Dopking v Dept of Defence [1995] HREOCA 3 (25 January 1995)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No. H92/8

Between:

Michael Dopking

Complainant

and

Department of Defence

Respondent

REASONS FOR DECISION

of the President, Sir Ronald Wilson

Resumed Hearing: Sydney, 24 October 1994

Appearances: Complainant: Appeared in person.

Respondent: Mr J.S. Hilton with Ms R. Henderson,

instructed by Australian Government Solicitor

INTRODUCTION

This is the third time, by courtesy of others, that I have had the opportunity of reflecting, in the light of the facts of the present case, on the legislative purpose implicit in s.6 of the Sex Discrimination Act 1984 (Cth) ("the Act").

THE COMPLAINT

The complainant is a single member of the Australian Defence Force ("the ADF") and is currently stationed in Toowoomba, Queensland. In November 1988 he was posted by the Royal Australian Air Force to Townsville, Queensland where he initially took up accommodation in barracks on-base. Thereafter he purchased and moved into his own house in Townsville. In January 1989, he applied for financial assistance pursuant to a relocation expenses allowance administered by the ADF and known as Determination 0509. This determination was originally made on 23 June 1982 pursuant to s.58B of the Defence Act 1903 (Cth). Although strictly speaking, the determination is to be cited as the "Dwelling Purchase or Sale Expenses Allowance", it has been referred to throughout the history of this complaint in the Commission as the "Home Purchase or Sale Expenses Allowance".

The scheme is intended to assist eligible members of the ADF who purchase or sell a home as a consequence of a posting from one locality to another in Australia. The scheme entitles an eligible member of the ADF to recover certain expenses incurred in connection with the purchase or sale of a home including, but not limited to, solicitor's costs, agent's commission and stamp duty: clause 32 of the determination.

In due course the complainant was informed by the ADF that as he was a member without a family (as defined) and as on-base accommodation was available, he was not entitled under the scheme to receive any reimbursement for expenses he had incurred in connection with the purchase of his Townsville dwelling. The ADF reached this conclusion by reference to clause 17 of the determination, which provides:

An allowance is not payable to a member without a family in respect of the purchase of a dwelling unless Service accommodation is not available and is unlikely to be available in the immediate future in the locality.

Elsewhere in the determination (clause 2), "family" is defined to mean:

... one or more of the following persons who normally reside with the member:

a) spouse of the member;

b) a child;

c) where the member is widowed, unmarried or permanently separated, or where the member's spouse is invalided - a person acting as a guardian or housekeeper to a child;

d) any other person approved by an approving authority;

Having been refused an allowance under the scheme, the complainant lodged a complaint with the Commission, pursuant to the Act. The essence of the complaint is that by limiting the availability of the allowance (with a few exceptions) essentially to members of the ADF with a family, the ADF is discriminating against single members in the position of the complainant on the basis of their marital status.

In earlier hearings I have held that the operation of the determination in such a way as to disentitle the complainant from receiving any benefit under it amounted to unlawful discrimination based on marital status, contrary to s.14(2), relying on the definition of marital status discrimination contained in s.6(1)(b) of the Act. That conclusion has been set aside by the Full Court of the Federal Court: Commonwealth of Australia -v- Human Rights and Equal Opportunity Commission [1993] FCA 547; (1993) 46 F.C.R. 191. Accordingly, the Inquiry has now been resumed, in accordance with their Honours' decision, to consider whether or not the operation of the scheme as it affected the complainant, constituted unlawful marital status discrimination in reliance on the definition of marital status discrimination contained in s.6(2) of the Act - so-called indirect discrimination.

STATUTORY PROVISIONS

The material provisions of the Act include the following:

4(1)

...

"marital status" means the status or condition of being:

(a) single;

(b) married;

(c) married but living separately and apart from one's spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person;

6(1) For the purposes of this Act, a person (in this subsection referred to

as the "discriminator") discriminates against another person (in this subsection

referred to as the "aggrieved person") on the ground of the marital status of

the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person;

(b) a characteristic that appertains generally to persons of the marital

status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the marital

status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in

circumstances that are the same or are not materially different, the

discriminator treats or would treat a person of a different marital status.

(2) For the purposes of this Act, a person (in this subsection referred to as

the "discriminator") discriminates against another person (in this subsection

referred to as the "aggrieved person") on the ground of the marital status of

the aggrieved person if the discriminator requires the aggrieved person to

comply with a requirement or condition:

(a) with which a substantially higher proportion of persons not of the same

marital status as the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case;

and

(c) with which the aggrieved person does not or is not able to comply.

Section 14 of the Act deals with discrimination in the workplace. In particular, s.14(2) prohibits discrimination during the course of a person's employment. Section 14(2) provides:

(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.

