Baird v State of Queensland [2006] FCAFC 162 (17 November 2006)

Last Updated: 20 November 2006

FEDERAL COURT OF AUSTRALIA

Baird v State of Queensland [2006] FCAFC 162

Human rights – Racial Discrimination – payments by the Lutheran Church to indigenous workers at below-award wages – State of Queensland calculated and paid grants for such below-award wages – racial discrimination

Aborigines Act 1971 (Qld),
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth)

Aborigines Regulations 1972 (Qld)

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 referred to
Australian Medical Council v Wilson (1996) 68 FCR 46 referred to
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 referred to
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 referred to
Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 referred to
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 referred to

International Convention on the Elimination of all Forms of Racial Discrimination

Lerner N, The UN Convention on the Elimination of all Forms of Racial Discrimination,
Schwelb, E "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996 at 1001















JAMES STANLEY BAIRD & ORS v STATE OF QUEENSLAND
QUD 377 of 2005

SPENDER, ALLSOP & EDMONDS JJ
17 NOVEMBER 2006
SYDNEY (BY VIDEOLINK TO BRISBANE) (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 377 of 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES STANLEY BAIRD FIRST APPELLANT MARIE CREEK SECOND APPELLANT FRANK TAYLEY THIRD APPELLANT HENRY WALKER FOURTH APPELLANT HENRY DEERAL FIFTH APPELLANT EDGAR IVAN GIBSON SIXTH APPELLANT ANITA KAREN GORDON SEVENTH APPELLANT ELLA WOIBO EIGHTH APPELLANT
AND:	STATE OF QUEENSLAND RESPONDENT
JUDGES:	SPENDER, ALLSOP & EDMONDS JJ
DATE OF ORDER:	17 NOVEMBER 2006
WHERE MADE:	SYDNEY (BY VIDEOLINK TO BRISBANE) (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1	The appeal be allowed.
2	The orders made by the Court on 30 August 2005 be set aside.

3	The respondent pay the appellants’ costs of this appeal and the costs of the proceedings before the primary judge.

4	Within 14 days the parties file and serve written submissions as to any further order to dispose of the proceeding at first instance, in the light of the arguments presented on the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 377 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES STANLEY BAIRD FIRST APPLICANT MARIE CREEK SECOND APPLICANT FRANK TAYLEY THIRD APPLICANT HENRY WALKER FOURTH APPLICANT HENRY DEERAL FIFTH APPLICANT EDGAR IVAN GIBSON SIXTH APPLICANT ANITA KAREN GORDON SEVENTH APPLICANT ELLA WOIBO EIGHTH APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	SPENDER, ALLSOP & EDMONDS JJ
DATE:	17 NOVEMBER 2006
PLACE:	SYDNEY (BY VIDEO LINK TO BRISBANE) (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

SPENDER J:

1 I have had the advantage of reading, in draft, the reasons of judgment of Allsop J.
2 The primary judge said, at [114] of his Honour’s reasons:
"... the allegation of employment by the Government is critical to the engagement of s 15 of the [Racial Discrimination Act 1975 (Cth)] in these proceedings. However the allegation is also of importance in connection with s 9.
...
In this case the only differential treatment pleaded by the applicants is in connection with their alleged employment by the Government. They claim that the grants paid by the Government to the Church were insufficient to enable the Church to pay wages at higher levels. If employment by the Government is not established, there is no basis for alleging discrimination."

3 Further, the primary judge, at [137] said:

"... the only discrimination arguably appearing from the evidence is in connection with wages. To prove entitlement to wages, it is necessary to prove employment. The applicants plead only employment by the Government and have failed to establish that plea ..."

4 As the reasons of Allsop J demonstrate, the claim of the appellants under s 9 of the Racial Discrimination Act 1975 (Cth) did not depend upon a conclusion that the appellants had been employed by the Government. Part of the case pleaded and conducted by the appellants below was not so limited.

5 In respect of the case for the appellants that was not limited to the claim based on employment of the appellants by the State, I agree with the reasons for judgment of Allsop J and with the orders he proposes.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 17 November 2006

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 377 of 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES STANLEY BAIRD FIRST APPELLANT MARIE CREEK SECOND APPELLANT FRANK TAYLEY THIRD APPELLANT HENRY WALKER FOURTH APPELLANT HENRY DEERAL FIFTH APPELLANT EDGAR IVAN GIBSON SIXTH APPELLANT ANITA KAREN GORDON SEVENTH APPELLANT ELLA WOIBO EIGHTH APPELLANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGES	SPENDER, ALLSOP & EDMONDS JJ
DATE:	17 NOVEMBER 2006
PLACE:	SYDNEY (BY VIDEO LINK TO BRISBANE) (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

ALLSOP J

Introduction

6 The appellants are Aboriginal Australians, all of whom were employed on reserves in Queensland known as Hope Vale and Wujal Wujal run by the Lutheran Church for some or all of the period between 1975 and 1986.

7 The year 1975 is relevant because it saw the introduction of the Racial Discrimination Act 1975 (Cth) (the "RD Act") as Australia’s response to its international obligations under the International Convention on the Elimination of all Forms of Racial Discrimination, done at New York on 7 March 1966 (the "Convention").

8 Between 1975 and 1986, while employed on the reserves (and subject to minor qualification) the appellants were paid wages below any relevant award rate of pay.

9 The appellants brought proceedings in this Court pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), seeking (a) declarations that the respondents (initially, the State of Queensland and the Lutheran Church) discriminated against each of the appellants by the underpayment of wages; (b) apologies; and (c) damages.

10 The application was discontinued against the Church, leaving the State as the only respondent.

The pleading and the conduct of the proceeding below

11 The arguments on appeal make it necessary to examine with some care how the case was conducted below. It is necessary to begin with the originating process and the pleadings. The declarations sought in the amended application were as follows:

"A declaration that the first respondent and/or the second respondent discriminated against each of the applicants pursuant to sections 9 and 15 of the Racial Discrimination Act 1975 in their employment with the first respondent and/or second respondent between 1975 and 1986 and/or [a] declaration that the first respondent discriminated against each of the applicants through the payment by the first respondent to the second respondent, of grants for the payment of the applicants’ wages that were based on race and resulted in the applicants receiving wages which were at a rate less than that to which they were entitled."
[emphasis added]

12 It is appropriate to note that the first declaration sought in the above paragraph (against both the Church, as the second respondent, and the State, as the first respondent) was by reference to the employment of the appellants with either the Church or the State, or with both. The second declaration (emphasised above) was sought only against the State and was not framed by reference to employment by the State. Rather, it was directed to the grants of funds made by the State to the Church "for the payment of applicants’ wages" that were said to have been "based on race" and which, it was said, resulted in the applicants receiving below-award wages.

