Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd

[1993] FCA 535

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(Judgment by: Lee J)

Human Rights and Equal Opportunity Commission
vMount Isa Mines Ltd

Court:

Judges: Black CJ
Lockhart J

Lee J

Legislative References:
Sex Discrimination Act 1984 (NSW) - The Act
National Occupational Health and Safety Commission Act 1985 (NSW) - The Act
Administrative Decisions (Judicial Review) Act 1977 (NSW) - The Act
Judiciary Act 1903 (NSW) - s 39B
Sex Discrimination Act 1975 (UK) - s 1(1)(a); s 29
Human Rights and Equal Opportunity Commission Act 1986 - s 3(1)

Case References:
Allders International Pty Ltd v Anstee - (1986) 5 NSWLR 47
Australian Broadcasting Tribunal v Bond - (1990) 170 CLR 321
Australian Iron and Steel Pty Ltd v Banovic - (1989) 168 CLR 165
Boehringer Ingelheim Pty Ltd v Reddrop - (1984) 2 NSWLR 13
Director General of Education v Breen - (1984) EOC 92-015
Ex parte Arnold - (1964) VR 21
Hart v Jacobs - (1981) 39 ALR 209
James v Eastleigh Borough Council - (1990) 1 QB 61
Kanbur Pty Ltd v Adams - (1984) 55 ALR 158
Kimberly-Clark Ltd v Commissioner of Patents - (1988) 84 ALR 685
Main Electrical Pty Ltd v Civil and Civic Pty Ltd - (1978) 19 SASR 34
Minister for Aboriginal Affairs v Peko-Wallsend Ltd - (1986) 162 CLR 24
Mitty's Authorised Newsagency v Registrar of Trade Marks - (1983) 78 FLR 217
Proudfoot v Australian Capital Territory Board of Health - (1992) EOC 92-417
R v Birmingham City Council Ex parte Equal Opportunities Commission - (1989) AC 1155
R v Commission for Racial Equality, Ex parte Westminster City Council - (1984) ICR 770
R v Steel - (1876) 1 QBD 482
Suatu Holdings Pty Ltd v Australian Postal Corporation - (1989) 86 ALR 532
Sullivan v Department of Defence - (1992) EOC 92-421
The Diamond - (1906) P 282
United States v William Cramp and Sons Ship and Engine Building Co - 206 US 118
Vickers v Minister for Business and Consumer Affairs - (1982) 43 ALR 389
Waterhouse v Bell - (1991) 25 NSWLR 99
Waters v Public Transport Corporation - (1991) 173 CLR 349
Webb v Emo Air Cargo (UK) Ltd - (1992) 2 All ER 43

Hearing date:
Judgment date: 9 November 1993

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Judgment by:
Lee J

I have had the advantage of reading in draft the reasons of Lockhart J and, in general, subject to the following comments, agree with the conclusions expressed therein.

Although conduct engaged in by the National Occupational Health and Safety Commission ("the Commission") for the purpose of making a decision under the National Occupational Health and Safety Commission Act 1985 (NSW) ("NOHSC Act") was the conduct sought to be reviewed in the proceedings before Davies J, the appellant in this appeal was the Human Rights and Equal Opportunity Commission ("HREOC") which, upon its own application, had been joined as a respondent in the proceedings before the learned primary Judge on the ground that it had an interest in upholding the course of conduct being followed by the Commission. The Commission took no part in the appeal and submitted to any order the court may make.

I agree with the learned primary Judge and with Lockhart J that the Commission had a statutory duty to declare national standards and codes of practice for the promotion of the health and safety of employees in the workplace and that the contents of para 14(1)(d) of the "Proposed National Inorganic Lead Control Standard" ("the proposed Standard") and para 12.1(d) of the proposed "National Code of Practice for the Control and Safe Use of Inorganic Lead at Work" ("the proposed Code") revealed that the Commission was following a course which could lead to an improper delegation of part of the performance of the Commission's statutory function.

I agree with Lockhart J that had para 12.1(d) of the proposed Code stood alone it may have been unobjectionable but the appeal was argued by both sides, at least tacitly, on the basis that it and para 14(1)(d) of the proposed Standard stood or fell together.

With Lockhart J I see no inconsistency between the Sex Discrimination Act 1984 (NSW) ("the SDA Act") and the NOHSC Act and no question of implied repeal arises. (See Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532.)

