999.

10.  The applicant took leave without pay from 22nd July 1999 to 17th December 1999.

11.  The applicant lodged a complaint with the Sex Discrimination Commission on 20th August 1999.

12.  The applicant is male.

5. The letters referred to in paragraph 9 of the Agreed Statement of Facts were tendered by consent (Exhibit C1). The letter of refusal from Ms Beth Chapman dated 23rd July 1999 provides, in part:

"The above provides that an employee who has become pregnant, may be entitled to leave of absence for the period she makes application but the amount of leave must not exceed 52 weeks. Mr Anderson thus does not qualify for maternity leave as he has not become pregnant.

In normal circumstances, an employee who is pregnant, usually commences leave approximately 6 weeks before the baby is due. This employee may take sick leave for up to 61 working days (if accrued). This period covers the 6 weeks before the baby is due and 6 weeks after the end of pregnancy.

After the sick leave is used, an employee may take any or all accrued recreation leave, and long service leave, and may apply to take the remainder of the 52 weeks available as leave without pay.

Therefore, Mr Anderson may apply to take recreation leave, long service leave and leave without pay as does an employee who is pregnant. The only leave not available to Mr Anderson is the 61 days sick leave."

6. The letter dated 30th July 1999 provided further details about Mr Anderson's entitlement to unpaid leave and the criteria which apply. Those details are not relevant to this case because Mr Anderson is applying for paid leave under reg48 of the Tasmanian State Service Regulations. The Respondent Department's position was that reg48 permitting accumulated sick leave to be taken as maternity leave only applies to women.

7. The submissions made by Counsel and Ms Strugnell concerned the application of the maternity leave provision in reg48 of the Tasmanian State Service Regulations and gave rise to consideration of provisions in the Act, in particular s14 relating to direct discrimination and the exemption provision in s24.

8. After the Inquiry was held the Tribunal reserved its decision. During the course of deliberations the Tribunal gave consideration to the question of whether the case may involve indirect discrimination. The complaint was relisted at the Tribunal's initiative and the Tribunal invited submissions from Counsel in relation to the application of s15 of the Act and whether this was a case involving indirect discrimination. On the 22nd March 2001 additional submissions were heard in relation to indirect discrimination. It is convenient to deal with these additional submissions relating to indirect discrimination after consideration of direct discrimination. First of all, the relevant statutory provisions are set out as follows.

Statutory Provisions

9. Regulation 48 of the Tasmanian State Service Regulations is central to this Inquiry and provides:

(1) An employee who has (whether after becoming an employee or not) become pregnant -

(a) is entitled to leave of absence for the period for which she makes application in accordance with this regulation, being a period that complies with the requirements of subregulation (2); and

(b) shall subject to subregulation (3), absent herself from duty during the period commencing 6 weeks before the expected date of her confinement and ending at the expiration of 6 weeks from the day on which her pregnancy terminates.

(2) The period of leave referred to in subregulation (1)(a) is a period of leave that does not exceed 52 weeks in length and that commences not earlier than 20 weeks before the expected date of the employee's confinement.

(3) Subregulation (1)(b) does not apply to an employee where the relevant Head of an Agency is satisfied on the production of a certificate from a legally qualified medical practitioner that that employee is fit -

(a) to continue duty until a date specified in that certificate; or

(b) to resume duty after her confinement on a date specified in that certificate.

(4) On application being made by an employee, the relevant Head of an Agency shall grant to her the leave of absence to which she is entitled under subregulation (1).

(5) Subject to subregulation (6), at any time during which an employee is absent from duty in pursuance of leave of absence granted under, or pursuant to the requirements of, subregulation (1), she may amend an application under subregulation (4) so as to extend or reduce the period referred to in the application, but so that the altered period complies with the requirements of subregulation (2). and the relevant Head of an Agency shall, in accordance with the amended application, vary the grant of leave of absence to that employee.

(6) An employee granted leave of absence under this regulation shall give the relevant Head of an Agency one month's notice in writing of her intention to resume duty, unless that Head, in circumstances that Head considers to be exceptional, accepts a shorter period of notice.