13 The claim for damages was also not framed upon the basis of the appellants being employed by the State. It was in the following terms:

"That the first respondent and/or the second respondent pay to each of the applicants the sum of $500,000.00 as damages by way of compensation for the loss and damage suffered by each of the applicants by reason of the said unlawful discrimination on the part of the first respondent and/or the second respondent;"

14 Before examining the pleadings, it is convenient to examine the certain provisions of the RD Act. Sections 9(1) and (2), 15(1) and 17 are in the following terms:

"Section 9
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

...

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

...

Section 15

(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c) to dismiss a second person from his or her employment;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

...

Section 17
It is unlawful for a person:
(a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or
(b) to assist or promote whether by financial assistance or otherwise the doing of such an act."

15 Article 5 of the Convention, referred to in s 9(2) above, contains the following with regard to economic, social and cultural rights:

"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

...

(e) economic, social and cultural rights, in particular:

(i) the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
..."

16 The "Consolidated Statement of Claim", filed on the last day of the hearing, 15 February 2005, and after the proceedings had been discontinued against the Church, made the following allegations (the word "respondent" referring only to the State):

(a)	Paragraph 4 contained the allegation that all the appellants were employed by the State on church-run reserves. (The primary judge found that the State was not the employer of the appellants. There is no appeal from that finding.)
(b)	Paragraphs 4A to 4H contained allegations about the State’s role in funding the wages paid by the Church, in the following terms:

"4A The respondent determined an amount to be paid in wages by the Church to the applicants.
4B The respondent informed the Church of the said amount to be paid in wages by the Church to the applicants.
4C The determination of the said amount to be paid by the Church to the applicants was based on race.
4D The respondent paid to the Church grants representing the wages it determined could be paid by the Church to the applicants.
4E The amount constituting the grants paid by the respondent to the Church was based on race.
4F(1) The determinations made by the respondent as to an amount to be paid in wages by the Church to the applicants (a) were made by the Queensland Cabinet, and (b) were made either pursuant to the Aborigines Act 1971 and/or the Aborigines Regulations 1972, or alternatively, were made without any legislative basis.
4F(2) The grants paid by the respondent to the Church for wages to be paid to the applicants were made pursuant to the Aborigines Act 1971 and/or the Aborigines Regulations 1972, or alternatively, were made without any legislative basis
4G The respondent knew that the said determinations and the said grants could or would be determinative of the amounts the Church would pay the applicants in wages.
4H The amount in fact paid in wages by the Church to the applicants was determined by the said determinations made by the respondent and/or was determined by the said grants made by the respondent."

(c)	Paragraph 6 contained allegations of discrimination against the appellants in their respective employment by the State. Paragraph 7 can be seen as an elaboration of this allegation of discrimination in the employment of the appellants by the State. Paragraphs 7A and 8 can also be seen as part of this body of allegations directed to the claim based on employment of the appellants by the State.
(d)	Paragraph 8A contained allegations as to the "act" for the purposes of s 9 of the RD Act, in the following terms:

"The ‘act’ referred to in section 9 of the Racial Discrimination Act 1975 was:
(a) the payment by the respondent to the Church of grants that were based on race and resulted in the applicants receiving wages which were at a rate less than that paid (i) by the respondent to its non-Aboriginal employees doing similar work and/or (ii) pursuant to the Award applicable to each of the applicants;"

There was no sub-paragraph (b). No particulars of paragraph 8A were sought or supplied. Paragraph 8A was not limited to the claim of employment of the appellants by the State.

(e) There was no pleading of any claim based on s 17 of the RD Act.

17 The pleading is to be understood in its context. It is not to be read divorced from counsel’s opening and how the case was otherwise litigated. This is not to say that the pleadings are other than central to understanding what was fought below and thus what can be raised on appeal. But to the extent that context may cure or ameliorate ambiguity or lack of clarity, it is not to be ignored.

18 In his opening at the hearing counsel for the appellants said the following:

"Each of the Applicants allege that there has been a breach of section 9 and section 15 of the Racial Discrimination Act .... Section 9 is a very, very general section. It refers merely to the doing of an act that involved a distinction, etcetera, but had the purpose or effect of impairing the recognition of one’s human rights.

... Simply put, what is alleged is that prior to 1986 the applicants were employed at Hopevale and/or Wujal Wujal reserves... Those reserves were both run by the Lutheran Church. ...but what the applicants say is that they were paid wages at a rate considerably less than persons employed other than on reserves and that the State Government, in effect, determined the level of wages because periodically State Cabinet would take certain decisions as a result of which the Department... would pay to... the Lutheran Church, an amount based on, simply put, the number of employees by the amount set.

And that is what was paid to the churches and that’s what the churches paid to the Applicants...

...

... This Section 9 claim is basically that the first respondent determined the amount that would be paid to these people in reality. The State Cabinet took decisions as to wage levels and that resulted in these applicants receiving what the applicants allege to be less remuneration than that to which they would have received in other circumstances.

The breach of Section 15 is simply that it’s unlawful for an employer to, in effect, discriminate against an employee by reason of their race, colour or national ethnic origin. ...

...

The act complained of is the payment by the first respondent to the Lutheran Church of grants that did not enable the Lutheran Church to pay the applicants at a rate paid by the first respondent to its non-Aboriginal employees doing similar work or pursuant to the relevant award.

..."
[emphasis added]

19 During the opening the following exchange took place between counsel for the appellants and the primary judge:

"Mr O’Gorman: ... And it would be my submission that the legislative regime, the Aborigines Act and Regulations, was such – when one looks at the whole of that one would conclude that in fact the employer in reality was the first respondent.
His Honour: All right. Does your case depend on that, does it?

Mr O’Gorman: No, it doesn’t. It does for the section 15 claim – as the employer because that refers to an employer not doing such and such.
His Honour: Yes.

Mr O’Gorman: So if you were to conclude that the first respondent wasn’t the employer, then the applicants wouldn’t succeed pursuant to section 15. But, as has been often the case with racial discrimination cases involving employment, there have been cases where it has been found that section 15 is not applicable but section 9 is.
His Honour: Yes. But the problem, which I was just adverting to then arises, that if these people were covered by the award, then the Lutheran Church was obliged to comply with it. And that has nothing to do with the amount of money paid to them by the State government."

20 On the day before the Consolidated Statement of Claim was filed in Court, that is on the second last day of the hearing, counsel for the appellants said the following in address:

"Mr O’Gorman: If I can deal with section 9?
His Honour: Yes.

Mr O’Gorman: It is alleged that the payment by the respondent to the church of monies that did not enable the church to pay award rates of pay is the act.
His Honour: All right.

Mr O’Gorman: The distinction, exclusion or restriction is the provision of money that resulted in less than award rates of pay being paid, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom."
[emphasis added]

21 It is clear from the oral address that the case under s 9 was not limited by an allegation that the appellants were employed by the State.

22 In the written submissions of the appellants before the primary judge, in elucidating the s 9 case, the following was stated:

"51. The ‘act’ complained of by the applicants is the payment by the respondent to the Church of grants that did not enable the Church to pay the applicants at the rate paid by the respondent to its non-Aboriginal employees doing similar work or pursuant to the relevant award.

