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Reports of inquiries into complaints of discrimination in employment on the basis of criminal record

Mr Mark Hall v NSW Thoroughbred Racing Board

APPENDIX B

Notice under section 35 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Concerning Equal Opportunity in Employment

Complainant: Mr Mark Hall

Respondent: New South Wales Thoroughbred Racing Board

1. The Commission's Jurisdiction

This is a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") of discrimination in employment on the ground of criminal record. The jurisdiction of the Human Rights and Equal Opportunity Commission ("the Commission") in relation to complaints of discrimination in employment is described in Appendix 1 to this Notice.

In 1989 the Human Rights and Equal Opportunity Commission Regulations declared a number of additional grounds of discrimination for the purposes of the HREOC Act with effect from 1 January 1990. Criminal record is one of those grounds.

2. The Parties

2.1. The Complainant

For several years Mr Hall has been employed as a stablehand. Mr Hall's employment as a stablehand is conditional upon being granted a stablehand licence by the New South Wales Thoroughbred Racing Board ("the Board").


2.2. The Respondent

The respondent to the complaint is the Board. The respondent was established by the Thoroughbred Racing Board Act 1996 (NSW) ("the TRB Act") as the representative body responsible for the management of racing and the licensing of industry participants in the State of New South Wales.

Section 13 of the TRB Act confers on the Board a general power to control, supervise and regulate horse racing, and to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the horse racing industry in the State and the protection of the public interest as it relates to the horse racing industry.

Section 14 of the TRB Act confers on the Board a general power to license or to refuse to license industry participants, including stablehands, and otherwise deal with any matter related to racing.

Local Rule 51(2) provides:


The Board may grant any licence or permit upon such terms and for such period as they may see fit, and may refuse to grant any such licence or permit without assigning any reasons for such refusal, and may at any time cancel or suspend or vary without giving any reason any such licence, registration or permit before the termination of the period for which such licence or permit was granted.


3. Summary of the Complaint

On 22 June 1999, Mr Hall lodged a complaint with the Commission alleging discrimination in his employment and occupation on the ground of his criminal record. The complaint arises from the Board preventing Mr Hall from working for Ms Gai Waterhouse of Gai Waterhouse Racing Stables as a stablehand from about 28 April 1999 and refusing to issue him with a stablehand licence on or about 21 June 1999. Mr Hall alleges that the reason or one of the reasons, for the Board's refusal to allow him to continue working as a stablehand and its refusal to issue him with a licence was his criminal record.

The complaint is denied by the Board. In summary, the Board claims that the decision was not made on the basis of Mr Hall's criminal record but on other grounds, in particular Mr Hall's failure to disclose his criminal record. [1]

4. Relevant Legal Framework

Section 3 (1) of the HREOC Act defines "discrimination" as follows:


(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.

Regulation 4(a)(iii) of the Regulations provides that a distinction, exclusion or preference made on the ground of criminal record will constitute discrimination for the purposes of sub-paragraph (b)(ii) of the definition of "discrimination" in section 3 of the HREOC Act. [2]

Section 31(b) of the HREOC Act confers on the Commission the function of inquiring into "any act or practice, including any systemic practice, that may constitute discrimination" and, where the Commission considers it appropriate to do so, to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry.
Section 31(b)(ii) provides that where the Commission is of the opinion that the act or practice constitutes discrimination, and has endeavoured without success to reach a settlement, it will to report to the Minister in relation to the inquiry.

Section 35 of the HREOC Act sets out the requirements of the Commission's report and the recommendations that may be made. Section 35(2) provides:


Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:

(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;
(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
(c) may include in the notice any recommendation by the Commission for either or both of the following:

(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice…

5. Conciliation

In accordance with section 31(b)(ii) of the HREOC Act the Commission attempted, by conciliation, to effect a settlement between the parties. The attempt at conciliation was unsuccessful.

6. The Inquiry Process

On 19 February 2001, the President provided to the parties a document entitled 'Report of an unconciliable complaint under the Human Rights and Equal Opportunity Commission Act 1986' (the "President's Report", which appears as Appendix 2 to this notice). The President's Report contained the President's preliminary findings in respect of whether the complainant had been discriminated against within the terms of section 3(1) of the HREOC Act. The President formed the preliminary view that the respondent had discriminated against the complainant within the terms of section 3(1) on the basis of his criminal record.

In reaching my findings I have had regard to all the documents in the President's Report including the bundle of documents annexed thereto (the "Bundle").

After issuing the President's Report, the President delegated the further conduct of this inquiry to me. Pursuant to sections 33 and 27 of the HREOC Act, I invited the parties to make further submissions orally and/or in writing. The parties availed themselves of the opportunity to make both written and oral submissions. Mr Hall filed written submissions dated 2 April 2001 together with an affidavit in support which appear at Appendix 3.The Board filed written submissions dated 13 March and 31 May 2001 which appear at Appendix 4. Oral submissions were made at a hearing on 17 October. A transcript of these submissions (the "Transcript") is attached at Appendix 5.

7. Matters in Dispute

In deciding whether there has been "discrimination" within the terms of section 3(1) of the HREOC Act (read with regulation 4 of the Regulations), three elements must be considered in the context of this case:

I must also consider whether that distinction, exclusion, or preference was based on the inherent requirements of the job. [4]

It is agreed by the parties that Mr Hall has a criminal record (which includes some spent and unspent convictions) details of which were before the Board when considering his licence application and that there was an act or practice which arose in the course of employment. The issues in dispute between the parties are:

8. Submissions

8.1 Introduction

I have summarised below the parties' submissions on the issues in dispute:

8.2 Was the decision on the basis of criminal record?

The Board asserted that it has been a longstanding practice not to provide reasons for its licensing decisions and no reasons were formally given to Mr Hall in this case.

However, from the circumstances surrounding the rejection of his licence application, and from the Board's submissions to the Commission, Mr Hall invited the Commission to draw an inference that his criminal record was the reason, or one of the reasons, for the rejection of his application. [4]

Mr Hall contended that the Board focused on his criminal record throughout the process. At his interview with the Chief Racing Inspector (Mr R A Nicholson) on 18 May 1999, he was questioned about his criminal record and the circumstances in which the offences were committed, as well as his failure to disclose his criminal record in his licence application form. Following this interview, Mr Nicholson sent a memorandum to the Supervisor of Licensed Persons, Mr K D Bulloch, which included an analysis of Mr Hall's criminal record. The memorandum confirmed that Mr Hall had been "stood down" from stablehand duties pending an appearance before the Licensing Committee because of his criminal record and his failure to disclose the convictions in his stablehand registration form. Mr Nicholson then made further inquiries of the New South Wales Police Service concerning one particular offence that Mr Hall had committed. The outcome of those inquiries, as well as his criminal record in general, was then discussed at length during the proceedings before the Licensing Committee on 17 June 1999.

Mr Hall also relied upon the Board's written submissions and correspondence to the Commission, in particular letters to the Commission dated 16 September 1999, 29 November 1999, and 13 March 2001 which, he contended, quite clearly indicated that the Board had regard to the existence and nature of his criminal record.

The Board's primary submission was that the decision was not made on the basis of criminal record. The Board contended that the reason Mr Hall was required to attend an interview on 18 May 1999 was because Mr Nicholson had discovered that Mr Hall had not been truthful on his application form [6]. During the course of this interview it is said by the Board that it became apparent to Mr Nicholson that Mr Hall was being less than candid in his responses. [7]

The Board did not dispute that when the Licensing Committee considered Mr Hall's licence application on 17 June 1999, it had before it details of his criminal convictions, spent and unspent. Nor did it dispute that the Licensing Committee had regard to Mr Hall's criminal record and the nature of the conduct involved in the offences committed by the complainant [8] . Nevertheless, the Board disputed that the Licensing Committee's refusal to grant Mr Hall a licence was made "on the basis" of his criminal record. According to the Board, the Licensing Committee looked beyond the mere fact of the criminal record and decided that Mr Hall was not a "fit and proper person" because:

On that basis it was said that the decision was based on individual factors relating to Mr Hall and his conduct during the application process and not on stereotypical assumptions about his criminal record .[10]

Alternatively, the Board contended that it was not Mr Hall's criminal record per se that formed the basis of the Licensing Committee's decision, but the nature of the conduct involved in the offences he had committed. The Board contended that a criminal record is more than a mere record of criminal convictions but gives some guidance as to the type of character of the particular person. That is, the particular conduct for which the person was convicted provides a basis upon which the particular individual is to be assessed .[11]