(7) Subject to subregulation (8), where an employee is granted leave of absence under this regulation, she may notify the relevant Head of an Agency that she desires to treat as leave of absence an account of sickness such amount of leave of absence granted under this regulation as is equal to the amount of leave of absence on the grounds of sickness to which she is entitled under these Regulations.

(8) The period of leave of absence which may, under subregulation (7), be treated as leave of absence on account of sickness shall not exceed 61 working days.

(9) A reference to subregulation (7) to sickness shall be deemed not to include references to sickness arising out of or in the course of the employment of an employee or arising from her default or misconduct.

(10) An employee is not entitled to pay in respect of any period of leave of absence granted to her under this regulation or in respect of any period during which she is required under this regulation to absent herself from duty, expect in so far as that period is, or is to be treated as, a period of absence with leave in respect of which she is entitled to pay, or any proportion of her pay, pursuant to any other provision of these Regulations.

(11) Subject to subregulation (7), nothing in this regulation prevents the grant of leave of absence to an employee under any other provision of these Regulations, or prejudices or affects her rights in respect of the granting of any such leave of absence.

10. Section 14 of the Anti-Discrimination Act is also central to this Inquiry and provides:

Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating.

11. Other relevant provisions of the Act are ss15, 16 and 24. Section 15 of the Act provides:

(1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who -

share, or are believed to share, a prescribed attribute; or

share, or are believed to share, any of the characteristics imputed to that attribute -

more than a person who is not a member of that group.

(2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people.

12.  Section 16, in part provides:

16. A person must not discriminate against another person on the ground of any of the following attributes:

(e) gender;

(g) pregnancy;

(i) parental status;

(j) family responsibilities;

13.  Section 24 of the Act provides:

A person may discriminate against another person if it is reasonably necessary to comply with -

(a) any law of this State or the Commonwealth; or

(b) any order of a commission, court or tribunal.

The submissions relating to direct discrimination

14. Written submissions were made to the Tribunal by Counsel and supplemented by oral submissions at the Inquiry. A summary of submissions made by Counsel for the Complainant, Mr Zeeman were as follows.
15. Regulation 48 applies to male employees as well as female employees. While reg48 is for the benefit of pregnant women this does not mean that the application of the Regulation is limited to pregnant women.
16. The Regulations enables women to maintain and advance their employment at the same time as bearing and raising children and this purpose would be advanced if their partners were able to take leave from employment to care for newly born children. This would provide women with the choice of returning to their employment and their careers as soon as they wish to and provide couples with the opportunity to share the primary care-giving role.
17. It was submitted on behalf of the Complainant that references to the feminine gender in reg48 does not exclude male employees. The Complainant's Counsel submitted that the accepted rule of statutory interpretation is that the masculine pronoun incorporates the feminine and that the feminine pronoun incorporates the masculine, subject to it being clear on the face of the legislation that it does not.
18. Submissions were made concerning the terms 'pregnant' and 'pregnancy' appearing in reg48. It was submitted as follows. Regulation 48 is beneficial legislation and it should be interpreted liberally or beneficially. The mischief that the Regulation is designed to correct is detriment to the employment or careers of women as a consequence of pregnancy and childbirth. In order to apply a liberal interpretation to the Regulation the terms 'pregnant' and 'pregnancy' should be interpreted so as to apply not only to pregnant women but to couples expecting a child. That is, pregnancy is a joint condition and the reference to an employee who has become pregnant should be read as reference to an employee who is part of a pregnant couple. It was submitted that this is consistent with the general attitude of the community that couples become pregnant, couples take part in fertility procedures such as invitro fertilisation and couples make decisions about contraception.
19. It was submitted that reg48 applies to male employees and that Mr Anderson has been unlawfully discriminated against and precluded from an entitlement to his sick leave on the basis that he is not female and on the basis that he does not have childbearing capacity. It is submitted that the Complainant has been discriminated against and treated 'less favourably' on the ground of the attributes of gender and pregnancy contrary to s16(2)(e) and (g) of the Act.
20. The essence of the submission made by Counsel for the Complainant in relation to s24 of the Act appears to be that in order to comply with reg48 it was not 'reasonably necessary', within the meaning of s24, to refuse Mr Anderson's application for sick leave and that the application of reg48 does not operate to deprive male employees of leave. This is because reg48 applies to male employees as well as female employees. If, contrary to the Complainant's submission, reg48 operates exclusively for the benefit of female pregnant employees then it is not argued on behalf of the Complainant that the application of s24 can be avoided.
21. In summary, it was submitted on behalf of the Complainant that he has been the subject of discrimination on the grounds of a prescribed attribute and that discrimination was not 'reasonably necessary' to comply with the Regulations and s24 does not apply to authorise the discrimination.
22. Counsel for the Respondent, Mr Ellis SC submitted that an essential requirement of reg48 was that the employee seeking leave had become pregnant. Further, there was no discrimination on the ground of an attribute (pregnancy or gender) by the Department. If Mr Anderson had been pregnant, he would have been entitled to the leave. Further, Mr Anderson's application was not refused because he was a male. It was because he was not pregnant. The application of a female who was not pregnant would have had the same result.
23. It was submitted by Mr Ellis SC that direct discrimination contrary to s14(2) requires there to have been treatment which is less favourable of the Complainant than a person without that attribute. It was submitted that Mr Anderson was treated exactly the same as a person without the attribute of pregnancy - he was not granted maternity leave.
24. Further, it was submitted by Counsel for the Respondent that the plain words of reg48 cannot bear the interpretation sought by the Complainant. He argues that indications that the interpretation of reg48 sought by the Complainant is incorrect is found in the following:

