The Human Rights Law Bulletin is a regular publication of the Legal Section
comprising recent developments of interest.
Inside this issue March – May 2006
This document
is also available for download in PDF and Word formats.
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1. Introduction and forthcoming seminar
details
present the seminar
EQUAL PAY FOR EQUAL WORK?
THE HIGH COURT’S DECISION IN STATE OF NSW v
AMERY
Chair
Graeme Innes, Human Rights Commissioner and
Commissioner responsible for Disability Discrimination
Speakers
Dr Christopher Birch SC Barrister & Counsel for the
respondents in State of NSW v Amery
and
Simeon Beckett Barrister, President of Australian
Lawyers for Human Rights
On 13 April 2006 The High Court brought down its decision in State of NSW
v Amery. A number of female casual teachers said that they were being
discriminated against on the ground of their sex in the amount they were paid.
The Court rejected their argument that they were discriminated against by being
paid less for work of the same value when compared to permanent teachers who
comprise a higher proportion of men.
Dr Birch will examine the history of the case, explaining how it sought to
address the plight of female casual teachers, and the evolution of the issues as
the case progressed. He will look at some implications of the case for the law
of indirect discrimination and lessons that may be learned about the conduct of
major test cases in anti-discrimination law. Simeon Beckett will provide
comment.
Admission is free and the seminar will take place on 14th June
2006 at 12:30pm –2:00pm. The venue is:
Bar Association Common Room
Basement Level 1, Selborne Chambers
174 Phillip Street, Sydney 2000
Reservations are essential. To attend please RSVP Ms Gina Sanna at legal@humanrights.gov.au
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2. Selected Developments in Discrimination Law
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State of New South Wales v Amery [2006] HCA 14 (13 April
2006)
In the State of NSW v Amery [2006] HCA 14, the
respondents alleged that the Education Department had indirectly discriminated
against them on the basis of their sex in breach of the Anti-Discrimination
Act 1977 (NSW) (‘ADA’). They alleged that as ‘temporary
teachers’ they were denied access to the higher salary levels available to
permanent teachers engaged in the same work.
Upholding the appeal, the majority of the High Court dismissed the
respondents claim. Kirby J dissented.
Structure of the NSW teaching service
The Teaching Services Act 1980 (NSW) (the ‘Teaching
Act’) sets out the scheme for the employment of teachers by the
Department. It divides the teaching service into permanent and temporary
employees, and attaches different conditions to each. Significantly, permanent
teachers must be able to be re-deployed as and when required by the Department.
The dichotomy between permanent and temporary employees created by the Teaching Act is the basis of the differential pay scales adopted in the
relevant industrial award (the ‘Award’). The Award provides 13 pay
scales for permanent teachers and 5 for temporary teachers. The highest pay
scale for temporary teachers is equivalent to level 8 of the permanent teachers
scale.
What was the ‘requirement or condition’ imposed by the
Department for the purposes of s 24(1)(b) of the ADA?
This was the first issue before the High Court. The respondents alleged that
the requirement or condition was to ‘have permanent status’,
permanent status being a condition of access to the higher salary levels.
Gleeson CJ held that, in identifying the requirement or condition, the
question that had to be answered was what did the Department do to impose the
requirement of permanency? His Honour held that it was its practice of not
paying above award wages to temporary teachers engaged in the same work as their
permanent colleagues that ‘required’ the respondents to have
permanency to access the higher salary levels.
Gummow, Hayne and Crennan JJ (Callinan J agreeing) rejected the
respondents’ characterisation of the requirement or condition on the basis
that they had not properly identified the relevant ‘employment’.
Their Honours held that ‘employment’ in s 25(2)(a) of the ADA
referred to the ‘actual employment’ engaged in by a complainant, not
employment in the general. Having regard to the ‘significantly
different’ conditions which attach to permanent and temporary employees
under the Teaching Act, they held that the respondents were not employed
as ‘teachers’ but ‘temporary teachers’. This rendered
the alleged requirement or condition incongruous.