Mr Hall admitted that when he submitted his application for a stablehand licence on 30 March 1999, he failed to disclose details of his convictions during the previous 10 years, as he was required to do. He claimed he was advised not to do so by a previous employer [12]. However, Mr Hall denied that he failed to explain his prior convictions with honesty and candour or that he failed to explain his non-disclosure. [13]

8.3 Inherent requirements of the job

Mr Hall accepted that there would be no discrimination for the purposes of section 3(1) of the HREOC Act if the exclusion from employment was based on the inherent requirements of the job [14]. Mr Hall submitted that there was nothing in the Board's evidence to the Commission that established that such inherent requirements existed. [15]

In Mr Hall's submission, the term inherent requirement is one that should be interpreted strictly. It relates to the terms of the employment contract and also to the essential functions and features of the position in question. He submitted that there should be a tight correlation between the inherent requirements of the job and the relevant "distinction", "exclusion" or "preference" .[16] Mr Hall described his job as involving washing, grooming and walking horses, and cleaning out stables. He submitted that there was nothing in the nature of his job which required him not to have a criminal record. He further submitted that there was no such operational requirement on the part of his employer. [17]

The Board's position was that if I accepted its primary submission (i.e. that its decision to reject Mr Hall's licence application was not on the basis of criminal record), I did not need to consider the question of the inherent requirements of the job . [18]

However, if I found that the Board made its decision on the basis of Mr Hall's criminal record, the Board submitted, in the alternative, that it was perfectly entitled to do so based on the inherent requirements of the job. [19]

It is the Board's case that it is an inherent requirement of any position of employment within the racing industry that the person does not have a criminal record which includes convictions that could bring the reputation of the racing industry into disrepute (the "Criminal Record Disrepute Requirement"). The essence of the Board's case as put to me in oral submissions was as follows:

When a person has a job in an industry which is regulated by statute, there is nothing unreasonable about requiring that person to meet inherent requirements that are necessary in that industry.

All the submission (sic) the respondent seeks to make is that some jobs, because they are in some industries have additional requirements attaching to them. [20]

Specifically in relation to the racing industry Counsel for the respondent stated:

…The question is are there certain types of criminal offences which if it were known publicly that it was common for persons in the racing industry, employed in the racing industry to be subject to certain types of offences, if that were known publicly, would that lessen the public confidence in the industry? To ask the question is surely to answer it.

The racing industry has historically been known as an industry where there have been persons involved who have not maintained the industry in an up-front and straight manner. It is critical that the industry not be involved in any sort of capacity in conduct which is dishonest, in conduct which could lead a reasonable member of the public to think that there is a possibility that certain things occurring in the industry are fixed, to use an expression which more particularly relates to particular races. Allegations are always made that there is a possibility that a race might be fixed.

The industry very much depends on the possibility of ensuring the public knows that this is not the case .[21]

Counsel added:

Essentially then the submission made by the respondent on the inherent requirements of the job is that the link between a precise criminal offence and the precise requirements of the job - in this case stablehand, some of the functions have been given - does not need to be so direct in an industry which itself has overriding requirements. The public confidence in the industry is overriding and overwhelming. It is mandatory for the industry
to survive.

The Board contended that the Criminal Record Disrepute Requirement is drawn from sections 13 and 14 of the TRB Act which oblige the Board in the licensing process to take into account the character and good fame of any licence applicant or licence holder. In particular, the Board is required to consider:

The Board also drew attention in its oral submissions to Local Rule 51 (extracted above) as being consistent with the proposition that the racing industry is regulated, inter alia, for the purpose of ensuring public confidence in the industry.

The Board submitted that it was therefore appropriate that it took into account the existence of any criminal record of a person applying for a licence and the nature of the convictions contained in such a record. No distinction was drawn between spent and unspent convictions.

9. Findings

9.1 Whether there was an act or practice that arose in the course of employment or occupation

Mr Hall contended that there were two relevant acts of discrimination. The first occurred on or about 20 April 1999, or shortly thereafter, being the act of requiring Mr Hall to stand down from his work as a stablehand for Ms Waterhouse, his employer (Mr Hall did not apparently stop work until approximately 28 April 1999). The second act of discrimination is alleged to have occurred on or about 17 June 1999 when the Licensing Committee refused to issue Mr Hall a licence to enable him to work as a stablehand for Ms Waterhouse.

The Board has not challenged the existence of a relevant act or practice that arose in the course of employment or occupation. Accordingly I adopt the findings in the President's Report in relation to this issue.

9.2 Whether there was a distinction, exclusion, or preference on the basis of criminal record

9.2.1 "On the basis of"

I must be satisfied, on the balance of probabilities, that the rejection of Mr Hall's licence application was on the basis of criminal record.
There appears to be no direct case law to assist in the interpretation of the words "on the basis of". In considering the expression "based on", in a similar definition of discrimination under section 9(1) of the Racial Discrimination Act 1975 (Cth) [22], the Federal Court held that the words were to be equated with the phrase "by reference to", rather than the more limited "by reason of": see Victoria v Macedonia Teacher's Association of Victoria Inc. [23]

9.2.2 "Criminal Record"

The term "criminal record" is not defined in the Regulations nor in the HREOC Act. Nor is any distinction drawn between spent and unspent convictions.

In considering how to define this term I have had regard to decisions of the High Court dealing with the interpretation of remedial legislation such as the HREOC Act.

In IW v City of Perth [24] Brennan C J and McHugh J discussed "… the rule of construction that beneficial and remedial legislation, like the Act [ie the Equal Opportunity Act 1984 (WA)], is to be given a liberal construction". Their Honours said (at 12),

It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

In that matter Kirby J noted (at 48),

The purpose of anti-discrimination legislation, such as the Act, is to ensure that, within the areas prescribed by Parliament, equals are treated equally and human rights are not violated by reference to inappropriate or irrelevant distinctions. Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation. Courts will not unduly stretch the language of such legislation. But they will be very slow to find that the effect of something which is discriminatory falls outside the ambit of the legislation, given its purpose. This is especially so where a complainant, who can establish unequal treatment, falls within the category of persons for whom anti-discrimination legislation has apparently been enacted. It is legitimate in giving effect to such legislation, to keep in mind its broad purposes and, to the full extent that the text permits, to ensure that the Act achieves its objectives and is not held to have misfired. To the extent that, in legislation such as the Act, courts adopt narrow or pernickety approaches, they will force parliaments into expressing their purposes in language of even more detail and complexity. This will increase the burden and costs of litigation. It will obscure the broad objectives of such statutes and frustrate their achievement.

In my view, the provisions of the HREOC Act should be given a liberal construction. I consider it would be unduly restrictive to define the term "criminal record" as just meaning the conviction(s) as recorded. In my view, the term encompasses not only the actual record of a conviction but also the circumstances of the conviction including the underlying conduct. [25]

The Board submitted that the term should be confined to the criminal record itself thereby drawing a distinction between the record and the circumstances of the underlying offences. In my view, such an approach involves an overly narrow construction which:

enables the ascription of negative stereotypes or the avoidance of individual assessment [which will result in] the essential object of the Act to promote equality of opportunity in employment [being] frustrated .[26]

I therefore reject that submission.

9.2.3 The Board's "candour" submission

The Board has further submitted that Mr Hall was not stood down by Mr Nicholson nor refused a license by the Licensing Committee on "the basis of" his criminal record. Rather it is said that the actions of Mr Nicholson and the Licensing Committee were undertaken on the basis of a want of candour on the part of Mr Hall on three separate occasions: at the time he completed his application form for a licence, during his interview with Mr Nicholson on 18 May 1999 and during his appearance before the Licensing Committee on 17 June 1999.

9.2.4 Mr Hall's application form

Mr Hall admits that he incorrectly answered questions on the application form regarding whether he had been convicted of a criminal offence in the last ten years and whether he was, at that time, on a bond [27]. As noted above, Mr Hall has proffered an explanation as to why he acted in that manner, being that his first employer in the racing industry (Mr Albert Stapleton) had told him to answer "no" to those questions and he had followed that practice since that time. Mr Hall gave a similar explanation to Mr Nicholson when interviewed. [28]

Mr Hall was not challenged on that explanation in cross examination and, in those circumstances, I accept his evidence on that matter.