the source of the regulatory power, s81(2)(e) of the Tasmanian State Service Act is gender ('female employee') and occasion ('on account of childbirth') specific;

the drafting of the Regulation is plainly not gender-neutral or designed to include both genders.

The pregnancy need not result (or, in terms of the Regulation, 'terminate') in a live birth for the leave period to be available. Thus it is the effect of pregnancy and birth rather than (as the Respondent contends) 'to care for a newborn infant' to which the Regulation is directed. (Ref. Outline of Respondent's written submissions at pages 3-4)

25. Reliance was placed by Counsel for the Respondent on s24 of the Act as support for the Respondent's refusal of the Applicant's application for maternity leave. Further, it was submitted that "the phrase 'reasonably necessary' rather than simply 'necessary' or (which would be the same thing) 'strictly necessary' indicates that in any cases of doubt or ambiguity a person's primary duty is to seek to comply with the (general) laws of the State. In other words, any flexibility or discretion in actions should be allowed for compliance with those laws even if (otherwise unlawful) discrimination might result". (Ref Respondent's outline of submissions at page 5).

Reasons and conclusions in relation to direct discrimination

(i) Does reg48 apply to male employees?

26. In considering the submissions made on behalf on the Complainant the terms of the Regulations need to be considered to ascertain the meaning of reg48 and whether or not it was intended that the regulation should apply to both genders.

27. It is apparent that the pronouns 'she' and 'her' appearing in reg48 are not referring to the male gender as well as the female gender. As submitted by Mr Ellis SC, where the Regulations refer to both genders terms are used in the Regulations such as 'himself or herself' (reg45) or 'ex-serviceman or ex-servicewoman'(reg46) or the gender neutral term 'employees'. It is concluded that Regulations which refer only to female employees have restricted application to the female gender and do not include the male gender.

28. It is noted that the approach adopted in the Regulations of gender neutral terms referring to both genders and gender specific terms limiting the application of the regulation to a particular gender is consistent with the approach taken in the Tasmanian State Service Act. The Governor's regulation-making power, set out in s81(2) refers to 'employees' in some sub-sections and 'female employees' in subsection (e). Section 81(2)(e) is the sub-section which grants the power to make reg48 and provides:

(2) Without limiting the generality of subsection (1), the Governor may make Regulations for or with respect to the following matters:

.......