Kirby J, rejected the approach adopted by Gummow, Hayne and Crennan JJ as
being ‘narrow and antagonistic’ and inconsistent with the beneficial
and purposive approach required to be taken to remedial legislation such as the
ADA. His Honour held that the Department required the respondents to have
permanent status to access the higher salary levels.
Reasonableness
Gleeson CJ (Callinan and Heydon JJ agreeing) was the only member of majority
to consider the issue of reasonableness. His Honour stated that in the present
context, the question of reasonableness was not whether the teaching work
of a temporary teacher has the same value of a permanent teacher, but
‘whether, having regard to their respective conditions of employment, it
is reasonable to pay one less than the other’. His Honour held that it was
reasonable for the Department to pay permanent teachers more than temporary
teachers given the ‘significantly different’ conditions of permanent
and temporary teachers.
Kirby J held that the requirement or condition imposed by the Department was
not reasonable, there being nothing in the Teaching Act justifying the
20% difference in pay.
You can read this decision at: http://www.austlii.edu.au/au/cases/cth/high_ct/2006/14.html
For further discussion of this case, see ‘State of NSW v Amery: Pay
Equity Implications’ by Joanna Hemingway, Lawyer at the Human Rights and
Equal Opportunity Commission, which will appear in the June edition of the Law Society Journal.
• HBF Health Funds Inc v Minister for Health
and Ageing [2006] FCAFC 34 (21 March 2006)
The Full Federal Court of Australia upheld the Administrative Appeals
Tribunal’s ruling that the appellant’s proposed loyalty bonus scheme
contravened the prohibition on improper discrimination contained in s.66(1) of
the National Health Act 1953 (Cth).
HBF had attempted to introduce a loyalty scheme which took into account the
level of claims made for ancillary benefits by the contributor over a period of
three years and also required the contributor to turn 65 before being able to
access the financial benefits of the scheme. However, s.73 AAH of the National Health Act prohibits any activity that constitutes improper
discrimination against a potential contributor. Section 66(1) provides that
improper discrimination is a discrimination related to... (ba) the age of a
person; or... (d) the amount, or extent, of the benefits to which a person
becomes, or has become, entitled during a period. Schedule 1 of the Act
repeats the prohibition of consideration of those matters in relation to
participation in a loyalty bonus scheme.
The Court held that the rules of the loyalty scheme constituted 'improper
discrimination' under s.66(1)(ba) and (d) of the Act. Once the scheme was
established as being discriminatory under the Act, it was not open to HBF to
argue that the discrimination was permissible because it advanced certain other
policy objectives of the Act.
You can read this decision at http://www.austlii.edu.au/au/cases/cth/FCAFC/2006/34.html
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3. Selected Developments in International Law
3.1 United
Nations Human Rights Committee
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Brough v Australia Communication No. 1184/2003 UN Doc CCPR/C/86/D/1184/2003
In
1999 the author of the communication, Corey Brough, an Aboriginal youth with a
mild mental disability, was transferred from a juvenile detention centre to the
Parklea Adult Correctional Centre. At Parklea, the author was segregated from
the other inmates and held in a ‘safe cell’ in a segregation area.
The author experienced difficulty coping with the long periods of being locked
in the safe cell and began to self harm. On 7 April 1999 the author was
allegedly stripped to his underwear and confined to a dry cell for 72 hours,
with lights on day and night. On 15 April 1999 the author was confined to his
cell for 48 hours. The author also alleged he was administered
‘Largacitil’, an anti-psychotic medication without his consent.
The author claimed that the conditions of his segregation and confinement in
Parklea detention centre were in violation of Art 7 (right not to be subject to
torture, cruel, inhuman or degrading treatment) and Art 10 (right of prisoners
to be treated with humanity and respect for the inherent dignity of the person)
of the International Covenant of Civil and Political Rights (ICCPR). The author
also claimed his transfer to an adult institution violated Art 10(3) which
states that juvenile offenders shall be segregated from adults and provided with
treatment that is appropriate to their age and legal status.