9.2.5 Mr Nicholson's decision to stand Mr Hall down and the subsequent meeting

It is unclear, on the material before me, exactly what transpired at the meeting with Mr Nicholson on 18 May 1999. In cross examination, Mr Nicholson stated that, while he made notes recording the matters discussed in his interview with Mr Hall on 18 May 1999, he had destroyed those notes after preparing his report for the Licensing Committee [29]. However, after his meeting with Mr Hall on 18 May 1999, Mr Nicholson prepared a memorandum to Mr Bulloch. Mr Nicholson indicated, in cross examination, that that memorandum reflected the information provided to him by Mr Hall [30]. That memorandum also states:

Due to his criminal record and the fact that Hall did not disclose the convictions on his stablehand registration form when applying to be employed by Mrs Waterhouse, he has been stood down from stablehand duties and been advised that he is to appear before the Licensing Committee.

Mr Nicholson explained, in cross-examination, that the term "stood down" refers to an instruction to Mr Hall that he was not to continue working as a stablehand for Ms Waterhouse . [31]

Mr Nicholson also confirmed that, at the time that Mr Hall was stood down, the only information Mr Nicholson had before him was that contained in Mr Hall's application form and information supplied to him by the New South Wales Police in a letter to Mr Nicholson dated 14 April 1999. [32]

It seems to me clear that the act of "standing Mr Hall down" took place by reference to Mr Hall's criminal record and should therefore be characterised as an exclusion, distinction or preference made on the basis of Mr Hall's criminal record.

9.2.6 Further information obtained by Mr Nicholson

It appears that following the interview of 18 May 1999, Mr Nicholson made further inquiries of the police about the circumstances in which one particular offence was committed. That offence was one of wilful and obscene exposure. Mr Hall was convicted of that offence on 12 September 1996 [33]. In response to those inquiries, a Sergeant Murray Osborne (who appears to be a member of the New South Wales Police Service, assigned to the "Licensing Agency") wrote to Mr Nicholson and provided further details regarding the circumstances of that offence.
Sergeant Osborne's letter appears at page 39 of the Bundle. In that letter
Sergeant Osborne stated:


Dear Bob

In relation to your request concerning Mark Hall, this person was arrested by the Entrance Police in the early hours of Sunday 23.6.96. This was as a result of three teenage females flagging down a passing Police vehicle after Hall had masturbated in front of them whilst standing naked in a public street. When police spoke to Hall at the scene they found that the rear number plate of his vehicle had a chip packet taped over it. He admitted to the obscene exposure and made a hand written statement in relation to the matter….

It was said by the respondent that that information differed from Mr Hall's account of the circumstances of that offence [34]. In Mr Nicholson's memorandum to
Mr Bulloch of 18 May 1999, Mr Nicholson described Mr Hall's account of that offence as follows:


When questioned about these convictions [low range PCA, cancelled driver and wilful and obscene exposure], Hall told me that at the time of these offences he was drinking heavily and he was unable to remember any of the facts. He was further questioned about these convictions but again he told me that his memory was blacked out due to his excessive alcohol use at
that time.

As previously mentioned, his mother Barbara Hall was present during this interview and she confirmed that her son had been a heavy drinker at that time. She added that the arresting Police told her that her son had been charged with the traffic offences however he was also charged with the offence of 'Wilful and Obscene Exposure' in that he had 'flashed' (exposed) himself but she is not aware of any other information.

About this time, Hall told me that he did remember something of the incident, that about 2am or 3am one morning he stopped his motor vehicle near the Pizza Hut at Long Jetty and was urinating on the roadway when the Police attended and spoke with him. He added that the police told him that they were acting on complaints received from members of the public and he was arrested and charged with these offences. The low range prescribed (sic) concentration of alcohol is between 0.05 and 0.08


In a memorandum from Mr Nicholson to Mr Bulloch dated 4 June 1999, Mr Hall's account of the offences was described in the following terms:


When I interviewed Hall in relation to the latter offence he told me that at that time he had been a heavy drinker and he was unable to remember the facts other than his mother told me that the Police informed her that he had 'flashed' himself. Hall then stated that the Police had arrested him for urinating in a public place.


9.2.7 Proceedings at the Licensing Committee

Mr Nicholson's memoranda were both before the Board at the hearing of 17 June 1999.

The Board sought to draw particular attention to the following exchange between Mr Hall and Mr Murrihy (who attended the Licensing Board hearing and is employed by the Board as the "Chairman of Stewards"):


MR MURRIHY: On this particular night that you got caught for this exposure, did you in any way disguise the numberplate of your car?

MR HALL: No.

MR MURRIHY: Do you remember that allegation being made?

MR HALL: Not really, no.

MR MURRIHY: Did the police say anything to you about that?

MR HALL: No.

MR MURRIHY: There wasn't a cigarette box taped over the numberplate?

MR HALL: I can't remember too much about that problem.


On the basis of the above material, the Board made the following submission:


What the commission is asked is to say is it clear from that that the TRB was in a position where they had grounds to believe that Mr Hall was not being candid, was not being straight up, was not being honest. When one compares that exchange with the information that was obtained from the New South Wales Police Service, it's open for the TRB to think that they're still not getting quite the right response from Mr Hall. They have attempted to give him a chance to explain the situation and still there is an element to which it's not coming out completely candidly, even that after Mr Murrihy expressed the clear concern about honesty.

I don't make a submission that that constitutes dishonesty or that that was misleading. What I ask the commission to find is that the TRB could reasonably have found that, and in my submission it's clear they could have. Once one forms the view that the TRB on a number of different occasions have a basis for thinking that Mr Hall is not being completely straight with them, that supports the proposition that the TRB has maintained from the beginning that the reason for Mr Hall being unsuccessful was not the mere fact of the criminal record, but it was all of the circumstances relating to Mr Hall as an individual. It was his answers, it was his lack of candour. It was his answers on the application form, his answers to Mr Nicholson, his answers to the licensing committee.

They are individual factors. They are in effect matters that relate solely to Mr Hall and they don't relate to the criminal record. They are a basis upon which they can form a view about Mr Hall because they have the knowledge of the criminal record, but not because of the criminal record, the offences in the criminal record. It is because of his lack of candour in relation to them. Again as I said at the start, that is an important distinction. The respondent makes the distinction, and the respondent submits it is the essential distinction in understanding the gloss that was put on that point by my learned friend. [35]


9.2.8 My findings regarding the Licensing Committee's decision

My consideration of this issue has been made difficult by reason of the fact that the Board elected not to adduce any evidence from the members of the Licensing Committee. The only witness who gave evidence as to the basis upon which those persons reached their decision regarding Mr Hall was Mr Nicholson. Mr Nicholson stated, in re-examination, that he was told by a member of the Licensing Committee that the basis of the Licensing Committee's decision regarding Mr Hall:

….was that Mr Hall had lied or untruthfully answered his application form when submitting it to be registered as a stablehand. [36]

Mr Nicholson was unable to recall whether that information was conveyed to him immediately after the Licensing Committee's decision or some time after that decision was made [37]. In those circumstances, I accord little weight to that evidence.

The Board has made various submissions and assertions in correspondence regarding the matters to which the Licensing Committee had regard. That material might be characterised as assertion rather than evidence.

Even so, as Mr Hall's counsel has noted, some of that material (being the material provided to the Commission prior to the respondent's submissions of
31 May 2001) appeared to indicate that Mr Hall's criminal record was a factor in the Licensing Committee's decision to refuse to grant a licence to Mr Hall [38]. The Board's counsel indicated that he did not have instructions on that matter and, insofar as the Board's earlier submissions were inconsistent with the position set out in its submissions of 31 May 2001, further indicated that the Board did not press those earlier submissions.

The Board's earlier submissions and correspondence appear to me to be consistent with the following matters:


On the basis of the above material, I am satisfied that the Board rejected Mr Hall's application by reference to Mr Hall's criminal record. As such, I find that that act constitutes a further exclusion, distinction or preference based upon criminal record.

That would be sufficient to dispose of this issue. However, I shall make some further comments regarding the submissions of the respondent (as those submissions are relevant to the recommendations I make below). I find that the Board's decision was also made by reference to Mr Hall's lack of candour in his application form. Indeed, the Committee expressly raised with Mr Hall the following clause that appears at the foot of the application form:

Answers to questions in this application will be checked. Failure to answer questions truthfully will lead to a review of your registration and could result in a cancellation of your right to work in the racing industry.

The following exchange then took place:


Mr MURRIHY: Do you understand what that means?