(e) the leave of absence on account of childbirth to which female employees or specified classes of female employees are entitled and the terms and conditions in respect of which such leave may be granted ....

The reference to 'female employees' in the section which grants power to make the regulation under consideration in this case supports the Respondent's argument that reg48 only applies to benefit women taking leave on account of childbirth.

29. It is plain from the terms of reg48 that it only applies if the employee is pregnant. The argument on behalf of the Complainant that in certain contexts couples are treated as sharing the state of pregnancy is noted. The Tribunal acknowledges that in modern society partners and families are much more involved in the experience of pregnancy than they used to be. It may be that this involvement has given rise to expressions like the expression that a couple is pregnant. But the context of the regulation under consideration is not couples but the employee as an individual and that individual's entitlement to leave. It is unduly straining the meaning of ordinary language to describe a male employee as pregnant who is a member of a couple expecting a child. To state the obvious pregnancy can only occur in women and in the use of our ordinary language we do not describe an individual male as pregnant.

30. The particular terms of reg48(1)(b) contemplate that the employee shall take leave at a certain stage of that employee's confinement and after the end of that employee's pregnancy. This requirement could not apply to the male member of a couple expecting a child. It is concluded that subregulation 1(b) makes it abundantly clear that an employee's entitlement to leave under this regulation is dependent upon pregnancy. It is argued by Counsel for the Complainant that this subregulation is not mandatory but only directory. This argument does not bear close analysis. If the subregulation was not mandatory then there would be no need for there to be the exception set out in subregulation (3).

31. It is concluded that the plain and clear meaning of reg48 is that it does not apply to male employees.

32. It is argued for the Complainant that reg48 should be construed liberally. It was argued that in view of the beneficial purpose of the Regulations a liberal construction should be preferred if the terms of the Regulations are ambiguous. However in this case the Tribunal is of the view that the regulation is clear and unambiguous and that therefore is no need to refer to this principle of statutory interpretation.

(ii) Is the application of r48(1)(b) discriminatory?

33. In order for the application of reg48 to amount to discrimination under the Act it must be shown that the Respondent's rejection of the Complainant's application for paid maternity leave was on the basis of an attribute set out in s16 of the Act. According to s14 of the Act "direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, ... less favourably than a person without that attribute ...".

34. It is claimed that the Complainant has been discriminated against on the basis of the prescribed attributes of gender and pregnancy. It is claimed that Mr Anderson has been unlawfully discriminated against because he was treated less favourably on the basis that he is not female and that he did not have childbearing capacity. It is argued that lack of child bearing capacity is included in the attribute of 'pregnancy' in s16 of the Act.

35. It is convenient to first consider whether the attribute of pregnancy applies and whether there has been discrimination on the basis of that attribute. The question may be asked is discrimination on the basis that a person was not pregnant discrimination on the ground of pregnancy? Adopting the ordinary and natural meaning of the word 'pregnancy' the answer to that question is no. The physical condition of pregnancy does not encompass the condition of not being pregnant. However, the Act provides an extended meaning to the attribute of 'pregnancy'. The interpretation provision, s3 of the Act provides that "pregnancy includes child bearing capacity". This definition extends the ordinary meaning of pregnancy to include a capacity to become pregnant. The question arises whether that meaning includes lack of child bearing capacity. The Tribunal's preliminary view is that 'child bearing capacity' encompasses the ability to become pregnant even if there are physical limitations relating to that ability but not an incapacity to become pregnant. Therefore, men cannot assert discrimination on the basis of their 'child bearing capacity' ie because they are incapable of becoming pregnant.

36. This approach to the meaning of the phrase 'child bearing capacity' need not be expressed as a concluded view because even if 'child bearing capacity' includes incapacity to become pregnant then that does not assist the Complainant. Direct discrimination takes place if an individual is treated, on the basis of any prescribed attribute, less favourably than a person without that attribute. In this case the attribute may be characterised in two ways - either 'pregnancy' as defined under the Act or more specifically lack of child bearing capacity - included within the definition of 'pregnancy'. Regardless of how the attribute is characterised the Complainant has not been treated less favourably than a person without that attribute. He has not been treated less favourably than a person who is not pregnant - in fact he has been treated in exactly the same way in that he is not entitled to access his sick leave. He has not been treated less favourably than a person with child bearing capacity - child bearing capacity not being the key to entitlement.