THE SUBMISSIONS OF THE PARTIES

It is common ground between the parties that:

(a) Single barracks accommodation was available to the complainant on his posting to Townsville;

(b) He purchased a dwelling off-base and exercised the freedom of choice allowed to him to occupy that dwelling instead of the on-base accommodation;

(c) He failed to qualify for the payment of the allowance because he was "a member without a family" within the meaning of the determination; and

(d) He would have qualified for payment of the allowance if, notwithstanding his single status, he had satisfied the definition of "a member with a family" in the determination.

The complainant accepts that it is for him to establish in these circumstances that the respondent has unlawfully discriminated against him on the ground of his marital status, contrary to ss.6(2) and 14(2) of the Act. He argues that the condition of eligibility that he be a member with a family is one with which he does not or is not able to comply, while on the other hand a substantially higher proportion of married members do comply or are able to comply with that condition. So far so good. The respondent does not contest these propositions. The critical factor which remains for the complainant to prove is that, having regard to the circumstances of the case, the condition with which he is required to comply - namely, that he be a member with a family - is not reasonable.

It is on this element of reasonableness that the respondent joins issue with the complainant. Consistently with the evidentiary onus resting upon it, the respondent has adduced evidence to explain the rationale for the distinction the determination makes between a "member with a family" and a "member without a family". Broadly speaking, the respondent advances two arguments in support of the reasonableness of the distinction drawn by the determination.

The first submission is that the needs and the community expectations of the two categories are different. It is expected that a member with a family be given the opportunity to live with his/her family. Such a member needs a larger living space than a member without a family and it must be self-contained so as to provide adequate privacy. On the other hand, according to the respondent, a single member's needs are met in an appropriate way not only by the provision of on-base accommodation but by a total subsidised package which includes food, utilities and laundry, all of it in return for a nominal contribution, in 1989 terms, of $55.00 per week.

For his part, the complainant testifies that he does not wish to accept the cramped and regimented lifestyle which the respondent's package necessarily imposes upon a member without a family. He prefers to occupy a home of his own because it gives him more room and greater comfort than the single room provided on-base. He likes to think that the bed on which he sleeps belongs to him and that if he chooses to have a pet, he may do so.

The second submission advanced by the respondent is that the requirement that the complainant be a member with a family if he is to qualify for the allowance is reasonable when viewed in the light of its resource implications. Those implications were said to yield several elements that bear on the efficient management of the respondent's resources. First, the accommodation infrastructure already in place in Townsville gave the respondent the capacity to house a large number of members without a family on-base. Viewed overall, more than 90% of all single quarters are located on the respondent's bases. It is economically desirable that this accommodation be utilised to the fullest extent possible; overheads, including food and utilities, remain fairly static over time because of economies of scale. The extension of the scheme, if it were to result in more members without a family preferring to acquire their own accommodation off-base, would increase any under-utilisation of the on-base accommodation infrastructure. Secondly, the availability of the allowance to members with a family provided an incentive whereby the demand by those members for accommodation, whether on or off-base, would be eased, thereby relieving the respondent of the cost of providing further married quarters. Generally speaking, the demand for married quarters exceeds the supply. Thirdly, only approximately 17% of the respondent's married quarters are on-base, the balance consisting of off-base accommodation owned or leased by the respondent, which can be acquired or disposed of readily, thereby enabling the supply to be adjusted to meet the demand. With less than 10% of all single quarters being located off-base, there is not the same flexibility to meet fluctuating demand in relation to such quarters. Fourthly, in 1991 the average allowance payable in any particular case was between $3,000 and $4,000. Finally, there is a potentially recurrent character attaching to the scheme with every fresh posting of a member who wishes to acquire accommodation off-base.

The statistical background to the questions of resources provided by the respondent showed that in October 1991 there were approximately 30,000 members without a family in the ADF, compared with 36,000 members with a family. The evidence does not reveal the number of members without a family who have chosen to acquire their own accommodation off-base. The complainant submitted that the respondent's concern about resources was exaggerated. He observed that he lived off-base for 8 years when posted to Amberley in Queensland and suggests that the cumulative amount of subsidies that would have been contributed towards his living expenses had he lived on-base would more than offset the allowance he should have been entitled to receive.