52. It is submitted that, in reality, the respondent determined the amount to be paid in wages by the Lutheran Church to the applicants, and the respondent paid to the Lutheran Church grants representing the wages to be paid by the Lutheran Church to the applicants as determined by the respondent:"

[emphasis added]

Thereafter, three and a half pages of elucidation was given of paragraph 52. Provisions of the Aborigines Act 1971 (Qld), the Aborigines Regulations 1972 (Qld) and the annual reports of the relevant government department were referred to in support of the proposition that the State exercised control of the Church in the latter’s management of the reserves. Reference was also made to the financial relationship between the State and churches (including the Church) running Aboriginal reserves.

"53. The determination by the respondent of the amount to be paid in wages to the applicants was ‘based on race’ because such determinations were specific to Aborigines: Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 per Brennan J at 118."

Paragraph 54 was directed to supporting the assertion that the determination (that is a calculation) of the grants and the amount to be paid in wages to the appellants was based on race. It referred to Cabinet Submissions and Cabinet Decisions between 1975 and 1986 using phrases such as ‘Aboriginal/Islander employees who do not receive award rates’. Paragraph 55 sought by reference to a passage in a decision of the Equal Opportunity Commission to characterise the Aborigines Act and Aborigines Regulations as a repressive regime designed to regulate and control all aspects of Aboriginal life, implicitly by the State.

"56. There is ‘a sufficient connection’ between the applicants Aboriginality and the respondent paying the applicants less than that payable pursuant to the relevant award or that paid to non-Aboriginal employees (that is, their race) or, put another way, there was a causal connection between the lower wages paid to the applicants and their Aboriginality."

Paragraph 56 here has an ambiguity. It might be read as referring to the applicants as employees of the State. But that is not its only possible meaning.

"57. The payment of lower wages in circumstances such as the present involves a ‘... distinction, exclusion, restriction of preference’ because during the relevant period:

• persons capable of being covered by an award were required in law to be paid the amounts stipulated in the award because the Industrial Conciliation and Arbitration Act 1961-1980 (Qld) provided that:

- an award was binding on, inter alia, ‘... all employers and employees in the locality to which the award applies in the calling or calling to which it applies’ (s 31(e)) and ‘...all persons who, whether as employers or employees, are engaged in such calling or callings in that locality at any time while the award remains in force’ (s 31(f));
- an award had the force of law ‘...throughout the State...’: s 29(1)(b);

• the major and substantive part of the duties of the applicants, apart from the eighth applicant, were such that the awards and classifications outlined by Mr Porter (in exhibit 43) were applicable;
• the amount paid in wages to the applicants by the Church was determined by the determinations and/or grants made by the respondent;
• those determinations and/or grants did not permit the Church to pay the amounts stipulated in the applicable awards."

Paragraph 57 was somewhat inconsistent with paragraph 8A of the Consolidated Statement of Claim in the reference to "the payment of lower wages in circumstances such as the present" involving a distinction, exclusion, restriction or preference. The "act" which involved a distinction etc, was defined in paragraph 8A as set out above, as the payment of the grants. It may be that the two can be reconciled by viewing this part of paragraph 57 as conflating the various elements of paragraph 8A read in the context of paragraphs 4A to 4H. This is consistent with the last two bullet points in paragraph 57.

Paragraphs 58 and 59 sought to demonstrate that the amount paid by the State to the Church in the grants for the payment of wages of the appellants was based on race. Paragraphs 60 and 61 sought to support the assertion that the State’s act based on race had the effect of at least impairing the recognition, enjoyment or exercise, on an equal footing, of the right to just and favourable conditions of work, the right to equal pay for equal work and the right to just and favourable remuneration.

23 In its written submissions dated 14 February 2003, the State dealt with the cases under ss 9 and 15 of the RD Act separately. The submissions going to the s 9 case at paragraphs 55-70 (see pp 53-57 of the Supplementary Appeal Book), with the exception of paragraph 59, did not address the issue of who was the employer of the appellants.

24 The case under s 9 was addressed by the State in these written submissions by dealing with the following topics:

"The Respondent did not determine an amount to be paid in wages by the Church to the Applicants"

This was specifically directed to the terms of paragraph 4A, but the submissions can be seen as concerned with both paragraphs 4A and 4B. It can also be seen to have a relevance to paragraph 4H.

"The Respondent did not pay the Church grants representing the wages it determined could be paid to the Applicants"

This was specifically directed to the terms of paragraph 4C.

"Irrelevance of a comparison between payments to the Applicants and persons in the employment of the Respondent who were not Aboriginal persons and who performed work similar to that carried out by the Applicants."

This can be seen as directed to the contents of paragraph 8A.

"The amount constituting the grants paid by the Respondent to the Church was not based on race."

This can be seen as directed to paragraphs 4C, 4E and 8A.

"The Respondent did not know that the grants could or would be determinative of the amounts the Church would pay the Applicants in wages."

This can be seen as directed to paragraph 4G.

"No distinction, exclusion, restriction or preference for the purposes of s 9 of the Act."

In the submission under this heading, the State said that the "acts" involving the distinction etc were the alleged determination of "wage rates" and the alleged payment of grants that determined the amount the Church would pay to the appellants.

"No act on the part of the Respondent that had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

25 A number of matters appear to flow from, and can be said in consequence of, the above outline of the presentation of the case. First, read in their context, the amended application and the Consolidated Statement of Claim contain a case based on s 9 of the RD Act not dependent upon any finding that the appellants were employed by the State.

26 Secondly, the case put forward was in effect that determining and paying the grants in the amounts that were fixed had the effect of at least impairing the enjoyment of a relevant human right (the right to equal pay for equal work, by reference to applicable award rates) because the grants did not permit or did not enable the Church to pay award rates or because the grants effectively determined the amount to be paid in wages by the Church.

27 Thirdly, the reference to the payments of the grants as the "acts" for s 9 incorporated, from time to time, notions of decisions concerning how the grants were calculated. The primary case of the appellants was to the effect that the State in fact and in practical reality calculated the amount of the wages to be paid in the calculation of the grants. This threw up for consideration, as a central issue in the case, how the grants were calculated and the relationship between the calculation and payment of the grants and the payment of below award-wages.

28 Fourthly, there was a degree of imprecision and confusion in the identification of the distinction, exclusion, restriction or preference for the purposes of s 9(1) and the relationship of such with race. What can be said, it seems to me, is that within the pleading and submissions can be found the assertions that the acts of calculating and paying the grants involved taking into account that the funds would be required to fund below-award wages as distinct from award wages and that the calculation of the grants was made on that basis. This occurred, so it was said, because the ultimate recipients of the below-award wages were Aborigines.

29 Fifthly, in fairness to the pleader, some of the difficulty in enunciating how the case fits into s 9 on the hypothesis that the State was not the employer of the appellants can be seen to flow from the almost elusive simplicity of s 9(1), the content of which can be described as "vague and elastic": see Gibbs J in Gerhardy v Brown [1985] HCA 11; (1984-85) 159 CLR 70 at 86. Nevertheless, what was thrown up for debate and consideration were the calculation of the grants, the relationship between the amounts of the grants fixed upon and paid, the payment of below-award wages, the reasons why the appellants were paid below-award wages, and why the amounts of the grants were calculated as they were.