37. The other attribute relied upon by the Complainant is the attribute of 'gender'. The Tribunal concludes that the Complainant has not been treated less favourably on the basis of his gender. If the Complainant was female then that would not ground an entitlement to access sick leave. The Complainant would have to be both pregnant and female to be entitled to paid leave under reg48. Only women who have given birth are entitled to paid leave under reg48.

38. It is concluded that the Respondent's refusal of the Complainant's application for maternity leave was not treatment on the basis of the attributes of gender or pregnancy and therefore does not amount to direct discrimination as claimed.

Indirect discrimination

The submissions

41. It was submitted on behalf of the Complainant that s15 of the Act applied and that the Complainant had been subject to indirect discrimination. Reference was made to the decision of the former Sex Discrimination Tribunal (Tasmania) in Louden v Department of Education, Training, Community & Cultural Development and the Department of Premier and Cabinet delivered on the 2nd September 1999 which considered s15 of the Sex Discrimination Act 1994 which is in similar terms to s15 of the current Act. In the case of Louden the Tribunal considered the requirements of indirect discrimination and it was submitted by Counsel for the Complainant that the requirements were satisfied in this case.
42. Counsel for the Respondent submitted that there was a threshold obstacle to the application of s15 to the facts of this case. In particular the requirement in s15 that 'a person' impose a condition, requirement or practice could not apply to the imposition of a condition or requirement by the Governor of a State or a legislature. It was submitted that in this case if the condition is imposed by legislation then in reality "it is imposed by the Governor of the State of Tasmania in enacting a statute or a regulation which has the approval of the Parliament of Tasmania" and that it "is an act of a person which this Tribunal is not set up to examine and which is outside the purview of this Tribunal" (refer p12-13 of transcript of 22nd March 2001). Therefore, s15 of the Act should not apply to the making of the Regulations under the State Service Act. In support of this submission Mr Ellis SC relied upon Gerhardy -v- Brown (1984 -1985) 159 CLR 70 at p. 81. In the passage relied upon by Mr Ellis SC Gibbs CJ considered s9(1) of the Racial Discrimination Act and in part stated:

"However, the words 'it is unlawful for a person to do any act' do not naturally describe the steps taken by the legislature and the Governor of a State to pass a Bill into law. Indeed it would not be only surprising but of very doubtful constitutional validity for the Commonwealth Parliament to make it unlawful for a State Parliament to pass a law of a particular kind.

43. Other cases were relied upon by Mr Ellis SC. The High Court case of Mabo (No. 1) v Queensland (1988) 166 CLR 186 and in particular, the passage at 196-7, set out below, was relied upon:

As it happens, the plaintiffs' argument based on s.9 must be rejected on another and more fundamental ground. Section 9(1) makes it unlawful for 'a person to do any act' involving racial discrimination which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of any human right or fundamental freedom in the field of public life. The references to "a person" and "any act" are inapposite to comprehend the enactment by the Parliament of Queensland of a statute. It would take a bold leap in statutory interpretation to conclude that the Commonwealth Parliament was addressing itself to the State legislatures. And, in any event, the Parliament of the Commonwealth does not possess legislative power to prohibit the Parliament of Queensland from enacting a law on a topic falling within a head of concurrent Commonwealth legislative power. Section 107 of the Constitution expressly preserves the power of the Parliaments of the States except to the extent that they are exclusively vested in the Parliament of the Commonwealth or are withdrawn. The co-existence of Commonwealth and State legislative power with respect to subject-matter necessarily precludes the existence of a power in the Commonwealth Parliament to prohibit or make unlawful the exercise of a State Parliament of its concurrent legislative power with respect to that subject-matter. Section 109 of the Constitution then resolves any conflicts between the competing laws in favour of the paramountcy of the Commonwealth law; to the extent of that inconsistency of State law is inoperative.