FINDINGS

I am unable to accept the argument for reasonableness based on either the respondent's perception, or the community's expectation, of the needs of the ADF member without a family. As I have said in my previous decisions in this case - a view which I understand to have found support in the opinions of their Honours the members of the Federal Court (Commonwealth of Australia -v- Human Rights and Equal Opportunity Commission at pp.194 and 210-211) - the relative worth of different physical living conditions is a subjective one that is best determined by the person aggrieved. It is not for the respondent unilaterally to determine the kind of lifestyle that will best meet its members' needs. In my opinion, the complainant gave a plausible set of reasons for preferring to occupy a home of his own off-base rather than accept the subsidised package thought by the respondent to meet his needs. It is immaterial whether or not his views are representative of the majority of members without a family. It cannot be said that they are irrational or undeserving of respect.

It was submitted by the respondent that I must view each of the packages provided to members with a family and members without a family respectively in their entirety and that if I do, I must conclude that one class of members is not treated less favourably then the other. I do not find the argument helpful. In my opinion, s.6(2) and the concept of indirect discrimination necessarily import a conclusion of less favourable treatment if it be found that the discriminator unreasonably requires a person to comply with a condition with which he or she is unable to comply while a substantially higher proportion of persons of a different marital status are able to comply with it. I do not think it appropriate to consider the question of less favourable treatment as a separate issue when dealing with indirect discrimination under s.6(2) of the Act. In any event, I stress again the relevance of the reasonable subjective judgement of the person aggrieved in determining any question of less favourable treatment.

I find the question of the operation of resource implications on the reasonableness of the condition a complex and difficult one. I am sensitive to the important and onerous responsibilities of the respondent in relation to the efficient financial management of the ADF. On the other hand, there is ample evidence in the Act of the Parliament's intention to give the Act a paramount operation save where it expressly provides otherwise: cf. for example, s.26 and the legislative history of s.40. I remind myself that one of the objects of the Act is to eliminate, so far as is possible, discrimination between persons on the ground of their marital status.

It is to be noted, in any discussion of resource implications, that one consideration in support of the determination is the incentive it provides to members with a family to provide their own accommodation off-base and thereby relieve the respondent of the obligation to provide that accommodation.

It is true that if the allowance were to be made available to members without a family - thus making it available to all members without distinction - there would probably not be the same prospect of savings occurring to the respondent because there is no shortage of single barracks accommodation on-base.

On the other hand, I find that to make the allowance available to all members without distinction would not be likely to result in a significant increase in expenditure for the respondent. The allowance is a comparatively modest sum which is not likely to result in a marked shift of members without a family from barracks accommodation to private housing off-base. The decision to make the very substantial financial investment involved in buying a house off-base, especially when postings are of uncertain duration, is not likely to depend on the fact of eligibility to receive the allowance.

A further observation may be made in this regard. Over time, given a significant number of members without a family taking advantage of the scheme, the respondent would no doubt seek to increase the proportion of single accommodation off-base, so as to enable a greater flexibility in handling fluctuating demand.

CONCLUSION

After careful consideration of all the circumstances I have come to the conclusion that, in a case where there is ADF accommodation available to a member without a family, the requirement or condition imposed on the complainant's eligibility for the allowance, namely, that he be a member with a family, being a requirement or a condition with which he is unable to comply but with which a substantially higher proportion of persons of a different marital status to that of the complainant are able to comply, is not reasonable having regard to the circumstances of the case.

In coming to this conclusion I have weighed the possibly adverse implications of my decision against the fundamental importance of preserving, so far as is reasonably possible, the same freedom of choice for members without a family as is presently available to members with a family. The imperatives of equality must not be allowed to give way too readily to the demands of expediency.

I therefore find the complaint to be substantiated.

DETERMINATION

In the light of the foregoing findings of fact, I make the following determination;

(a) I declare that the respondent has engaged in conduct rendered unlawful by the Act and should not continue such unlawful conduct.

(b) I declare that the respondent should act on the complainant's application for the allowance by paying to him the same amount as that to which he would have been entitled if he had been a member with a family.

(c) I declare that the respondent should pay to the complainant damages, by way of compensation for the injuries to his feelings occasioned by the unlawful conduct, in the sum of two thousand dollars ($2,000.00).

DATED at Sydney this day of January 1995.

................................................

Sir Ronald Wilson

President

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No. H92/8

Between:

Michael Dopking

Complainant

and

Department of Defence

Respondent

DETERMINATION

(1) I declare that the respondent has engaged in conduct rendered unlawful by the Sex Discrimination Act 1984 (Cth) and should not continue such unlawful conduct.

(2) I declare that the respondent should act on the complainant's application for the Home Purchase or Sale Expenses Allowance by paying to him the same amount as that to which he would have been entitled if he had been a member with a family.

(3) I declare that the respondent should pay to the complainant damages, by way of compensation for the injuries to his feelings occasioned by the unlawful conduct, in the sum of two thousand dollars ($2,000.00).

DATED at Sydney this 25th day of January 1995.

................................................

Sir Ronald Wilson

President