The approach of the primary judge

30 The primary judge commenced by a description and analysis of the relevant statutory framework for management of reserves and of the history of the missions.

31 After a discussion of the evidence, the primary judge made the following findings of fact at [108], [109] and [110]:

"I am satisfied that both missions have always been dependent to a substantial extent upon funding from the Government. I am also satisfied that from a point in time prior to 1975, the level of such funding, to some extent, reflected the cost to the Government of managing reserves. Annual grants frequently, perhaps always, included amounts identified as being for wages payable to indigenous residents. It may have been competent for the Government, by regulation, to fix wage levels and levels of employment on missions, subject only to any limitation upon such power imposed by relevant industrial legislation. However it did not do so. As far as I can see, its decisions as to wage levels had no binding legal affect upon wage levels payable on church missions. I accept Mr Sutton´s evidence that the calculation of the wage component of each grant was a notional exercise and that it was not expected that its expenditure would precisely reflect the method of calculation. In other words, the Church could vary wage rates and employment levels. Nonetheless it is probable that both the Government and the Church desired to keep as many people as possible in employment.

I accept that it was not financially feasible for the Church to pay substantially more "across the board" than the amount allowed as wages in each grant. The Government probably knew this. However it had no knowledge of how many people would be employed, how many hours per week they would work, or what they would do. Nonetheless, it seems that the Government was aware that wages were paid on the missions at rates below award rates and that there was pressure to remedy the position. At some stage, the Government seems to have accepted that churches would pay increased wages to indigenous employees on missions only to the extent that it increased their grants.

The above summary inevitably contains many generalizations about practices which developed and changed over time. Such practices may not always have been consistently adopted. If it were necessary that I identify the events leading to any particular payment to the Church or the state of knowledge of the Government at any particular time, I would not assume that any practice or state of mind necessarily applied throughout the whole of the period from 1975 to 1986, save to the extent that I have expressly so found."

32 The primary judge then turned to the appellants’ claims. At [113] and [114] his Honour said:

"The applicants´ claims depend substantially upon the allegation contained in par 4 of the statement of claim that:

`All of the applicants were employed by the [Government] on Church-run reserves for some or all of the period between 1975 and 1986.’

The allegation of employment by the Government is critical to the engagement of s 15 of RDA in these proceedings. However the allegation is also of importance in connection with s 9. That section applies to an act ‘involving’ a ‘distinction, exclusion, restriction or preference’ which is ‘based on’ race. In practice, each of the words ‘distinction’, ‘exclusion’, ‘restriction’ and ‘preference’ implies differential treatment of at least one person as compared to the treatment of at least one other. In this case the only differential treatment pleaded by the applicants is in connection with their alleged employment by the Government. They claim that the grants paid by the Government to the Church were insufficient to enable the Church to pay wages at higher levels. If employment by the Government is not established, there is no basis for alleging discrimination."

33 As I have sought to explain, the s 9 claim did not depend upon a conclusion that the appellants had been employed by the State. His Honour took the references to the comparison to non-Aboriginal employees of the State (see for example paragraph 8A) as meaning that the only differential treatment pleaded was in connection with their alleged employment with the State. As I have sought to show, that is not the case.

34 The primary judge then analysed who was the employer of the appellants and concluded that the State was not their employer. As I have already said, there is no appeal from that conclusion.

35 The primary judge returned to the s 9 claim. His Honour dealt with it between [129] and [146] of his reasons. At [130] and [131] the primary judge set out the elements of s 9 of the Act, saying:

"For present purposes, an act will be contrary to s 9 if it:

• involves a distinction, exclusion, restriction or preference which is ‘based on race’; and
• has the purpose or effect of impairing the applicants’ rights to be paid at higher rates.

It is not sufficient that the relevant act has a discriminatory purpose or effect. The act must also ‘involve’ one of the discriminatory elements (a distinction, exclusion, restriction or preference) which must be based on race."

36 The primary judge then turned his attention to paragraph 8A and said at [133], [134] and [135]:

"There are two major difficulties with this plea. Firstly, it tends to confuse the two requirements identified above, namely that the act involve a discriminatory element and that it have a discriminatory purpose or effect. Secondly, use of the word grants indicates that the applicants complain of not one, but numerous ‘acts’. However no attempt has been made to identify them, let alone to show that each payment involved a discriminatory element or an identifiable discriminatory purpose or effect. In other words, the applicants invite me to infer that each of numerous unidentified payments over a period of eleven years involved a discriminatory element based on race and had a discriminatory purpose or effect. The basis for such inferences is that there is a long history in which calculation of grants to the Church was based upon an assumption that a hypothetical number of employees would be paid at rates which were below those paid to Government employees or specified in relevant awards. I will return to this matter at a later stage. I will first consider the relationship between the pleading and s 9.

The allegedly discriminatory element of the payments is that each `grant´ was `based on race´. Grants were certainly based on race in the sense that they were made in order to assist indigenous people, but the applicants do not rely on that discrimination in their favour. They assert that the calculation of the amount of each grant involved a discriminatory element. The Government paid wages at higher levels to its own employees who were not on reserves, and it presumably observed the requirements of relevant awards. However, in calculating the amounts to be paid to churches conducting missions on reserves, it included in each grant an amount which was calculated using pay rates which differed from rates paid to Government employees and/or specified in awards. In the end, I do not think that anything hangs upon the distinction between the two alternatives. The case has proceeded upon the tacit assumption that the Government was paying at least award rates to employees, the relevant awards also applying to some or all of the applicants.

There can be no doubt that indigenous people in Queensland were, for some or all of the period in question, significantly disadvantaged. One such disadvantage was that wage levels paid on reserves were lower than levels prescribed by awards and therefore paid in the general community. It is probable that the system of reserves established and maintained under the 1971 Act and the 1984 Act was a cause of such disadvantage. The Government’s apparent acceptance of the fact that the Church was not paying award wages on the missions also contributed. Such acceptance was the natural consequence of the fact that, as I infer, the Government was paying below-award wages to indigenous workers on the reserves which it administered."

37 The first point made by the primary judge in [133] may be accepted. The pleading can be seen to conflate two separate elements of s 9: (i) the act must involve a distinction; and (ii) that act involving the distinction must be based on race. However, this infelicity of pleading would not prevent the recognition of those elements in the analysis of the substance of the appellants’ case. Also, in fairness to the pleader, one must be careful to recognise that s 9(1) is one whole section and not a sum of finite elements. The provision is to be interpreted in a holistic way rather than by reference to disembodied individual elements.