Mr HALL: Yes, I do know.

Mr MURRIHY: What it says, in effect, is that if you don't answer questions in the form correctly your licence may well be cancelled.

Mr HALL: Yes.

Mr MURRIHY: Did you answer correctly?

Mr HALL: No.

Mr MURRIHY: So do you accept that this committee would be entitled therefore, under the terms of the licence, to cancel it?

Mr Hall: Yes.


Although I have accorded his evidence on this point little weight, that material is consistent with Mr Nicholson's evidence to the effect that he was told that
the Board's decision was based upon Mr Hall's lack of candour in his application form.

As to the other matters relied upon by the Board (Mr Hall's alleged lack of candour when being interviewed by Mr Nicholson and in the proceedings before the Committee), it is instructive to contrast the Committee's approach to the application form with its approach to the alleged discrepancy between Mr Hall's account of the wilful and obscene exposure charge and the information provided by Sergeant Osborne.

At no time, in the proceedings before the Committee, was Mr Hall asked whether he provided inaccurate information to Mr Nicholson. Nor at any time in the proceedings before the Committee was it suggested to Mr Hall that he was providing incorrect material to the committee. I note that Mr Hall accepted, during cross examination, that "one of the things [he was told by the Licensing Committee was that there] was some question over whether [Mr Hall] was completely honest in the interview with Mr Nicholson". There is no statement to that effect in the transcript of the proceedings before the Licensing Committee. In the absence of any suggestion that that transcript is incorrect or incomplete, I find that Mr Hall was mistaken in his evidence on this point.

In addition, I note that Mr Hall was not given a copy of Sergeant Osborne's letter at the hearing before the Licensing Committee.

I am not concerned, for the purposes of this inquiry, with the issue of whether Mr Hall was accorded procedural fairness. However, the fact that the allegedly inconsistent account of Sergeant Osborne was not put to Mr Hall at the Licensing Committee hearing leads me to conclude that Mr Hall's candour regarding the wilful and obscene exposure charge was not considered by the Committee to be a significant matter. It may be (although in the absence of the evidence of the attendees at the Committee meeting I am unable to do more than speculate on this point) that that approach was taken by reason of the nature of the material in Sergeant Osborne's letter. As Mr Hall's counsel has observed, that material appears to be hearsay, the provenance of which is entirely unknown. [43]

I should add that the Board did not attempt to identify, with any specificity, the elements of the material provided by Mr Hall to Mr Nicholson or the Committee said to be untrue. Nor was it suggested to Mr Hall in cross examination that he had provided material to Mr Nicholson or to the Committee that was untrue (save in so far as that suggestion was implicit in the question referred to above).

9.3 Whether the distinction nullified or impaired equality of opportunity in employment or occupation

For an act or practice to be discriminatory, the HREOC Act requires the complainant to show that the distinction, exclusion or preference has had the effect of nullifying or impairing the equality of opportunity or treatment in employment or occupation. It is not in dispute that, without a licence, Mr Hall is unable to work in his chosen career. Accordingly, I adopt the findings in the President's Report in relation to that issue.


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

9.4.1 Introduction

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

9.4.2 Relevant international jurisprudence

Paragraph (c) reproduces, in substance, article 1(2) of the Convention Concerning Discrimination in Respect of Employment and Occupation ("ILO 111"). The HREOC Act was "introduced to be the vehicle by which Australia's obligations under …[ILO 111] …are implemented".[44] As such, paragraph (c) should be construed in accordance with the construction given in international law to article 1(2) of ILO 111. [45]

The Governing Body of the International Labour Organisation (ILO) has created a committee known as the Committee of Experts on the Application of Conventions and Recommendations (the "Committee of Experts). It is "orthodox" to rely upon the expressions of opinion of the Committee of Experts for the purposes of interpreting ILO 111. [46]

The meaning of article 1(2) was discussed in Chapter 3 of the Committee of Experts' Special Survey on Equality in Employment and Occupation 1996:


Under Article 1, paragraph 2 of Convention No 111, "any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination". This exception must be interpreted restrictively. When qualifications are required for a particular job, it may not be simple to distinguish between what does and what does not constitute discrimination. It is often difficult to draw the line between bona fide requirements for a job and the use of certain criteria to exclude certain categories of workers. In order to determine the real scope of this exception, the following two points should be examined: first, the concept of a "particular job" and, second, the definition of 'inherent requirements" of a particular job.

It appears from the preparatory work for the Convention that the concept of "a particular job" refers to a specific definable job, function or task. The necessary qualifications may be defined as those required by the characteristics of the particular job, in proportion to its inherent requirements. A qualification may be brought to bear as an inherent requirement without coming into conflict with the principle of equality of opportunity and treatment. In no circumstances, however, may the same qualification be required for an entire sector of activity. Systematic application of requirements involving one or more grounds of discrimination envisaged by Convention 111 is inadmissible; careful examination of each individual case is required.

Similarly, in an ILO Commission of Inquiry regarding a complaint made against the Federal Republic of Germany , it was stated:

It needs to be borne in mind that Article 2, para 1, [of the Convention] is an exception clause. It should therefore be interpreted strictly, so as not to result in undue limitation of the protection which the Convention is intended to provide.

9.4.3 Consideration of the term "inherent requirements" in Australian authorities

The meaning of the term "inherent requirements" has also been considered by both the Federal Court and the High Court.

In Qantas Airways v Christie [48], the High Court considered the meaning of the term "inherent requirements of the particular position" in section 170DF(2) of the Industrial Relations Act 1988 (Cth). At 284, Brennan CJ stated:


The question 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 definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must 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.


At 295, Gaudron J stated:


It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.

Much of the argument in this Court was directed to the question whether the expression "inherent requirements" in s 170DF(2) should be construed broadly or narrowly. It was put on behalf of Mr Christie that it should be construed narrowly because it is an exception to or exemption from the prohibition on termination on discriminatory grounds and a broad construction would be contrary to the evident purpose of s 170DF, namely, to prevent discriminatory conduct. I doubt whether s 170DF(2) is an exception or exemption of the kind which the argument assumes. Rather, I think the better view is that sub-s (2) is, in truth, part of the explication of what is and what is not discrimination for the purposes of s 170DF of the Act. However, that issue need not be explored for there is nothing to suggest that the expression "inherent requirements" in s 170DF(2) is used other than in its natural and ordinary meaning. And that meaning directs attention to the essential features or defining characteristics of the position in question.


At 316, Gummow J said that the term "inherent" suggests "an essential element of that spoken of rather than something incidental or accidental".

Similarly, in X v The Commonwealth , [49] Gummow and Hayne JJ stated that the inherent requirements of employment are those which are "characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral". Their Honours went on to say (at 208):

It follows from both the reference to inherent requirements and the reference to particular employment that…it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.

In that same case, McHugh J stated (at 189-90):


Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a
particular employment.


It follows from X's Case and Christie that identification of inherent requirements requires one to take into account the surrounding context of the particular position, employment or job and not merely the physical or mental capability of the employee to perform a task.
I also note that some members of the Court in Christie considered whether the use of the word "position" in section 170DF(2) rather than "job" (which is used in both ILO 111 and the HREOC Act) was material. For example, at 304, McHugh J stated:

In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job". A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.

In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between "a particular position" and "a particular job". In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the "job" of President if that term refers to the work done by the President. [50]


The courts have also considered the meaning of the term "inherent requirements" in the context of paragraph (c) of the definition of discrimination in the HREOC Act. In Commonwealth of Australia v Human Rights and Equal Opportunity Commission , [51] Katz J noted that the above extracted passage from the ILO's Commission of Inquiry favoured a strict construction of that term. His Honour also appeared to accept as applicable the distinction drawn by Gummow and Hayne JJ in X's Case between "characteristic or essential" requirements of the employment with those which could be described as "peripheral".

9.4.4 "Based on"

Having identified the inherent requirements of the particular job, the Commission must then consider whether the relevant exclusion, distinction or preference is "based on" those inherent requirements.

In Commonwealth v Human Rights and Equal Opportunity Commission and Others , [52] Wilcox J interpreted the phrase as follows (158 ALR 468 at 482):

In the present case, there are policy reasons for requiring a tight correlation between the inherent requirements of the job and the relevant "distinction", "exclusion" or "preference". Otherwise, as Mr O'Gorman pointed out, the object of the legislation would readily be defeated. A major objective of anti-discrimination legislation is to prevent people being stereo-typed; that is, judged not according to their individual merits but by reference to a general or common characteristic of people of their race, gender, age etc, as the case may be. If the words "based on" are so interpreted that it is sufficient to find a link between the restriction and the stereo-type, as distinct from the individual, the legislation will have the effect of perpetuating the very process it was designed to bring to an end.