44. Further, the decision of the Human Rights & Equal Opportunity Commission, Australian Education Union (Tasmanian Branch) v State of Tasmania H96/165, a decision of Inquiry Commissioner the Hon. Robert Nettlefold was relied upon. In that case the learned Commissioner considered the application of provisions under the Retirement Benefit (Transitional) Regulations 1994 (Tas) and the Retirement Benefits Regulation 1994 (Tas) and whether or not women members of the AEU had been indirectly discriminated against on the ground of their sex in the provision of goods, services and facilities in the area of superannuation under the Sex Discrimination Act 1984 (Cth). At page 12 of the decision the learned Commissioner considered the passages in Gerhardy -v- Brown and Mabo (No 1) -v- Queensland referred to above and relied upon by Mr Ellis SC and continued as follows:

The facts of this case do not disclose any relevant act of the Respondent which is capable of falling within s50. The passing of a valid State law is not such an act. Indeed, it is not the act of the Respondent. Nor is the administration of such an law, where the relevant rule in the law is a positive rule for any discretionary element.

45. Mr Ellis SC also relied upon the decision of the Human Rights and Equal Opportunity Commission in Sumner v PSS Board and Commonwealth of Australia (1998) HREOCA 16 and the reasons for decision of Hearing Commissioner Sir Ronald Wilson. Under consideration was s50 of the Sex Discrimination Act (Cth) which requires an 'act' by the Respondent. The Hearing Commissioner considered whether or not a decision of the PSS Board was a 'legislative' or 'administrative' act. Sir Ronald Wilson determined that the act of the PSS Board was part of the legislative process and could not be impugned as unlawful. At pages 9-10 Sir Ronald Wilson stated:

My reasoning in this regard follows the principle enunciated by Brennan CJ and McHugh J in a joint decision delivered in the High Court in the case of IW -v- City of Perth (1997) 146 ALR 696, at p704. Their Honours distinguished between a "legislative" act and "operational" decisions as follows:

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

.....

By contrast, the ten year rule, both in its inception and its amendment, is of a legislative nature, a characterisation which leaves the PSS Board with no role vis-a-vis the rule as a provider of services. It is, therefore, distinguishable from the scheme considered in the Australian Education Union case and clearly constitutes a "legislative act" within the terms described in IW -v- City of Perth.

46. As Mr Ellis SC conceded, his submissions regarding lack of jurisdiction also apply to 'direct discrimination' under the Act which requires conduct of 'a person' and if correct the Tribunal does not have jurisdiction to consider whether there has been any form of discrimination because the Act does not apply.

47. Mr Grueber, appearing for the Complainant at this stage of the Inquiry, provided written submissions dated 4th April 2001. Mr Grueber's submissions included the following passages:

The relevant imposition of a condition, requirement or practice for the purposes of Section 15 in the present case is not the enactment of the regulation by the Governor but its application by the Respondent to state servants whose employment is administered by the Respondent on behalf of the Crown so as to effect the relevant disadvantage for the purposes of Section 15.

The cases of Australian Education Union (Tasmanian Branch) -v- State of Tasmania HREOC 10 June 1999, Sumner -v- Public Sector Superannuation Board HREOC 27 May 1998, Gerhardy -v- Brown (1985) 159 CLR 70 and Mabo (No 1) -v- Queensland (1988) 166 CLR 86 ought be distinguished because they involved consideration of the restriction of the legislative power of a State legislature by application of Commonwealth legislation prohibiting discrimination. The same principles do not apply to the application of Tasmanian legislation to Tasmanian Regulations. Tasmanian legislation can and does restrict the making of Tasmanian Regulations.

Australian Education Union (Tasmanian Branch) -v- State of Tasmania and Sumner -v- Public Sector Superannuation Board are further distinguishable on the basis that they related to the payment of monetary benefits determinable in accordance with a formula set out by regulation or trust deed where the relevant body was not permitted to act other than in accordance with those rules.