The UN Human Rights Committee (HRC) stated that the question of whether
inhuman treatment attains the minimum level of severity to come within the scope
of Art 10 of the ICCPR must be assessed by examining the circumstances of the
case, including the nature and context of the treatment, its duration, its
physical or mental effects and, in some instances, the sex, age, state of health
or other status of the victim. The HRC found that ‘the author’s
extended confinement to an isolated cell without any possibility of
communication, combined with his exposure to artificial light for prolonged
periods and the removal of his clothes and blanket, was not commensurate with
his status as a juvenile person in a particularly vulnerable position because of
his status as an Aboriginal’.
The HRC held that the author’s treatment violated Art 10(1), 10(3) and
Art 24(1) which provides that every child has the right to such measures of
protection required by his status as a minor. The HRC rejected the
author’s claims that the administration of anti-psychotic medication to
the author without his consent was a breach of Art 7, noting that the medication
was prescribed following medical advice with the intention to control the
author’s self-destructive behaviour.You can read this decision at: http://www.bayefsky.com/./doc/australia_t5_iccpr_1184_2003.doc
3.2 Other jurisdictions
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R
(on the application of Begum (by her litigation friend Rahman)) (Respondent) v.
Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL
15
The respondent, who was a Muslim, sought to attend school
wearing a form of dress known as the jilbab rather than the shalwar kameeze as
allowed under the school's uniform policy on the basis of her religious beliefs.
The school refused to allow her to wear the jilbab on the basis that the uniform
policy, which had been developed in consultation with staff, students and
religious leaders, was more than reasonable in taking into account cultural
and religious concerns.
The issues before the House of Lords were: first, whether the
respondent’s freedom to manifest her religious belief by her dress was
subject to a limitation within the meaning of Art 9(2) and, if so, whether the
limitation was justifiable; and, second, whether the respondent had been denied
access to education in breach of Art 2.
The House of Lords held (Lord Nicholls of Birkenhead and Baroness Hale of
Richmond dissenting) there had been no interference with the respondent’s
right to manifest her religion in practice or observance. The Lords observed
that there were three schools in the area where the wearing of the jilbab was
permitted and, while one of the schools was full, the Lords did not accept the
respondent’s assertion the other two schools were too distant, stating [at
25 per Lord Bingham] that there is ‘no evidence to show that there was any
real difficulty in attending one or other of those schools’.
The House of Lords unanimously held that even if it was accepted that the
appellants’ action constituted an interference with the respondent’s
right to manifest her religion, the limitation was justifiable. The
school’s dress code had been developed after extensive consultation with
the staff, parents, students and imans and the school was entitled to consider
that the uniform code protected the rights and freedoms of others.
In relation to Art 2, the House of Lords held that the respondent’s
right not to be denied education was not infringed. The appellants were entitled
to require the respondent to comply with the uniform code and there was nothing
to suggest that the respondent could not have found an alternative school which
permitted her to wear the jilbab.
In deciding the case, the House of Lords affirmed that what constitutes
interference with the manifestation of religious belief depends on the
particular facts and circumstances of the case, including the extent to which an
individual can reasonably expect to be at liberty to manifest his beliefs in
practice: R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 at [38].