38 The second point made by the primary judge in [133] was critical of how the case had been presented on behalf of the appellants. The presentation lacked, his Honour said, the necessary specificity and particularity of the acts in question. His Honour elaborated upon this point at [136] when he said:

"... No particular Cabinet decision or Government payment was specifically identified as being the subject matter of these proceedings. None was examined to see if it involved a discriminatory element or had a discriminatory purpose or effect. The failure to address particular acts is probably fatal to the applicants´ claims under s 9. It is possible to identify from the evidence particular decisions which involved calculations using particular wage rates. It would be more difficult to demonstrate that each decision had a discriminatory purpose or effect. In any event, the case has not been conducted in that way. ..."

39 The appellants contested this asserted lack of particularity. They relied upon the determinations referred to in paras 4A to 4H and the Cabinet records in Exhibit 13 as the basis taken by both parties to the litigation in dealing with the decisions to pay the grants. The State sought to support the primary judge’s criticism by pointing to the lack of particularity in the pleading. It does appear, however, that the evidence was ample to support the clear identification of the payments made as a result of the decisions disclosed in Exhibit 13. That is how the case appears to have been run. The decisions were as follows:

(a) Decision No. 23317 dated 20 October 1975 based on Submission No. 20838 (AB 298);
(b) Decision No. 23510 dated 24 November 1975 based on Submission No. 21006 (AB 301);
(c) Decision No. 25246 dated 11 October 1976 based on Submission No. 22524 (AB 305);
(d) Decision No. 25353 dated 18 October 1976 based on Submission No. 22574 (AB 308);
(e) Decision No. 27215 dated 17 October 1977 based on Submission No. 24266 (AB 312);
(f) Decision No. 27216 dated 17 October 1977 based on Submission No. 24267 (AB 316);
(g) Decision No. 294626 dated 7 November 1978 based on Submission No. 26251 (AB 319);
(h) Decision No. 29463 dated 7 November 1978 based on Submission No. 26257 (AB 322);
(i) Decision No. 30752 dated 12 June 1979 based on Submission No 27410 (AB 325)
(j) Decision No. 32015 dated 8 January 1980 based on Submission No.28547 (AB 332)
(k) Decision No. 32060 dated 15 January 1980 based on Submission No. 28584 (AB 337);
(l) Decision No. 32980 dated 26 May 1980 based on Submission No. 29412 (AB 341);
(m) Decision No. 33882 dated 21 October 1980 based on Submission No. 30240 (AB 346);
(n) Decision No. 34033 dated 17 November 1980 based on Submission No. 30384 (AB 354);
(o) Decision No. 35710 dated 3 August 1981 based on Submission No. 31906 (AB 357);
(p) Decision No. 38342 dated 9 August 1982 based on Submission No. 34302 (AB 360);
(q) Decision No. 38376 dated 16 August 1982 (AB 363);
(r) Decision No. 39901 dated 28 March 1983 based on Submission No. 35739 (AB 365);
(s) Decision No. 42170 dated 17 January 1984 based on Submission No. 37862 (AB 369);
(t) Decision No. 44383 dated 15 October 1984 based on Submission No. 39907 (AB 373);
(u) Decision No. 48290 dated 10 March 1986 based on Submission No. 43540 (AB 377);
(v) Decision No. 48651 dated 29 April 1986 based on Submission No. 43872 (AB 381);
(w) Decision No. 48902 dated 27 May 1986 based on Submission No. 44103 (AB 384);
(x) Decision No. 48945 dated 3 June 1986 based on Submission No. 44145 (AB 388);

40 However, as the State recognised, these views of the primary judge were not critical, because his Honour then looked at the case in what he described as a "generic approach" to the s 9 case. That is, he dealt with the matter on the basis that the acts had been adequately identified.

41 It is necessary to understand why his Honour rejected this case on this basis. The first reason for rejecting this case was the view of the primary judge that the claim depended upon a conclusion that the appellants were employed by the State. At [137] the primary judge stated:

"...the only discrimination arguably appearing from the evidence is in connection with wages. To prove entitlement to wages, it is necessary to prove employment. The applicants plead only employment by the Government and have failed to establish that plea. ..."

42 For the reasons earlier expressed, this is not the only way the case was put. However, his Honour then approached the matter on the basis that the appellants were entitled to bring their s 9 case as former employees of the Church or the relevant Aboriginal Councils. Thus, for the appellants to succeed it is necessary for them to demonstrate error in the primary judge’s approach on this basis.

43 The primary judge’s reasons for dismissing the claim based on s 9 of the Act, not based on employment by the State and based on the numerous acts identified in Exhibit 13, were contained in [137] to [146] of his reasons.

44 The primary judge referred to paragraph 8A as the only "act" for the purposes of s 9 that was pleaded. The appellants submitted that the acts for the purposes of the s 9 case were the determination, that is the calculation and the paying of the grants. Elsewhere in the submissions on appeal, (see [2(f)] of the appellants’ outline of submissions) the appellants identified the acts for the s 9 case as the "decisions as to the rate of pay and the consequent payments to the Church for the wages payable to the appellants". Notwithstanding a degree of imprecision in this aspect of the presentation of the appeal, it is tolerably clear that on appeal the appellants asserted that:

(a) the acts were the determining and paying of the grants;
(b) the determining and paying of the grants involved a distinction, exclusion or restriction;
(c) the distinction, exclusion or restriction was based on race; and
(d) the acts, involving the relevant distinctions and which were based on race had the effect of nullifying or at least impairing the relevant economic right by denying them award wages to which they were entitled.

45 The State submitted that the acts so identified represented a new case not run below that should not be entertained on appeal. I cannot agree. Though less than pellucid, the terms of paragraphs 4A to 4H, when read with paragraph 8A in the context of the opening and final addresses and written submissions, demonstrate that the reference to payment of grants in paragraph 8A is to be understood as the determination, that is the calculation, and payment, of the grants. The reasons of the primary judge reflect this: in this respect see [134] set out above, [138] and [141] set out and discussed below.

46 The appellants’ submissions criticised the primary judge’s statement of the relevant issues for the s 9 case as set out in [137] of his reasons which was in the following terms:

"Nonetheless they must show that the Government performed an act which involved a discriminatory element based on race. The only act pleaded (in par 8A of the statement of claim) is the payment of grants to the Church. It is said that the grants:

• were ‘based on race’; and
• resulted in the applicants receiving lower wages than were paid to other employees of the Government doing similar work and/or than were prescribed by relevant awards."

It was submitted that this reflected the introduction of a foreign element into s 9, the so-called "discriminatory element". This criticism is misplaced. His Honour had defined the phrase in [131] as meaning a distinction, exclusion, restriction or preference. He was plainly using the phrase as a shorthand for the relevant elements of s 9.