The Full Court affirmed that approach in Commonwealth v Human Rights and Equal Opportunity Commission and Others .[53] In particular, Black CJ discussed the phrase "based on" as follows (at 235 [35]):

In determining how the expression "based on" is to be interpreted in the present context, regard must be had to the objects of the Act. The Act was introduced to be the vehicle by which Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111) are implemented (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), outline). One of the primary purposes of the Act consistent with the purpose of the ILO Convention itself - is the promotion of equal opportunity in employment.

The Chief Justice continued (at 235 [37]):

It is for this reason that I would reject the appellant's argument regarding the expression "based on" in par (c) of the definition of "discrimination". The essence of that argument is that "based on" requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the Act's object of promoting equality of opportunity in employment by, in effect, permitting the assessment of persons' suitability for a particular job on grounds other than their individual merit. The nebulousness of notions of "logic" in this area makes it an inappropriate test for discrimination.

He further added (at 237 [40]):

In my view, the definition adopted by Wilcox J - that is, as requiring a connection that is "tight" or "close" - sits easily with the language of par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided.


9.4.5 Burden of persuasion

Finally, I note that the respondent bears the burden of persuasion on this issue. [54]

9.4.6 Identification of Inherent requirements in this case

What are the inherent requirements of Mr Hall's job as a stablehand?

I consider the essential features and functions of Mr Hall's job are as described in paragraph three of his affidavit dated 2 April 2001.The central function of Mr Hall's job is to care for the horses on a day to day basis. The specific duties of that job entail feeding, grooming and walking horses, and mucking out stables as required. It may be assumed, although it was unnecessary to consider this for the current matter, that those functions and duties give rise to certain inherent requirements of a physical nature.

It follows, from Christie and X's Case, that in determining the inherent requirements of Mr Hall's job, I must also consider the broader social, legal and economic context in which Mr Hall's job is located. In regard to that issue, the complainant submitted that there was no evidence before me that indicated that there were any relevant inherent requirements arising from Ms Waterhouse's operational requirements [55]. Indeed, as the complainant noted, the evidence appeared to be to the contrary. Included in the Bundle were the following documents:

As noted above, the Board contended that the Criminal Record Disrepute Requirement was an inherent requirement of the job of stablehand [58]. The Board suggested that the inclusion of the Criminal Record Disrepute Requirement as an inherent requirement of the particular job was supported by sections 13 and 14 of the TRB Act and Local Rule 51 [59] . It was said that those provisions indicated that the racing industry was regulated for a number of specific purposes, including ensuring public confidence in the industry .[60]

However, as was noted by Mr Hall's Counsel, the TRB Act is silent on the issue of whether a stablehand should be licensed or be refused a licence by reason of the fact that that person has a criminal record or a criminal record containing convictions of a particular nature. In contrast, the TRB Act makes specific provision for the Racing Industry Participants Advisory Committee. A person is not eligible to serve on that Committee if, inter alia, that person:

during the previous 10 years has been convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or more, or convicted elsewhere than in New South Wales of an offence which, if committed in New South Wales, would be an offence so punishable .[61]

It may be accepted that such a provision will give rise to an inherent requirement in the broader sense discussed in Christie and X's Case [62]. However, the absence of a comparable provision in relation to a person working as a stablehand leads me to conclude that the TRB Act does not, in itself, give rise to a similar inherent requirement in respect of that job.

As Mr Hall's counsel noted, the Board presented very little other evidence which indicated that the Criminal Record Disrepute Requirement was an inherent requirement of the job of stablehand. The only evidence touching on that matter was given by Mr Nicholson in response to questions asked by the Board's Counsel and by myself.

That evidence was as follows:

MR CLARKE: Why do you say the racing industry in particular has a need for emphasising the public confidence?

MR NICHOLSON: The licensing board has that emphasis to rely on the honesty and truthfulness of people making it for the confidence of the public. The racing industry is a very big industry that attracts a lot of attention. It is an entertainment and gambling industry, and as such the committees then want to show that the honesty and integrity of all persons working through it is right and correct, to show a confidence to the public; those people that do attend and go to our race meetings.

THE COMMISSIONER: ………… I'm having a problem with that issue of public confidence. I have a difficulty to understand how employing him would undermine that public confidence. Public confidence is something which is in the media, it's something which is basically in public domain. Here you are having a person who got quite a good reference from Mrs Waterhouse, who is really an icon of the industry, saying that she would employ him again. Could you perhaps try to establish that link or explain to me more in the case of circumstances as we have got here how, having Mr Hall in continuous employment, would undermine in your opinion the public confidence in the industry?

MR NICHOLSON: Yes, sir. As I say, all facets of the industry, all facets of the racing industry rely on the honesty and integrity of those persons working within it. Persons that are licensed or registered have to obey the rules of racing, rules that govern racing, that those matters in - for instance or for example I should say, persons that are licensed or registered in the industry may have to perhaps appear before stewards in relation to inquiries. In my opinion, the honesty and truthfulness of people even in that capacity as you have just described, sir, must be always honest and truthful. We do rely on every person that works within the industry, regardless of the position that they do hold, that they do adopt that attitude.

That evidence does not do any more than state, in very general terms, that:

That evidence does not, in my view, establish that the Criminal Record Disrepute Requirement is an inherent requirement for the job of stablehand. [63]

It may establish that the inherent requirements of each particular job in the racing industry will include requirements that may be broadly labelled as "fitness and propriety" requirements. The precise content of those inherent requirements must be considered in respect of each job. Regrettably, as Mr Hall's counsel contends [64], the evidence before me does not establish what specific "fitness and propriety" requirements might be included as inherent requirements of the job of stablehand.

It is quite unsatisfactory to approach this issue in terms of "industry wide" requirements. That can be seen from the following statement of the ILO Committee of Experts (included in the extract above):

…In no circumstances, however, may the same qualification be required for an entire sector of activity. Systematic application of requirements involving one or more grounds of discrimination envisaged by Convention 111 is inadmissible; careful examination of each individual case is required.

In light of the above, I am unable to be satisfied, on the material before me, that the inherent requirements exception applies in this case.

9.4.7 "Based on"

In light of my findings above, it is unnecessary for me to consider the further question of whether the exclusion, distinction or preference applied to Mr Hall was "based on" the inherent requirements of the position of stablehand.

Indeed, it is not possible for me to apply that test in any meaningful fashion given that the evidence does not allow me to identify, with any particularity, any "fitness and propriety" requirements that may be inherent requirement of the position of stablehand.

There are obvious difficulties in seeking to consider whether there is a "close" or "tight" connection between the exclusion, distinction or preference applied to a particular complainant and alleged inherent requirements that are vague and inadequately specified.


10. Conclusion

For the reasons set out above, I am therefore of the view that Mr Hall has been discriminated against on the basis of his criminal record.


11. Recommendations


11.1 Introduction

Having found that the acts or practices complained of constituted discrimination under the HREOC Act, I am required to consider what recommendations I should make.

At the hearing of this matter, Mr Hall's counsel made detailed submissions regarding the recommendations I should make in the event that I found, as I have done, that the acts or practices in question constituted discrimination [65]. In respect of one aspect of those submissions (being the submissions regarding recommendations for the payment of compensation) I have sought further submissions from the parties, which I will describe in further detail below.

11.2 Recommendations regarding the payment of compensation

Section 35(2)(c)(i) provides that the Commission may include in its notice of findings and reasons a recommendation for:
the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice.

In oral submissions, Mr Hall sought a recommendation of that nature. Mr Hall's Counsel stated:

In our submission we say there are two bases on which the claim or a recommendation could be made for compensation. The first is it is clear that as a direct result of Mr Nicholson's actions of having Mr Hall stood down, he was no longer able to work as a stablehand, and he was no longer able to continue employment that he certainly enjoyed and hoped that would be an ongoing career for him.

We say as a direct result of that action, that there is ample evidence to sustain a recommendation for compensation for the wages that Mr Hall has lost since that decision, and in Mr Hall's affidavit he sets out the average weekly earnings that he was earning at the time which is $486.62, and if one takes the period 28 April 1999 to say 17 October 2001, that being 129 weeks, comes out at $62,773.98. In addition to that claim we would also seek that there be interest for those losses at the rate that interest is dealt with under the Federal Court Rules which is 10 per cent.