Consideration of jurisdictional argument

48. It is convenient to deal first with the aspect of Mr Ellis' argument concerning the case of Sumner. The reasons for decision of Sir Ronald Wilson in following the principle articulated in the High Court decision of IW -v- City of Perth (1997) 146 ALR 696 at 704 do not apply to this case. The principle relates to the meaning of 'services' under the Anti-Discrimination Legislation and is confined to that issue. Hence, the application of that principle resulted in the conclusion of Sir Ronald Wilson in the Sumner case that the PSS Board had no role vis-a-vis the ten year rule as a 'provider of services'.

49. The reasoning of the High Court in Mabo (No. 1) regarding the doubtful constitutional validity for the Commonwealth Parliament to make it unlawful for a State Parliament to pass a particular kind of legislation does not apply to the situation before the Tribunal which is concerned only with legislation passed by State Parliament.

50. The Tribunal has considered Mr Ellis' submission relating to the requirement in s15 that 'a person' impose a condition, requirement or practice. The Tribunal accepts Mr Grueber's submission and concludes that the proper approach in this case is to regard the word 'person' in the Act in ss14 and 15 of the Act as relating to the body responsible for the application of the Regulations and not the Governor of the State or the legislature.

51. In this case it appears appropriate to regard the 'person' who imposed the condition as being the Respondent. The Respondent played an active role in considering the Complainant's application for leave and making a determination regarding the application of reg48.

52. This approach of treating the 'person' under the Act as the Respondent is consistent with the structure of the Act and the intention of Parliament revealed in that structure and in particular, s24 of the Act. Section 24 provides exemption to a 'person' who acted in a discriminatory manner but such discrimination was 'reasonably necessary' to comply with any law of this State or Commonwealth. If Mr Ellis' submission is taken to its logical conclusion then s24 is otiose. According to Mr Ellis' reasoning if discrimination arises from the application of statute then the 'person' is to be characterised as the Governor of the State or the legislature and not the individual or body who in fact applied the legislation or imposed a condition under the legislation. If this approach is correct then there would be no need for s24.

53. It is noted that both ss24 and 15 refer to 'a person'. It is presumed that the phrase has the same meaning in both provisions. If, as Mr Ellis SC contends, 'a person' in s24 applies to the Respondent so as to exempt the Respondent from liability under the Act then it would seem that the phrase 'a person' in s15 could also apply to the Respondent. If Mr Ellis is to rely upon s24 then that reliance must be as an alternative position to Mr Ellis' submission regarding s15.

54. The Tribunal concludes that the words 'a person' in ss14 and 15 relate in this case to the Respondent and not the Governor of Tasmania.

55. Another jurisdictional argument emerges from the authorities relied upon by Mr Ellis SC. This argument is distinct from the matters raised by Mr Ellis SC. The argument may have application to the Act and whether there has been 'conduct' within the definition of 'discrimination' in s3 of the Act. The line of argument was considered in the case of AEU -v- State of Tasmania which was relied upon by Mr Ellis SC. The learned Commissioner considered the decision of Branson J in the case of Secretary, Department of Defence v Human Rights and Equal Opportunity Commission and Others (1997) 149 ALR 309.

56. Branson J considered whether or not there was an 'act' or 'practice' as defined in the Human Rights and Equal Opportunity Commission Act and hinging on this question, whether or not the Commission had jurisdiction to inquire into a situation involving compulsory retirement by virtue of s76V of the Public Service Act. The relevant part of the judgment is set out by the learned Commissioner in the AEU case at pp9-10.

The terms of s.76V(1) of the Public Service Act makes it plain that, subject to s.76V(2), an officer will be retired from the Australian Public Service upon reaching the maximum retiring age by force of that subsection, not by reason of any act or practice done by or on behalf of the Commonwealth or under an enactment. I note that Moore J construed s.76V(1) in this way in Australian Liquor, Hospitality and Miscellaneous Workers Union -v- Commonwealth of Australia (1949) 55 IR 18 at 19. It follows from this construction of s.76V(1) of the Public Service Act that s.31(b) of the HREOC Act cannot be construed as giving to HREOC the function of inquiring into the operation of s.76V of the Public Service Act - notwithstanding that it is a statutory provision unequivocally discriminatory on the basis of age.