You can read this decision at: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060322/begum-1.htm
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Re MB [2006] EWHC 1000 (12 April 2006)
The issue
in this case was whether the judicial supervision of a non-derogable control
orders under the Terrorism Act 2005 (UK) (the Act) is compatible with the
right to a fair hearing under Art 6(1) of the European Convention on Human
Rights (ECHR). A non-derogable control order is a control order that does not
require the Secretary of State to make a derogation from Art 5(1) of the ECHR
(the right to liberty).Under the Act, once a non-derogable order has been made, the Court is
required to hold a hearing to determine whether the decision of the Secretary of
State to impose a control order under the Act was ‘flawed’, applying
the principles of judicial review. The High Court held that the limited supervisory role given to the judiciary
fell far short of what was required by Art 6(1) given the lack of availability
of any merits review at any other stage of the decision making process and
having regard to the nature and consequences of the Secretary's decision. The
Court consequently declared those provisions in the Terrorism Act 2005 relating to the Court's supervision of non-derogatory control orders
as incompatible with the right to a fair hearing recognised by Art 6(1) of the
ECHR pursuant to s 4 of the Human Rights Act 1998 (UK).You can read this decision at: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1000.html
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Balvir Singh Multani and Gurbaj Singh Multani v. Commission scolaire Marguerite-Bourgeoys and Attorney General of Quebec 2006
SCC 6
The plaintiff was an orthodox Sikh who believed that
his religion required him to wear a kirpan (a religious object similar to a
metallic dagger) at all times. After the plaintiff accidentally dropped his
kirpan at school, the school board’s council of commissioners refused to
allow him to take it to school despite his willingness to abide by increased
security measures. The plaintiff claimed that the decision of the school board
infringed his freedom under s.2(a) of the Canadian Charter of Rights
and Freedoms (‘Canadian Charter’).
On appeal, the Supreme Court of Canada found that an absolute prohibition
against wearing a kirpan infringed the freedom of religion of the plaintiff
under section 2(a) of the Canadian Charter. Moreover, the
infringement could not be justified under section 1 of the Canadian
Charter, which guarantees the rights only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society. Although the council’s decision was motivated by a pressing and
substantial objective of ensuring reasonable level of safety at the school, the
defendant did not show the unequivocal existence of safety concerns nor that
such an absolute prohibition minimally impaired the student’s rights. By
disregarding the right to freedom of religion without considering the
possibility of a solution that posed little or no risk to the safety of the
school community, the council made an unreasonable decision.You can read this decision at: http://scc.lexum.umontreal.ca/en/2006/2006scc6/2006scc6.html
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4. Upcoming Human Rights
Events
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Australians and the Death Penalty: National and International
Dimensions
The Institute of Criminology and the Sydney Centre
for International and Global Law, University of Sydney are holding a seminar on Australians and the Death Penalty: National and International Dimensions. The Seminar will be held from 3:00-7:30pm on 7 June 2006 at the NSW
Parliament House Theatrette, Macquarie St, Sydney. The Cost is $50, $15
concession. To find out more about the seminar or to register online please
visit http://www.criminology.law.usyd.edu.au/seminars.htm .
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Australian
Bill of Rights: The ACT and Beyond
The ACT Human Rights Act
Research Project, the Regulatory Institutions Network at the ANU and Gilbert +
Tobin Centre of Public Law will hold a one day event in Canberra assessing
recent developments in Australian Bills of Rights. This conference will survey
the impact of A.C.T Human Rights Act, examine the proposed Charter of Human
Rights and Responsibilities in Victoria and look at developments in other states
and at the national level as well as exploring the comparative perspective from
New Zealand.
The conference will be held on Wednesday, 21 June 2006 at Law Theatre,
College of Law, Australian National University, Canberra. The cost is $150
(including lunch), $60 for concessions.For registration and further information, please contact Gabrielle McKinnon
at ph: (02) 6125 7103 or Email: Gabrielle.McKinnon@anu.edu.au
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Legislatures
and the Protection of Human Rights
The Melbourne University
Centre for Comparative Constitutional Studies is holding a conference on Legislatures and Human Rights from the 20 - 22 July in Melbourne at the University of Melbourne Faculty of Law. Conference Registrations costs $250 & $150 concession. Tickets to the
conference dinner cost an additional $100. Further details including the
conference program and registration form are available online at http://cccs.law.unimelb.edu.au/
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HREOC Events and Publication Calendar
For additional
upcoming events and publications related to human rights issues visit the HREOC
Events and Publication Calendar at http://www.humanrights.gov.au/events/index.html
If you have a human rights event that you wish to publicise in the Human
Rights Law Bulletin please email francessimmons@humanrights.gov.au
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