Commissioner, I think you were asking earlier in relation to the Newstart or social security benefits that were obtained, and we can indicate that based on 125 weeks at $178.90, that the total Social Security income is $22,362.50. In our submission we say that there should be no deduction made with respect to the amounts received for social security because the provisions of the Social Security Act make clear what happens if a person receives compensation for lost wages, that there then must be a repayment back to the Department of Social Security to cover those sums, and so it is not really a matter which is cured by any deduction made as part of a recommendation or a payment. But that's really a matter for complainants such as Mr Hall himself to determine.

We also say in relation to the compensation that there should be compensation for the humiliation that Mr Hall has endured as a result of this decision. It has caused him much personal distress. It has also damaged his reputation particularly among his work colleagues given the circumstances in which he was stood down and his inability to find ongoing employment in the industry, and that there should also be a component for general damages in relation to those losses that he suffered.

Mr Hall's counsel indicated that a recommendation for compensation in respect of lost wages was only sought for wages lost up to the date of hearing (being 17 October 2001). No recommendation for compensation was sought in respect of future loss . [66]

The respondent did not seek to make any submissions on the issue of recommendations at the hearing.

Having reviewed the material presented at the hearing, I became concerned by two issues regarding any recommendation for compensation:

I therefore invited the parties to make submissions regarding those issues, which appear as follows:

I discuss those submissions further below.

11.3 Assessment of uncertain damages

As regards this issue, Mr Hall's submissions may be summarised as follows:

The Board, in its submissions:

In his reply, Mr Hall contended that there was no evidence to support the contentions of the respondent and that the material before the Commission demonstrated that Mr Hall's criminal record "played a dominant role in the Respondent's deliberations".

I find myself unable to agree entirely with the submissions of either party on this issue.

The Court in Sheiban placed caveats upon the indiscriminate application of tort principles to human rights matters. Nevertheless, Sheiban is authority for the proposition that I should seek, so far as is possible by a recommendation for compensation, to place the injured party in the same position as if the wrong had not occurred .[76]

This involves asking: what would have happened had the Board not engaged in an act or practice that constituted discrimination? That hypothetical question brings with it elements of uncertainty. The uncertainty arises by reason of the fact that there is some material before me that indicates that both Mr Nicholson and the Licensing Committee may have made the same decisions on different and non-discriminatory bases (I address that material further below). Given that Mr Hall has sought a recommendation for compensation for the period up to the date of the hearing of this matter (being 17 October 2001), I must consider additional elements of uncertainty which may arise from the following contingencies:

The assessment of damages in hypothetical fact situations has been discussed in a number of High Court cases. In Malec v JC Hutton Pty Limited , [78] Deane, Gaudron and McHugh JJ said:

If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring....But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.

Malec was a personal injury case. However, in Sellars v Adelaide Petroleum , [79] the High Court made clear that the approach to the assessment of damages discussed in Malec has more general application. At 355, Mason CJ and Dawson, Toohey and Gaudron JJ stated:


The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which
is inapplicable.

The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages.

Those principles appear to have been accepted as applicable to human rights matters brought under Federal Legislation, including in relation to recommendations made under section 35(2)(c)(i) of the HREOC Act [80]. There also appears to be some acceptance that the Sellars loss of a chance analysis will be applicable to an assessment of damages for a breach of an obligation under a human rights treaty .[81]

Mr Nicholson's memorandum of 18 May 1999 indicates that there were two bases underlying his decision to stand Mr Hall down, being Mr Hall's criminal record and Mr Hall's failure to disclose his convictions on his application form. It is unclear to me whether the latter reason alone would have led Mr Nicholson to stand Mr Hall down and no evidence was elicited from him regarding that issue [82] I nevertheless consider that there was a possibility that Mr Nicholson would have stood Mr Hall down solely on the basis of the manner in which Mr Hall completed his application form.

As noted above, I have very little evidence before me regarding the basis of the Licensing Committee's actual decision (let alone evidence as to the manner in which the Committee might have proceeded if it had not discriminated against Mr Hall). However, I have found above that the Licensing Committee's decision was made by reference to Mr Hall's lack of candour in relation to his application form as well as his criminal record.

Mr Hall has given evidence to the effect that he is aware that stablehands, who did not admit to having a criminal record on their application form, were suspended for a period of three months. Mr Hall was not cross examined on that evidence. While it is difficult to place too much weight on such evidence (which appears to me to be hearsay), particularly without knowing further details of the circumstances surrounding those suspensions, it supports a conclusion that lack of candour on an application form for a licence was not, at the relevant time, necessarily considered by the Board to be a sufficient basis for cancelling or refusing a licence.
On the other hand, it was directly put to (and accepted by) Mr Hall at the hearing of the Licensing Committee that the manner in which Mr Hall had completed his application form gave the Committee an "entitlement", without more, to refuse Mr Hall a licence.

Although necessarily approximate, I consider that the appropriate course is to discount Mr Hall's recommendation for compensation in respect of lost wages by 50 percent to reflect the contingencies that both Mr Nicholson and the Licensing Committee would have made the same decisions on non-discriminatory bases.

As to the other contingencies identified above, there is no evidence before me to suggest that there would have been any other obstacle to Mr Hall renewing his licence in the 1999/2000 year, the 2000/2001 year or the 2001/2002 year. As regards Mr Hall's studies, it is implicit, although not directly stated by Mr Hall in his affidavit, that he pursued those studies by reason of the fact that he was unable to find an alternative job. In those circumstances, I do not consider it appropriate to discount Mr Hall's damages to take account of those contingencies.

However, Mr Hall's evidence regarding the Board's practice of suspending stablehands for lack of candour on an application form leads me to conclude that there was a possibility that the Board would have imposed a suspension of a similar duration upon Mr Hall (during which period, he would not have earned wages).

As noted above, the evidence regarding that matter is not particularly satisfactory. In those circumstances, while I consider it appropriate to further discount the recommendation for compensation for lost wages in respect of the three months following the Licensing Committee's decision, I will restrict that additional discount factor to 20 percent.

11.4 Mitigation

I do not consider that Mr Hall is correct in contending that mitigation is irrelevant to recommendations made under section 35(2)(c)(i) of the HREOC Act. The duty to mitigate appears to be accepted as applicable to awards of compensation under Australian discrimination legislation [83]. I would, however, agree with Mr Hall's contention that the general principles regarding mitigation must be applied with some caution in this area, particularly given the note of warning sounded in Sheiban. [84]

However, it is unnecessary to express a concluded view on those matters, given that (assuming the duty to mitigate does apply to this area) the Board bears the burden of persuasion in any controversy as to whether Mr Hall has mitigated his loss .[85] I am not satisfied that the Board has discharged that burden.
Mr Hall gave evidence to the effect that he had been unable to find alternative work [86] . He also gave evidence to the effect that he had undertaken further studies [87]. He was not cross examined on that evidence.

In those circumstances, I feel that I am unable to be satisfied that Mr Hall has failed in his duty to mitigate his loss. I accept that he took reasonable steps to minimise his loss by looking for alternative work. I further accept that, having first sought alternative work, it was reasonable for him to seek to mitigate his loss by retraining by way of further study.

11.5 Receipt of benefits

The respondent, in its submissions of 7 March 2002, sought to argue that the complainant's receipt of unemployment and austudy benefits should be deducted from any recommendation regarding damages. The respondent relied upon Redding v Lee [88] as supporting that proposition (in that case, the majority held that receipt of unemployment benefits should be taken into account in an assessment of damages).

The respondent's submissions on this issue overlook the fact that the High Court in Redding v Lee was dealing with a different piece of legislation, being the Social Security Act 1949 (Cth). That act apparently made no relevant provision for the repayment of unemployment benefits in the event that a plaintiff who had received such benefits was successful in an action for lost wages relating to the period of receipt. The relevant repayment provisions were, at that time, limited to
"sickness benefits" .[89]

However, if the Social Security Act 1949 (Cth) had provided for the repayment of unemployment benefits, it seems clear that the High Court would not have deducted amounts from the award of damages in respect of those benefits. Gibbs CJ noted (at 125):

In the case of a benefit provided under statutory authority, the intention of the legislature, in providing the benefit, must be gleaned from the statute itself as a matter of interpretation. If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment….