47 Having posited the elements of s 9, the primary judge then proceeded in [138] to reject the claim. He said:

"As I have said indigenous people on reserves were undoubtedly disadvantaged, but it does not follow that every act connected with their disadvantage was contrary to s 9. The Government was under no obligation to make payments to the Church for use on the missions. No doubt, in discharge of its duty to maintain peace, order and good government throughout the state, it had an interest in seeing that the missions were well run. Clearly, it considered that the payment of grants would contribute to that outcome. However it is difficult to see how the payment of a grant could involve a relevant discriminatory element based on race. Such payments were, in themselves, entirely neutral, save for the fact that they were intended to benefit indigenous people. As I have said, the applicants do not complain on that basis. There is no suggestion that other grants were made at higher rates to facilitate higher payments to non-indigenous workers. As to discrimination in calculating the amount of each grant, there is no evidence that the Government calculated payments to other organizations using higher wage rates. The applicants have established that the grants were not sufficient, themselves, to enable the Church to pay award wages, but there is no basis for asserting that the calculation of the grants involved any discriminatory element. Any discrimination arose from the discrepancy between the amounts paid to indigenous workers (which amounts were derived from the grants) on the one hand, and amounts paid to other workers (which amounts were unrelated to the grants) on the other. That discrimination was the result of numerous factors, unrelated to the acts upon which the applicants rely. For this reason that discrimination was not involved in those acts. In these proceedings the applicants complain of discrimination against them as employees, not that they failed to receive a fair share of public resources generally."

48 The primary judge then dealt with the phrase "based on race" and concluded, based on the Full Court decision in Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 upholding the decision of Weinberg J [1998] FCA 1650; (1998) 91 FCR 8 that "based on race" meant "by reference to" and involved no causal connection between race and the relevant distinction or exclusion. No criticism was made of this approach.

49 The balance of his Honour’s reasoning was at [141] to [146] in the following terms:

"Calculation and payment of grants were incidents of Government funding of the missions. As I do not accept that such acts involved discriminatory elements, it is difficult to determine in the abstract whether, if they did so, such elements would have been so based. It is sufficient to say that it seems that any discrimination against the applicants was based on the fact that they resided and worked on the missions rather than on their race. The applicants argue that those living and working on missions were, almost inevitably, indigenous. There may be something in that argument, but it is not raised on the pleadings. It is not necessary to take it further.

If s 9 is to be engaged, the act (having the relevant discriminatory element) must also have had ‘the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing’ of an applicants’ right to equal pay. It cannot be said that the payments made to the Church had the purpose or effect of depriving the applicants of their proper pay rates. The payments enabled the Church to pay them something. Had there been no grants, there would have been other funding arrangements and in particular, reductions in employment levels and greater reliance upon social security payments.

It might be thought that such an interpretation of s 9 is inconsistent with the protective and remedial nature of the legislation. However, although s 15 is not to be read as narrowing the ambit of operation of s 9 (see subs 9(4)), the former section offers protection which is designed to deal with wage discrimination. More importantly, following the Murgha case, it was known that relevant industrial legislation offered the applicants the same wage protection as was offered to all other workers. I am not suggesting that the applicants were in any way blameworthy for not seeking out, or pursuing remedies under industrial legislation. I am merely demonstrating that my view of s 9 does not mean that the applicants were without appropriate remedies.

Although they have not said so directly, the applicants’ real complaint is not that the Government paid money to the Church, but that it did not pay enough. That raises the question of whether the word "act" in s 9 includes an omission to act. There is nothing in RDA to support such an argument. Section 9 may be contrasted with s 15. The latter section clearly addresses omissions to act. In any event, such an argument would inevitably involve the assertion that the Government was obliged to make sufficient funds available to enable the Church to pay higher wages and could not make a partial contribution. Such a construction of the section is simply not available. It might also raise constitutional questions.

I should point out that the applicants have not alleged that the Government is liable as a party to any conduct by the Church. There seems to be no statutory basis for such a claim.

The claim pursuant to s 9 must fail."

50 Before dealing with the essential and determinative aspects of the primary judge’s reasoning, it is necessary to say something about [144] and [145] of the reasons. As to [144], the gist of paragraph 8A and how it was developed was the assertion that the State did not pay enough in the grants and that it fixed upon the amounts that it did (which were inadequate to see the appellants paid the award wage) because the recipients of the wages payable through the grants were Aboriginal. This case involved both the acts taken and the omission or failure to do something different. Contrary to the primary judge’s conclusion that the Act, and in particular s 9, could not support such a case based on omission or failure to act, s 3(3) of the Act specifically deals with this issue. That subsection is in the following terms:

"For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure."

51 As to [145], the primary judge was undoubtedly correct that no case was run to the effect that the State was liable as a party to the conduct of the Church. Section 17 of the RD Act does provide a basis for such a case; but none was pleaded or run. The submissions of the intervenor sought at times to agitate such a case. No such case should be allowed to be ventilated on appeal.

The Appellants’ Complaints

52 The notice of appeal which contains 30 grounds of appeal is not a document which assists comprehension as to the structure of the appeal. I have confined myself to the matters argued in the written submissions and oral argument.

53 I have already dealt with a number of the complaints of the appellants about the primary judge’s reasoning: the incorrect conclusion that the claim under s 9 was dependent upon employment of the appellants by the State and the incorrect conclusion that there had been a lack of particularity in identifying the acts of the State said to have contravened s 9. Neither of these errors was operative. I have also already dealt with the unfounded criticism of his Honour’s use of the phrase "discriminatory element".

54 The appellants also complained that the primary judge approached the matter bringing a requirement of intention into s 9. They particularly pointed to [138] and the statement that the payments were "entirely neutral, save for the fact that they were intended to benefit indigenous people". The appellants submitted that the application of s 9 does not involve any question of intention. It is clear that, whilst s 9 may involve a question of purpose and thus considering why the person acted as he or she did, there is no necessity otherwise to examine motive or intention to discriminate: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359-60; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176; and Australian Medical Council v Wilson (1996) 68 FCR 46 at 74. However, I do not see the comment made by the primary judge about intention, the subject of criticism by the appellants, to be relevant to the conclusion that his Honour drew that s 9 did not apply.

55 The appellants also submitted that the primary judge erred by requiring in [138] an obligation on the Government to make the grants and also by requiring a comparison of two acts to show that one involved a distinction. The appellants submitted that if the errors in [138] were recognised, the facts as otherwise found by the primary judge permitted the conclusion to be drawn that contravention of s 9 of the RD Act by the State had been demonstrated.

Disposition of the Appeal

56 Central to the primary judge’s rejection of the claim based on s 9 in [138] were two related propositions: (a) the Government was under no obligation to make any payments to the Church for use on the reserves, and in that context, it was difficult to see how there could be any discriminatory element involved; and (b) there was no real life comparator or comparison against which to assess the "discriminatory element".

57 In my respectful view, the primary judge fell into error in respect of both propositions. The notions underlying the propositions (the need for an obligation to undertake the act in question and the need for a comparator or comparison for a distinction etc to exist) are not necessary elements of s 9(1).

58 The terms of s 9(1) were taken directly from Article 1 of the Convention. Thus, s 9(1) must be construed in that international context: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 230, 240, 251-56 and 277; and Morrison v Peacock [2002] HCA 44; (2002) 210 CLR 274 at [16].