......

However, that is not to say that a decision of a Secretary not to exercise the discretion to make a determination under s.76V(2) of the Public Service Act can never involve an act or practice constituting discrimination within s.31(b) of the HREOC Act.

57. Similarly, it may be argued in this case that there has been no 'conduct' by the Respondent and that the refusal of the Complainant's application for paid leave occurred by force of the Regulations and not by reason of any 'conduct' by the Respondent.

58. While the learned Commissioner in AEU held that the dicta in the judgment of Branson J had application to the facts of that case, it is not clear that the reasoning applies to this case.

59. It is by no means clear that 'conduct' under the Act should be interpreted in the same way as 'act' or 'practice' under the Commonwealth legislation. Under the Human Rights and Equal Opportunity Commission Act (CW) and the Sex Discrimination Act (CW) there is not an equivalent provision to s24 of the Act. Under the Sex Discrimination Act 1984 (CW) there are exemptions for acts done in compliance with certain specified legislation: s40. However, there is not a broad based exemption applying to conduct or acts done in compliance with any State or Commonwealth legislation. It may be argued with some force that the existence of s24 in the Tasmanian Act affects the meaning of the word 'conduct' and suggests that it includes conduct applying legislation which imposes a condition or requirement.

60. The application of the dicta in the judgment of Branson J does not need to be determined in this case. In the Tribunal's view it would be inappropriate to reach a determination about the application of this line of authority to the Act when it is an important matter with ramifications for other cases and which has not been the subject of submissions by Counsel.

61. As foreshadowed, the Tribunal was to consider whether or not the conduct the subject of this complaint satisfies the requirements of 'indirect discrimination'. There would be cases where it would be appropriate to consider this ground of redress under the Act in circumstances where the Complainant's case relied on the provision regarding 'direct discrimination' and where, as here, the Tribunal has concluded that the Complainant failed to establish 'direct discrimination'. Mr Ellis SC has requested that if the Tribunal considers that it has jurisdiction to consider indirect discrimination he would seek the opportunity to address the Tribunal in relation to substantive issues concerning indirect discrimination. The Tribunal would grant that opportunity involving a further listing of this complaint before the Tribunal. While indirect discrimination was arguably applicable and warranted consideration, once it was apparent that the issue would give rise to involved representations and the burden of additional costs to the parties, it appeared in this case, sensible to consider the application of s24 and whether that provision would mean that the Complainant would be deprived of redress under the Act. As a consequence of the delay and cost involved to the parties in re-listing the complaint the Tribunal considers that the preferable approach is to consider first whether s24 applies to exempt the Respondent if the Respondent's actions amount to discrimination.

The application of section 24

62. Section 24 of the Act permits discrimination if it is reasonably necessary to comply with any law of Tasmania or the Commonwealth. If s24 applies then conduct which breaches s15 of the Act and amounts to indirect discrimination is not unlawful. It is noted that reg48 is a law of the State. Further, in view of the conclusion reached by the Tribunal that reg48 does not apply to benefit male employees so that the Complainant was not entitled to access his paid sick leave under that regulation and in light of the absence of a parental leave provision in the legislation applicable to the Complainant the Respondent's conduct in refusing his application for paid sick leave was necessary in order to comply with the Regulations. Section 24 therefore applies and the Respondent's decision refusing the application for paid leave was 'reasonably necessary' to comply with the Regulations.

63. If the Respondent's conduct amounted to indirect discrimination against the Complainant under the Act such conduct is exempt and not unlawful by virtue of s24 of the Act. For the reasons given the Tribunal will not determine whether or not the Respondent's conduct towards the Complainant amounted to indirect discrimination. As a consequence of the effect of s24 of the Act the complaint cannot be substantiated even if the Respondent's conduct amounted to indirect discrimination under the Act.

Order

64. The complaint is unsubstantiated and pursuant to s99(1) of the Act the complaint is dismissed.