His Honour dissented in that case. However, that part of his Honour's judgment was cited, with apparent approval, in a unanimous judgment of the High Court in Manser v Spry .[90]

As Mr Hall has stated in his submissions, the Social Security Act 1991 (Cth) provides for the secretary to serve on the recipient of compensation a notice requiring that person to make certain repayments to the Commonwealth [91] in respect of, inter alia, a newstart allowance or austudy payments [92]. In my view, it follows (from Redding and Manser ) [93] that one does not take the payment of those benefits into account when making a recommendation for compensation under section 35(2)(c)(i) of the HREOC Act.

11.6 General Damages

I accept that Mr Hall is entitled to a recommendation for compensation in the nature of general damages for distress and loss of reputation. I consider it appropriate to recommend that the Board pay Mr Hall the amount of $5000.00 in respect of that head of my recommendation for compensation.

11.7 Pre-interest compensation reflecting contingencies

Subject to my recommendations regarding interest (below), I would therefore recommend that the Board pay to Mr Hall the amount of $33,303.05, which is comprised of:

11.8 Interest

Mr Hall sought interest on his claim for loss of wages.

Section 35(2)(c)(i) of the HREOC Act does not expressly provide that recommendations for payment of compensation should include provision for interest. However, I note again that the object of a recommendation under section 35(2)(c)(i) is to place the injured party in the same position they would have been if the discriminatory act had not taken place. In light of that general principle, I consider that, in an appropriate case, a recommendation should include an amount for interest for the period prior to the issuing of the notice under section 35(2). Such a recommendation seeks to compensate a complainant for having been kept out of money that was theoretically due to them prior to that date.

I consider that that approach is consistent with the principles applied at common law. It is clear that there is no common law power to make an order for the payment of interest to compensate for the delay in obtaining payment of what the Court assesses to be the appropriate measure of damages for a wrongful act [94] . However, it is further clear that the ordinary principles regarding the recovery of common law damages will, in an appropriate case, entitle a plaintiff to an actual award of damages as compensation for a wrongfully and forseeably caused loss of the use of money .[95]

Those or similar principles have been applied to award interest on awards for loss of earnings made under Federal anti-discrimination legislation. For example, in Rees v Lemeki & Govt Papua New Guinea [1997] HREOCA 27 (27 May 1997) H95/85, Commissioner Atkinson included an amount for interest on pre-trial loss of earnings, stating:


An award of interest up to the date of judgment is an award of interest in the nature of damages: Fire & All Risks Insurance Co. Ltd. v. Callinan (1978) 140 CLR 427 at 433 .
This statement acknowledges that the award of interest is an integral element in the attainment of the object of damages, namely to compensate the complainant for the injuries suffered. Hence the award of interest is compensatory in character. While "interest should not be awarded as compensation for the damage done" (Jefford v. Gee [1970] 2 Q.B. 130 at 146), the award of interest is nevertheless an essential element in the achievement of true compensation for that damage. In Thompson v. Faraonio (1979) 54 A.L.J.R. 231 at 233, the Privy Council stated that "the reason for awarding interest is to compensate the Plaintiff for having been kept out of money which theoretically was due to him [or her] at the date of his [injury]": see also Batchelor v. Burke (1981) 148 CLR 448 at 455 per Gibbs C.J.; M.P.B.(S.A.) Pty Ltd v. Gogic (1991) 171 CLR 657 at 663-665.

The award of interest for the period of delay in payment between the date of accrual of a cause of action and the judgment affords a fair legal measure of compensation: Pheeney v. Doolan [1977] 1 N.S.W.L.R. 601 at 613 per Reynolds J.A. Thus, it is the award of damages and, where appropriate, interest awarded on damages for the period up until the decision takes effect which allows the complainant to be placed in or restored to the situation, as far as money can do, in which she would have been but for the respondents' acts of sexual harassment.

I therefore award 6% interest on the amount of pre-trial loss of earnings.....

The respondent has not challenged the complainant's claim for interest based on the Federal Court Rules. I note that the respondent referred to a figure of 10 percent per annum. I assume that this was an error, as the rate set out in the Federal Court Rules is 10.5 percent . [96]

I consider that a difficulty arises by reason of the fact that the complainant has not sought to particularise the periods over which his wages were paid and the dates upon which he would have expected to be paid. It seems to me unsatisfactory that I approximate those matters. Nevertheless, having determined that I should recommend the payment of compensation under this head, this is a matter that can be readily dealt with by the parties. I therefore recommend that the respondent pay to the complainant interest at the rate of ten point five percent per annum on each of the complainant's anticipated wage payments (adjusted so as to take into account the abovementioned contingencies) for the period from the date of expected payment to the date of this.

11.9 Other recommendations

At the hearing, Mr Hall also sought a recommendation that the Board review its processes in relation to the use of criminal records in the following terms:

The other recommendations that we seek are to review the board's processes in relation to determining the use of criminal records, the nature of disclosure of criminal records. It's apparent from this case that while the board says it was only looking at criminal records for the past 10 years, it had before it convictions that would be treated for both New South Wales and Commonwealth purposes as spent convictions. These are convictions which Mr Hall is not legally required to disclose and in our submission should not have been made available to the board, and further once the board had received that spent conviction information, it took no steps to remove that material as part of the material which then went on for consideration by the licensing committee.
It's important that this case be viewed as one of the general application of human rights. While it deals with discrimination in the context of employment, this is legislation which is designed to protect the human rights of workers, but also to promote human rights more generally. For that reason, commissioner, we say that in any recommendations, regard to be had to the operation of article 17 of the International Covenant on Civil and Political Rights, and the extent to which the protections and guarantees against the arbitrary interference with a person's privacy should also be a relevant consideration in looking at the board reviewing its procedures so that appropriate procedures can be put in place in terms of dealing with criminal records and dealing with how those records are then used in the case of ongoing employment.
If they are to be used, they must be used to make appropriate and proper assessment of whether or not a person is able to do the inherent requirements of a particular job, not the inherent requirements as asserted of a general industry, but of the particular job, and the failure for the board to have undergone that exercise in this case is why we say there can be only one conclusion, and that is that the findings made by the president in February of this year should be confirmed, and that the findings in this commission should be that there has been discrimination, and that there is no exception or exemption that would apply to excuse the discrimination in these circumstances.

That seems to me to be an appropriate and constructive recommendation. I therefore recommend, under section 35(2)(b) of the HREOC Act, that the Board conduct a review of its processes regarding the use of criminal records, having regard to the following matters:

That review should have close regard to the principles outlined in this notice and my findings regarding the acts or practices of the Board in respect of Mr Hall. The Commission would be happy to assist the Board in that review process.