In disposing of this appeal it is unnecessary to express any opinion on the construction or manner of operation of ss 5, 6, 7 and 14 of the SDA Act but in deference to the submissions of counsel the following remarks may be made, which, as with the comments made by the learned primary Judge, are no more than general observations.

Sections 5, 6 and 7 deal with the occurrence of discrimination on the ground of sex (s 5), marital status (s 6) and pregnancy (s 7) and, but for para 7(1)(b), apply the same provisions to each of the described acts of discrimination. Under subss 5(1), 6(1) and 7(1) a person ("the discriminator") discriminates against another if, by reason of the sex, marital status or pregnancy of another or of a characteristic that appertains generally thereto or is generally imputed thereto, the discriminator treats that other person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex, of different marital status or a person who is not pregnant. Pursuant to para 7(1)(b) discrimination on the ground of pregnancy is not subject to the provisions of the SDA Act unless the less favourable treatment is not reasonable in the circumstances.

Under subss 5(2), 6(2) and 7(2) of the SDA Act a discriminator discriminates against another on the ground of sex, marital status or pregnancy if the discriminator requires a person to comply with a requirement or condition:

(a)

with which a substantially higher proportion of persons of the opposite sex, of different marital status or who are not pregnant comply or are able to comply;

(b)

which is not reasonable having regard to the circumstances of the case; and

(c)

with which a person does not or is not able to comply.

It may be noted that the imposition of the defined requirement or condition will not amount to discrimination if it is reasonable having regarding to the circumstances of the case or if the particular person to whom it is applied, complies or is able to comply with it.

It was submitted by counsel that subss 5(1), 6(1) and 7(1) apply to incidents of direct discrimination and subss 5(2), 6(2) and 7(2) to circumstances of indirect discrimination. (See Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Deane, Gaudron JJ at p 175; Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ, Gaudron J at pp 357-358, McHugh J at pp 400-401.) That is, subss 5(1), 6(1) and 7(1) apply to the less favourable treatment of a person which results directly from consideration of the sex, marital status or pregnancy of that person, whilst subss 5(2), 6(2) and 7(2) operate by reason of a statutorily implied connection between such a consideration and the imposition of a requirement or condition that is disproportionate and unreasonable in the circumstances, being circumstances which include the sex, marital status or pregnancy of a person. There is no requirement under subss 5(2), 6(2) or 7(2) that the aggrieved person show that he or she has been treated "less favourably", but it is a notion underlying each of those subsections. (See Waters per McHugh J at p 402.)

The apparent purpose of subss 5(2), 6(2) and 7(2) is to define as discriminatory, conduct that otherwise does not amount to discrimination under subss 5(1), 6(1) and 7(1) of the SDA Act. If that construction were not applied, subss 5(2), 6(2) and 7(2) would add nothing to subss 5(1), 6(1) and 7(1). (See Australian Iron and Steel Pty Ltd v Banovic per Dawson J at p 184.) In Waters Mason CJ and Gaudron J (pp 358-359) reached a different conclusion in respect of statutory terms dealing with the same issue of discrimination but expressed in words differing significantly from those used in the equivalent provisions of the SDA Act. (cf McHugh J at p 402.)

Section 14 of the SDA Act provides as follows:

14.(1)

It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy:

(a)

in the arrangements made for the purpose of determining who should be offered employment;

(b)

in determining who should be offered employment; or(c)in the terms or conditions on which employment is offered.

(2)

It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy:

(a)

in the terms or conditions of employment that the employer affords the employee;

(b)

by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)

by dismissing the employee; or

(d)

by subjecting the employee to any other detriment.

(3)

Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first- mentioned person resides.

The meaning of the word "discriminates" as used in ss 5, 6 and 7 of the SDA Act will not be supplied by the simple application of the ordinary meaning of the verb "to discriminate". The context in which the word appears involves a concept of detriment arising out of one person being treated less favourably than another. (See Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 per Mahoney J at p 20.)

The meaning of "to discriminate" provided by the Shorter Oxford English Dictionary, 3rd Edition includes, inter alia, to distinguish, differentiate, perceive a difference or make an adverse distinction and the meaning of the verb "to favour" is to approve, to oblige, to treat with partiality, or to regard with favour. The ordinary meaning of to treat less favourably as used in subss 5(1), 6(1) and 7(1) would be to treat a person less obligingly, with less partiality, or in a less well-disposed manner or less even-handedly than another person of the opposite sex or of different marital status or who is not pregnant would be treated in the same circumstances or in circumstances not materially different.