59 There is no readily available or published official collection of travaux préparatoires to the Convention. The terms of Article 1 of the Convention appear to have had their roots in the Report on the Prevention of Discrimination prepared by the Secretary-General of the United Nations, 7 June 1949, for the Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (2^nd Session). There appears to have been no debate about the terms of Article 1, which are wide and flexible.

60 In giving effect to the Convention, the RD Act should be interpreted broadly and beneficially in accordance with the fundamental purposes of the Convention and in particular with the purpose that is emphasised in the preamble: the necessity of eliminating racial discrimination in all its forms and manifestations. As Black CJ said in Australian Medical Council v Wilson (1996) 68 FCR 46 at 48:

"In this context the concept used in s 9(1) and in s 9(1A) of impairing the enjoyment of a right on an equal footing must be taken to be a broad one that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination and the other like types of discrimination that the Act aims to eliminate. The language used in s 9 does not point to any narrower operation, in my view, and nor does the evident policy of the Act. On the contrary, the policy of the Act points to a broad operation and this is of particular significance in legislation of this character: see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J (with whom Deane J agreed) and at 394 per Dawson and Toohey JJ."

61 A broad interpretation of s 9(1) apt to encompass all kinds of acts of racial discrimination is to be preferred in furtherance of the purpose of eliminating racial discrimination in all its forms and manifestations: cf Lerner N, The UN Convention on the Elimination of all Forms of Racial Discrimination, (Sijthoff & Noordhoff, Alphen aan den Rijn, 1980) p 28. Further, it is important to treat the terms of s 9(1) as comprising a composite group of concepts directed to the nature of the act in question, what the act involved, whether the act involved a distinction etc based on race and whether it had the relevant purpose or effect: see Schwelb, E "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996 at 1001.

62 Nowhere in the broad terms of s 9(1) is there any indication that a necessary element for the engagement of the section is the existence of an obligation to do the act. To read into s 9(1) such an element would infuse a legalism and formality antithetical to the broad aims of the section and the Convention. The purpose of the Convention, which can be taken to be the purpose of the RD Act, was the elimination of racial discrimination in all its forms and manifestations – not merely as manifested by people who are obliged to act in a particular way. The RD Act and the Convention were directed to the real world. To achieve the broad purpose referred to requires broad and elastic terminology. As Gibbs J said in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 86:

"The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention, are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence."

63 For the same reasons, one does not read into s 9(1) the need to demonstrate a direct comparator or comparison. The primary judge appeared to require this in [138] in saying that there was no evidence that the Government calculated payments to other organisations using higher wage rates and that there was no suggestion that other grants were made at higher rates to facilitate higher payments to non-indigenous workers. The effectiveness of s 9(1) is not to be denied just because there is not in fact a directly comparable situation. Those suffering the disadvantage of discrimination may find themselves in circumstances quite unlike others more fortunate than they. Though, in this respect, it should be noted that the primary judge said in his reasons that he inferred that the Government was paying below-award wages to indigenous workers on the reserves which it administered: see [135] of his reasons set out at [36] above.

64 The primary judge then concluded in [138] that there was "no basis for asserting that the calculation of the grants involved any discriminatory element." I understand this conclusion to be derived directly from what preceded it – the statement (accurate so far as it went) that there were no comparators in real life to the grants and the calculation of the grants. Further, his Honour was then able to conclude that the difference between what the appellants were paid (derived from the grants) and the amounts paid to others in the community was the result of unspecified factors and unrelated to the acts alleged which were not contrary to s 9(1) because of the lack of a real comparison or comparator.

65 Instead of the reasoning in [138] of the primary judge’s reasons, the correct approach to assess the State’s conduct is to posit the questions thrown up by s 9(1) (recognising the holistic application of the section) to the controversy and presented by the pleadings in their context. These questions are: (1) whether the calculation and payment of the grants involved the setting of a sum for the funding of the Church towards running the reserves for, amongst other things, the payment of wages, based on below-award wages being paid, as distinct from, or, rather than, award wages being paid; (2) whether the distinction just identified involved in the calculation of the grants was based on race; and (3) if so, whether there was the relevant effect referred to by s 9(1). It is important that the first of these questions be understood simply to be whether part of the process of calculation and payment of the grants was the fixing of a sum in the above manner.

66 The recognition that the act of calculation and payment of the grants involved the relevant distinction does not require the raising of another person with whom to compare the acts that affected the appellants. Rather, if the appellants can show that the State decided upon the relevant sums by reference to factors which included the recognition and acceptance that the grants were only directed at the payment of below-award wages, rather than award wages, it can be said that the act of fixing or calculating the sums involved a distinction. For these reasons, the approach of the primary judge in [138] of his reasons was, in my respectful view, flawed.

67 In [141] of his reasons the primary judge dealt with the question of "based on race". Before dealing with [141], it is appropriate to set out the facts that can be taken to have been found by the primary judge in [108], [109], [133], [134] and [135] of his Honour’s reasons:

• To a substantial extent, the reserves (therefore the two reserves in question) were dependent upon the grants from the State.

• The calculation of the annual grants frequently, perhaps always, included a component identified as being for wages, though the decision of the State in this respect did not bind the Church.

• The component of the grants referable to wages limited the Church’s ability to pay substantially more in wages.

• The State knew and accepted that the Church was paying below-award wages on the reserves (therefore the two reserves in question).

• The State knew that it was not financially feasible for the Church to pay substantially more in wages on the reserves (including the two reserves in question) than the amount allowed for wages in the grants.

• In calculating the grants to the Church for conducting the reserves, (including the two reserves in question) the State included in each grant an amount that was calculated using pay rates below award wages.

• The State paid award wages to its own employees who were not employed on reserves.

• The State paid below-award wages to Aboriginal employees on the reserves that it administered directly.

68 The respondent in its submissions on appeal sought to display, by reference to some of the evidence, aspects of the separateness of the conduct of the reserves by the Church from the State and the lack of any control by the State and the lack of specific involvement by the State in fixing particular wage rates. It sought to demonstrate that the calculation of the grants was based on an historical approach and on an approach of using a formula which assumed a certain number of workers – rather than upon any consideration of race - and that the State only concerned itself with increases to the grants. It sought to show that from time to time some Aboriginal workers on reserves were paid wages which met some relevant awards. There was no direct criticism, however, of any of the findings of the primary judge to which I have referred. The matters sought to be made out in submissions by reference to the evidence do not persuade me that any of those facts found by the primary judge, after a long hearing, should not be accepted. Also, importantly, the fact that the payments of below-award wages to Aboriginal workers can be seen as caused by a number of factors, including management and social decisions by the Church, does not deny a relevant operative causal effect of the relevant distinction within the calculation and payment of the grants on the level of wages paid, to the extent that such causal effect inheres in his Honour’s findings.

69 It seems to me that these factual findings make clear that the acts of calculating and paying the grants involved a distinction by the calculation of the grants based on below-award wages, rather than award wages. The question is: Were the acts which involved this distinction based on race?