Dr Sev Ozdowski OAM
Human Rights Commissioner
24 April 2002

1. Details of the complaint and response are contained in the extract of the 'Report of an unconciliable complaint under the Human Rights and Equal Opportunity Commission Act 1986' (see further in section 6 below).
2. In Commonwealth of Australia v Human Rights & Equal Opportunity Commission and Hamilton [2000] FCA 1854 Katz J at [ 9] said "As contemplated by subpar (b)(ii) of the definition of "discrimination", regulations have been made (under s 50 of the Act) declaring certain distinctions, exclusions or preferences that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, additional to the distinctions, exclusions or preferences set out in par (a) of the definition, to constitute "discrimination" for the purposes of the Act: see the Human Rights and Equal Opportunity Commission Regulations (Cth) ("the Regulations"). Among such distinctions, exclusions or preferences are (and have been since 1 January 1990: see reg 2 of the Regulations) those "made ... on the ground of ... age": see subpar 4(a)(i) of the Regulations. (It is not clear to me why that provision uses the word "ground" instead of the word "basis", the latter word being the one which is used at the equivalent point in par (a) of the definition of "discrimination" in subs 3(1) of the Act. For present purposes, I will proceed on the basis (or ground(!)) that the words were intended to be interchangeable."
3. Section 30(1) provides:
"(1) In this Division-
"act" includes an act done-
(a) by or on behalf of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the act was done within a State;
"practice" includes a practice engaged in-
(e) by or on behalf of a State or an authority of a State;
(f) under a law of a State;
(g) wholly within a State; or
(h) partly within a State, to the extent to which the practice was or is engaged in within a State."
4. See paragraph (c) of the definition of discrimination in section 3(1) of the HREOC Act.
5. See eg Transcript pages 42-47.
6. See paragraph 13(c) of the Board's submissions of 31 May 2001.
7. See Transcript pages 53-4.
8. See paragraph 16 of the Board's submissions of 31 May 2001.
9. See paragraph 18 of the Board's submissions of 31 May 2001.
10. See paragraph 19 of the Board's submissions of 31 May 2001.
11. See paragraphs 20-23 of the Board's submissions of 31 May 2001.
12. See paragraph 6 of Mr Hall's affidavit of 2 April 2001.
13. See eg Transcript pages 64-5.
14. See paragraph 22 of Mr Hall's submissions of 2 April 2001.
15. See paragraph 25 of Mr Hall's submissions of 2 April 2001.
16. See paragraphs 28-33 of Mr Hall's submissions of 2 April 2001.
17. See paragraph 34 of Mr Hall's submissions of 2 April 2001.
18. See eg Transcript page 4.
19. Ibid.
20. See Transcript page 59.
21. See Transcript at page 60.
22. Section 9(1) provides:
9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
23. (1999) 91 FCR 47
24. (1997) 191 CLR 1
25. That construction is consistent with the recommendations made by the Australian Law Reform Commission ("the ALRC") in its "Spent Convictions" Report, 1987, No 37 AGPS p.53 [78]. In that report the ALRC recommended that the Regulations cover "discrimination" on the ground of criminal record, or of facts relating to a conviction. The Explanatory Statement accompanying the Regulations makes clear that the Regulations were intended to implement that recommendation. See also Woodward Stores (British Columbia) Ltd v McCartney (1983) 4 CHRR D/1325 at D/1327 where British Columbia legislation dealing with criminal record discrimination was given a similarly wide construction, pursuant to which "charge" was taken to mean "the things specified in the information and the circumstances surrounding them" rather than simply "the nature of the offence charged".
26. Commonwealth v Bradley (1999) 95 FCR 218 at 235 per Black CJ ("Bradley's case").
27. See Transcript, page 6
28. See Mr Nicholson's memorandum to Mr Bulloch of 18 May 1999.
29. See Transcript page 17.
30. See Transcript page 19.
31. See Transcript page 15.
32. See page 37 of the Bundle.
33. See page 37 of the Bundle.
34. See transcript at page 54.
35. Transcript pp 55-56
36. Transcript p 28.
37. See transcript pp 31-32.
38. See transcript pages 45-47 and the Board's letters and submissions to the Commission of 16 September 1999 (at page 32 of the Bundle), 29 November 2000 (at page 51 of the Bundle) and 13 March 2001.
39. See Transcript page 22.
40. As the respondent has described it: see the respondent's submissions of 13 March 2001.
41. See Transcript page 24.
42. See page 7 of the transcript of the proceedings before the Licensing Committee.
43. See Transcript page 63.
44. Commonwealth v Bradley (1999) 95 FCR 218 at 235 [35]
45. Commonwealth v HREOC (2000) 180 ALR 635 per Katz J at 644 [36]
46. Ibid.
47. (1987) 70 ILO Official Bulletin, Ser B, Supp. 1.
48. (1998) 193 CLR 280
49. Ibid, per Gummow and Hayne JJ at 208.
50. See also Gummow J at 316 and Kirby J at 331
51. (2001) 180 ALR 635
52. (1998) 158 ALR 468
53. (1999) 95 FCR 218
54. Hamilton's Case at 652 [61]
55. See transcript p 38 and the complainant's submissions of 2 April 2001 at paragraph 34
56. See page 13 of the Bundle
57. See page 13 of the Bundle.
58. ie that it is an inherent requirement of any position of employment within the racing industry that the person does not have a criminal record containing convictions that could bring the reputation of the racing industry into disrepute (see paragraphs 24 and 25 of the respondent's submissions of
31 May 2001 and transcript page 60).
59. Summarised in section 2.2 above.
60. See Transcript page 59.
61. Section 32 of the TRB Act.
62. Of course, if such a provision applied in a particular case, there would be no relevant act or practice into which the Commission could inquire (see Commonwealth of Australia v HREOC (1997) 78 FCR 208 at 215).
63. Although, in light of my findings, it is unnecessary to decide this issue, it may be that the Criminal Record Disrepute Requirement is one which falls into that category discussed by McHugh J in Christie: ie a requirement that may be an inherent requirement of the "position", but not an inherent requirement of the "job".
64. See transcript page 40
65. See particularly at transcript pages 47-49.
66. See Transcript pages 67-8.
67. (2000) 104 FCR 464
68. (1989) 20 FCR 217.
69. Citing Shelton D, "Remedies in International Human Rights Law" OUP 1999 at 214-291.
70. See paragraph 10 of the Board's submissions of 7 March 2002.
71. See at 239
72. See paragraph 11 of the Board's submissions of 7 March 2002, citing French J at 281 of Sheiban.
73. See paragraph 12 of the Board's submissions of 7 March 2002.
74. See paragraph 24 of the Board's submissions of 7 March 2002.
75. See paragraph 25 of the Board's submissions of 7 March 2002.
76. As per Lockhart J at 239. See similarly, in the context of the HREOC Act, Wilcox J in Peacock at 483.
77. See paragraph 5 of Mr Hall's affidavit of 2 April 2001.
78. (1990) 169 CLR 638
79. (1994) 179 CLR 332
80. See Peacock at 484, [55].
81. See Shelton D, "Remedies in International Human Rights Law" OUP 1999, particularly at 232, 236 and 242.
82. The Commission is not bound by the rules of evidence. However, I note that courts have held that "opinion" evidence regarding what would have happened in a hypothetical fact situation is not necessarily inadmissible (see eg Hughes Aircraft Systems International v Airservices Australia [No 3] (1997)1537 FCA).
83. See, by way of example, Cummaudo v Aerospace Technologies of Australia Pty Limited and Anor (1990) EOC 92-316.
84. See paragraph 15 of Mr Hall's submissions of 12 March 2002.
85. Medlin v State Government Insurance Commission (1995) 182 CLR 1. See also, in the area of discrimination law, Everett v Copperart (1997) QADT 14.
86. See paragraph 25 of his affidavit of 2 April 2001.
87. See paragraph 5 of his affidavit of 2 April 2001.
88. (1983) 151 CLR 117
89. Although the periods for which compensation was assessed and unemployment benefits received are not entirely clear from the report of Redding v Lee, both section 115(3) of the Social Security Act 1949 (which was repealed with effect from 1 August 1982) and Division 3A of Part VII (which was substituted for the old version of section 115 from 1 August 1982) were confined to "sickness benefits".
90. (1984) 181 CLR 428 at 436-7.
91. See Part 3.14 of the Social Security Act 1991 (Cth), particularly sections 1178 and 1179.
92. The repayment provisions in part 3.14 of the Social Security Act 1991 apply to "compensation affected payments". That term is defined, in section 17(1) of the Social Security Act 1991 to include a "social security benefit". That term is in turn defined in section 23(1) of the Social Security Act 1991 to include austudy payments and newstart allowances.
93. See also Marinko v Masri [1999] NSWCA 364 (5 October 1999) where the existence of the current repayment provisions was relied upon to disregard carer's benefits in the assessment
of damages.
94. Hungerfords v Walker (1988) 171 CLR 125 at 152 per Brennan and Deane JJ.
95. Ibid. See also 143 and 149 per Mason CJ and Wilson J.
96. See O35 r8.
97. In Commonwealth of Australia v Human Rights & Equal Opportunity Commission and Hamilton (2000) 180 ALR 635 (Hamilton's case) Katz J at 638 [9] said "As contemplated by subpar (b)(ii) of the definition of "discrimination", regulations have been made (under s 50 of the Act) declaring certain distinctions, exclusions or preferences that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, additional to the distinctions, exclusions or preferences set out in par (a) of the definition, to constitute "discrimination" for the purposes of the Act: see the Human Rights and Equal Opportunity Commission Regulations (Cth) ("the Regulations"). Among such distinctions, exclusions or preferences are (and have been since 1 January 1990: see reg 2 of the Regulations) those "made ... on the ground of ... age": see subpar 4(a)(i) of the Regulations. (It is not clear to me why that provision uses the word "ground" instead of the word "basis", the latter word being the one which is used at the equivalent point in par (a) of the definition of "discrimination" in subs 3(1) of the Act. For present purposes, I will proceed on the basis (or ground (!)) that the words were intended to be interchangeable."

Last updated 25 September 2002.