In the present case the circumstances that would be the same, or not materially different, would be the exposure of a worker to the ingestion of lead at the employer's workplace coupled with the employer's obligation not to breach a duty of care owed to persons who may be injured by reason of that exposure.

Before it could be said that discrimination had occurred under subss 5(1) of the SDA Act, it would be necessary to show that the actions of the employer arose out of ill-disposition or lack of partiality or even-handedness towards an employee or applicant for employment, such attitude being grounded upon the sex of that person or upon a characteristic appertaining or imputed thereto.

It is not directly obvious that an employer offering conditional employment in "lead-risk jobs" to child-bearing or breastfeeding persons would necessarily discriminate against a person on the ground of sex and engage in unlawful conduct under s 14 of the SDA Act.

The proposed Standard and proposed Code recognize that a foetus or a breastfeeding child is exposed to significant harm if the blood lead level of the pregnant or breastfeeding person responsible for that foetus or child exceeds the specified minimum level. Perhaps it is yet to be proven that such a level of lead in the blood of an adult person also represents a risk to the health of the adult but it is unquestioned that a foetus or breastfeeding child nourished by a person with blood at that lead level is at risk of suffering marked and permanent injury.

It may be argued that an employer to whom the proposed Standard and proposed Code apply and who owes a duty of care to a person who may become pregnant, to a person breastfeeding a child, and to an unborn child or breastfeeding child would not be acting less favourably -- in the sense of acting in an ill-disposed or less obliging manner or with less partiality -- towards a person to whom, or through whom, that duty of care is owed if the employer sought to observe that duty by protecting an employee, or applicant for employment, from the harm that may occur if that person were employed in a workplace which exposed that person to a blood lead level in excess of the specified minimum.

Provided the employer took into account all relevant matters in respect of the employee or applicant and the circumstances of the employment in addition to the employer's duty to take all reasonable steps to protect the health of that person in the workplace and of others who may be injured by that exposure, it would be arguable that in so acting an employer would not be treating that person less favourably than a person of the opposite sex and arguable that no question of discrimination on the ground of sex, or a characteristic appertaining or imputed thereto, would arise. (See Webb v Emo Air Cargo (UK) Ltd (1992) 2 All ER 43.)

The task of the relevant tribunal would be to determine whether the true and unmasked basis of the employer's conduct was grounded on the sex of the aggrieved person. (See Australian Iron and Steel Pty Ltd v Banovic per Deane, Gaudron JJ at p 177.) That is, the sex, or a characteristic of that sex, must have had a causally operative effect upon the treatment of the aggrieved person resulting in the treatment being less favourable than that which would have been displayed to a person of the opposite sex in the circumstances. (See Director-General of Education v Breen (1984) EOC 92-015 per St. CJ at 75,429.)

The second question that would arise under s 14 of the SDA Act is whether discrimination had occurred as defined by subss 5(2), 6(2) or 7(2) of the SDA Act. It would be arguable that an offer of employment upon the condition or requirement that the applicant for employment not work in a "lead-risk job" if in the course of the employment the person has a blood lead level in excess of the specified minimum and is breastfeeding a child or may become pregnant, would not be unreasonable having regard to all the circumstances of the case and would not involve discrimination under those subsections.

It may be acknowledged that the failure of an employer to prevent a person employed in the inorganic lead industry being exposed to a blood lead level higher than the specified minimum level, will result in the employer being unable to offer a safe place of work to, at least, child-bearing and breastfeeding persons but it does not follow, without more, that such a failure to provide a place of work safe for all employees, including those child-bearing and breastfeeding, necessarily involves discrimination on the ground of sex or on the ground of a characteristic appertaining generally to that sex. Whether it would be a practice that may constitute discrimination as defined in s 3(1) of the Human Rights and Equal Opportunity Commission Act 1986, thereby attracting one of the functions of the HREOC, is a different question.

I would dismiss the appeal with the costs of the appeal to be paid by HREOC including the costs of the submitting respondents. Argument on Mount Isa's notice of contention was a necessary part of the conduct of the appeal and it is not appropriate to make any separate order in respect of that notice by reducing the costs of the appeal awarded to Mount Isa.