70 In [134] of his reasons, the primary judge said that the grants were based on race in the sense that they were made to assist indigenous people. The appellants submitted that such a finding is sufficient to satisfy s 9. I disagree. One does not look at the act divorced from the relevant distinction etc in assessing the relationship with race. It is the part of the act that is the distinction etc or the act involving the distinction that must be based on race.

71 The difficulty faced by the appellants is that in [141] of his reasons the primary judge made a finding that the calculation and payment of the grants were not based on race. In the face of the findings, otherwise made by his Honour to which I have referred, it is difficult, however, to understand and accept the conclusion in [141] that any "discrimination" was not "based on race". It is the act involving the distinction (not "any discrimination", being the phrase used by the primary judge) that must be based on race, that is, be done by reference to race. To the extent that his Honour’s approach in [138] of his reasons governed this conclusion the comments earlier need not be repeated. It appears clear, and indeed his Honour found, that the calculation of the grants was made by reference to below-award wages rather than award wages. The clear inference from all the findings is that that was done by reference to those on the reserves in receipt of wages being Aborigines. The State paid below-award wages to Aboriginal workers on the reserves that it administered directly; it calculated grants including a sum for wages based on below-award wages being paid to Aborigines on Church-run reserves; and it paid its own employees not on reserves award wages. The calculation of the grants using below-award wages appears, on the evidence of the Cabinet submissions, to have been by reference to the Aboriginality of the persons on the reserves. The evidence discloses that until 1979 the Government thought that the Aborigines Regulations authorised the employment of Aborigines on reserves at rates different from wage rates established by an industrial award.

72 With respect, I do not think that the conclusion that "any discrimination against the [appellants] was based on the fact that they resided on the missions rather than, on their race", as found in [141], can be sustained. The primary judge said that the argument in answer to that contention, namely that those living and working on the missions were, almost inevitably, indigenous, had not been pleaded. Consequently, his Honour did not consider it. I do not think that this proposition was a material fact required to be pleaded. It was a factual circumstance relevant to what had been exposed for trial: that the calculation and payment of the grants involved a distinction based on race. Reading the evidence, in particular the Cabinet submission and documents, there seems to have been no issue about the missions and reserves being only for indigenous Australians. There was no suggestion that the missions were for non-indigenous Australians. Indeed, that was one premise of the primary judge’s conclusion that there was no comparator. The history of the missions described by the primary judge at [15] to [30] confirms these matters.

73 Whilst it is true (as stressed by the respondent in its submission) that the calculation of the grants was made by reference to many factors, the factual findings made by his Honour, which were not demonstrated to have been wrong, lead to the conclusion that the State calculated the grants based on the workers on the reserves receiving below-award wages rather than award wages, by reference to their Aboriginality.

74 In [142] of his reasons the primary judge denied any relevant effect of the acts in question by positing what would have been the position had no grants been made to the Church. That, in my view, is not the relevant enquiry. The fact is that the State was making grants. It is unnecessary to decide whether there was a legal obligation to do so. Plainly, the State undertook a perceived responsibility to people who were Queenslanders, and Australians. The real question is: Did the calculation and payment of the grants using below-award wages, as opposed to award wages, based on the Aboriginality of workers on the reserves, have the effect of impairing the appellants’ enjoyment of the right to equal pay for equal work? Given the findings of fact made by the primary judge the answer to that question is, yes. There may have been other decisions made by the Church which affected this outcome. However, in circumstances where the State knew that it was not financially feasible for the Church to pay substantially more in wages on the reserves than the amounts allowed for in the grants and where the State calculated the grants in part by reference to below-award wages, the acts of the State involving the distinction based on race can be seen to have had a causal effect on the impairment of the right of the appellants as recognised by Article 5 of the Convention to equal pay for equal work.

75 Thus, applying s 9(1) free of the restrictions placed on it by the interpretation of the primary judge, and using the facts found by the primary judge, I would conclude that in calculating and paying the grants to the Church in the manner that it did between 1975 and 1986 the State contravened s 9(1) of the Act.

76 In these circumstances, I would allow the appeal.

77 The only orders sought by the notice of appeal are as follows:

"(a) That the appeal be allowed;

(b) That the Orders made by the Court on 30 August 2005 be set aside;
(c) That the respondent pay the appellants’ costs of this appeal and the costs of the proceedings before the learned primary judge."

78 The notice of appeal does not seek the entry of judgment in favour of the appellants who were able to persuade the primary judge of lost wages. No argument was put on appeal about the primary judge’s calculations as to damages, including his conclusions that two appellants (the sixth and eighth appellants) had not proved any loss. Nor does the notice of appeal seek declaratory orders. One difficulty with the orders sought in the notice of appeal is that the original proceeding is left without complete dispositive orders. The parties should have an opportunity to consider any further order disposing appropriately of the proceeding below, in the light of the arguments presented on appeal.

79 Given the limited nature of the orders sought on appeal, the only question is whether the orders for costs should take into account the fact that some of the appellants proved no loss of wages. Given the nature of the issues and the conclusions that I have reached, I think it appropriate to make the orders sought in the notice of appeal, without the need to divide up the issues by reference to the findings as to lost wages, so as to make separate costs orders on a less favourable basis for the sixth and eighth appellants. In refusing to make this dissection, the kinds of consideration referred to by the primary judge in [167] of his reasons remain, in my view, relevant.

80 I would make the orders sought in the notice of appeal together with an order permitting the parties to make submissions on an appropriate dispositive order.

81 I should add that the limited nature of the relief sought in the notice of appeal and the limited nature of the argument on appeal in conformity with it make it unnecessary to discuss the not necessarily straight-forward question of monetary relief consequent upon a finding of contravention of s 9, as opposed to s 15, of the Act.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated: 17 November 2006

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 377 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JAMES STANLEY BAIRD FIRST APPLICANT MARIE CREEK SECOND APPLICANT FRANK TAYLEY THIRD APPLICANT HENRY WALKER FOURTH APPLICANT HENRY DEERAL FIFTH APPLICANT EDGAR IVAN GIBSON SIXTH APPLICANT ANITA KAREN GORDON SEVENTH APPLICANT ELLA WOIBO EIGHTH APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	SPENDER, ALLSOP & EDMONDS JJ
DATE:	17 NOVEMBER 2006
PLACE:	SYDNEY (BY VIDEO LINK TO BRISBANE) (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

EDMONDS J:

82 I have had the advantage of reading a draft of the reasons for judgment of Allsop J.

I agree with his Honour’s reasons and with the orders he proposes to make.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 17 November 2006

Counsel for the Appellants:	Mr R Lilley and Mr D Rangiah
Solicitor for the Appellants:	Bottoms English Lawyers
Counsel for the Respondent:	Mr J Murdoch SC and Mr C Murdoch
Solicitor for the Respondent:	Crown Solicitor
Counsel for the Intervenor:	Mr N Poynder and Mr J Hunyor
Date of Hearing:	20 February 2006
Date of Judgment:	17 November 2006