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HREOC Report No.14

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

HREOC Report No.14

Contents

1. INTRODUCTION

2.
THE COMPLAINT

3.
PROGRESS OF THE INQUIRY

4. ORAL
EVIDENCE FOR THE RESPONDENT

5.
WRITTEN SUBMISSIONS OF THE PARTIES

6.
FINDINGS

7.
SUBMISSIONS ON RECOMMENDATIONS

8.
DISCUSSION OF RECOMMENDATIONS

9. NOTICE
OF FINDINGS OF THE COMMISSION

10.
REASONS FOR FINDINGS

11.
RECOMMENDATION

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

1. Introduction

1.1 The Commission's
jurisdiction

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

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

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

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

1.2 Outline
of the complaint

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

1.3 Findings
and recommendations

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

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

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

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

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

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

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

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

2.
The complaint

2.1 The nature
of the complaint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.2 The response

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

2.2.1 Promotion
selection process

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

2.2.2 Promotion
eligibility

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

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

2.2.3 Promotion
selection criteria

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

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

2.2.4 Longer
term career potential

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

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

2.2.5 Promotion
board records

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

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

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

 

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

2.2.6 Promotion
Board feedback

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

2.2.7 Lieutenant
Commander Hamilton's competitiveness for promotion

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

(a) June 1994.
Two Supply Officers selected against one supply and two pool targets.
LCDR Hamilton received votes but was not selected.
(b) December 1994. Two Supply Officers were selected against one supply
and one pool target. LCDR Hamilton received votes and was one of two
supply reserves.
(c) June 1995. Three Supply Officers were selected against one supply
and two pool targets. LCDR Hamilton received votes but was not selected.

(d) December 1995. Two Supply Officers were selected against one supply
and two pool targets. LCDR Hamilton received votes but was not selected.

(e) June 1996. Two Supply Officers were selected against two supply
and two pool targets. LCDR Hamilton did not receive any votes.
(f) December 1996. One Supply Officer was selected against a supply
target of one. LCDR Hamilton did not receive any votes.

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

2.2.8 Comments
on Lieutenant Commander Hamilton's allegation of discrimination

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

2.2.9 Compliance
with the HREOCA and ILO 111

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

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

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

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

2.3 Conciliation

Attempts by the
Commission to conciliate this complaint were unsuccessful.

3.
Progress of the inquiry

3.1 Course of
the inquiry

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

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

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

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

3.2 Statement
of issues

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

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

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

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

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

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

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

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

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

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

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

4. Oral
evidence for the respondent

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

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

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

5.
Written submissions of the parties

5.1 Submission
of the complainant

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

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

5.2 Submission
of the respondent

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

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

5.3 Submission
in response by complainant

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

6. Findings

6.1 Elements
of Discrimination

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

'discrimination'
means:

(a) any distinction, exclusion, or preference made on the basis of
race, colour, sex, religion, political opinion, national extraction
or social origin that has the effect of nullifying or impairing equality
of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:

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

but does not
include any distinction, exclusion or preference:

(c) in respect
of a particular job based on the inherent requirements of the job;
or
(d) in connection with employment as a member of the staff of an institution
that is conducted in accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed, being a distinction,
exclusion or preference made in good faith in order to avoid injury
to the religious susceptibilities of adherents of that religion or
that creed.

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

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

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

6.2 Whether
there was an act or practice

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

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

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

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

6.3 Whether
the act arose in employment or occupation

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

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

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

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

Mr Sidoti stated
as follows:

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

The wording of
the definition clearly encompasses those rules, practices or policies
which on their face appear to be neutral but which in effect have
a disproportionate impact on the group of which the complainant is
a member, that is, those practices which are fair in form and intention
but discriminatory in impact and outcome: The Secretary of the
Department of Foreign Affairs & Trade v Styles & Anor

(1989) EOC 92-265 at p 77,636; Australian Iron & Steel Pty
Ltd v Banovic & Ors
(1989) 168 CLR 165 at p 175.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

His reasons were
as follows:

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

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

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

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

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

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

7.
Submissions on recommendations

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

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

 

7.1 Complainant's
submissions on compensation

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

7.2 Complainant's
submissions on other recommendations sought

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

 

7.3 Respondent's
submissions on compensation

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

7.4 Respondent's
submissions on other recommendations sought

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

8.
Discussion of recommendations

8.1 Recommendation
of compensation

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

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

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

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

8.2 Other Recommendations

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

9.
Notice of findings of the Commission

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

10.
Reasons for findings

Mr Sidoti found
as follows:

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

11.
Recommendation

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

Appendix
A

Functions of the Human Rights
and Equal Opportunity Commission

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

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

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

Where, after the
inquiry, the Commission finds discrimination the Commission is required
to serve notice setting out the findings and the reasons for those findings
- section 35(2)(a). The Commission may include recommendations for preventing
a repetition of the act or practice and for the payment of compensation
or the taking of any other action to remedy or reduce the loss or damage
suffered as a result - sections 35(2)(b) and (c).

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

Discrimination
in employment and occupation

Under section 3
of the HREOCA, discrimination means:

(a) any distinction,
exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin that has the
effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation; and

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

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

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

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

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

1. an objective
factual element, being the existence of a distinction, exclusion or
preference which effects a difference in treatment in comparison with
another in the same situation;

2. a ground on
which the difference of treatment is based that is declared or prescribed;

3. the objective
result of this treatment, that is, a nullification or impairment of
equality of opportunity or treatment in employment or occupation.

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

The Committee of
Experts has commented on the ILO 111 provision of "any distinction,
exclusion or preference in respect of a particular job based on inherent
requirements of the job". To be an inherent requirement the condition
imposed must be proportionate to the aim being pursued and must be necessary
because of the very nature of the job in question. The Committee stated
for example that the exception "refers to a specific and definable
job, function or task. Any limitation within the context of this exception
must be required by characteristics of the particular job, and be in
proportion to its inherent requirements." [20]

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

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

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

3 Ratified
by Australia in 1973.

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

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

6 Ibid,
para 25.

7 Ibid,
para 26.

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

9 At
pages 200 - 201.

10 At
page 175.

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

12
(1998) 76 FCR 513, at 529

13 Ratified
by Australia in 1973.

14 Section
3(1).

15 Art
1(1)(a).

16 Art
1(1)(b).

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

18 See
EN 4 above.

19 International
Labour Conference, Equality in Employment and Occupation: General Survey
by the Committee of Experts on the Application of Conventions and Recommendations
ILO, Geneva, 1988, 23.

20 Ibid,
at 138.

21
Ibid, at 22.

 

Last
updated 20 June 2002