Trindorfer v Commonwealth of Australia [1996] HREOCA 36 (11 December 1996)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1975 (CTH)

No. H 96/41

Between

CARL TRINDORFER

Complainant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR DECISION OF THE INQUIRY COMMISSIONER

THE HON JOHN NADER, QC

Hearing Location: Sydney

Hearing Date: 14 October 1996

Appearances: Complainant in person

Ms Henderson of Counsel instructed by Australian Government Solicitor for the Respondent

Date of Decision: 11 December 1996

1. INTRODUCTION

Corporal Trindorfer, complains under the Sex Discrimination Act 1984 (Cth) (the Act) that he has been, and continues to be, unlawfully discriminated against by the respondent, the Commonwealth of Australia, by reason of section 14(2) of the Act.

Corporal Trindorfer is a member of the Royal Australian Air Force (RAAF) posted to 501 Wing at the RAAF Base, Amberley, Queensland. He is an avionics fitter by trade.

Corporal Trindorfer was "advised" by his section commander, Flight Sergeant Blue, to cut his hair. I take that to mean that he was ordered to do so, but it does not matter because he was told by Sergeant Blue that failure to do so could result in a charge under the Defence Force Discipline Act for failure to obey a lawful general order in relation to RAAF hair and grooming standards. The relevant order is Defence Instruction (Air Force) AAP 5135.003. Under the heading "Grooming Instructions" there appear separate prescriptions for the grooming of males and females. They are set out hereunder:

Males

281. Hair. hair is to be kept neatly trimmed, and in a conservative style which does not interfere with the correct wearing of the Service head-dress. The hair is to be gradually tapered to the neckline and is not to cover, touch or overhang the ears or collar. Only conservative and natural tones of artificial hair colours are permitted. The acceptability of hairstyles is to be based on neatness, cleanliness and general appearances when wearing uniform. A member is not to shave the hair on his head except with the approval of a medical officer.

282. Sideburns. Sideburns are not to extend below the level where the ear lobe joins the head. They are to be neatly trimmed and at the same width throughout their length. Bushy sideburns are not to be grown.

283. Moustaches. A moustache is to cover to the entire top lip, is to be kept neatly trimmed and is not to extend below the upper lip.

284. Beards and Whiskers. As a general rule, the face is to be shaven daily (defined as facial hair other than sideburns or moustaches) may be worn if there is a medical reason which

temporarily prevents shaving. In such cases the following procedures are to apply:

a. Approval for a Period up to One Month. The member's CO on the advice from the medical officer may authorise a member to stop shaving for a period up to a month.

b. Approval for a Period up to Six Months. A members CO on the advice of a medical officer may authorise to stop shaving for up to six months. However, a Medical Fitness Review procedure is to be initiated. Approving authorities are to endorse the approval and duration on a form PM237 (Employment Standard Advice).

c. Period in Excess of Six Months. When the medical condition requires the member to stop shaving for a period in excess of six months, Medical Fitness Board procedures to be initiated.

During a period that a member has been given approval not to shave, the resulting growth of hair is to be kept short and neatly trimmed.

285. Wigs. Wigs and hairpieces may only be worn to cover natural baldness or a physical disfigurement. If worn, they are to to [sic] comply with the requirements of paragraph 281 and local safety orders and instructions.

Females

286. Hairstyles. Hair is to be kept in a neat and conservative style of the bulk which does not interfere with the correct wearing of service head-dress. Ponytails may not be worn by personnel in uniform. The hair is not to sit or sweep across the shoulders and is to be above the rear lower level of the buttoned collar. Only conservative and natural tones of artificial hair colours are permitted. Heavy mesh nets or an excessive number of hair pins are not permitted when in uniform or on duty. The acceptability of hairstyles is based on neatness, cleanliness and general appearance when wearing uniform. A member is not to shave the hair on her head except with the approval of a medical officer.

287. Wigs. Wigs and hairpieces are to comply with the requirements of paragraph 286 and local safety orders and instructions.

288. Haircombs. A female member in uniform may wear one or two haircombs in her hair

provided the combs are in plain design, transparent, black, brown or tortoiseshell in colour and no more than 80mm in length.

289. Cosmetic. A female member may wear facial make-up provided that it is used in moderation.

It was not alleged that Corporal Trindorfer did not keep his hair clean and wear it in a tidy manner.

Corporal Trindorfer contends that the grooming instructions for male members of the RAAF are less favourable to him than are the grooming instructions that female members have to comply with, and that the male grooming instructions are discriminatory within the meaning of subsection 5(1) of the Act and therefore unlawful under section 14 of the Act. He says that male members of the RAAF are subject to stricter instructions regarding the length of their hair than are female members for arbitrary reasons flowing from a 20th century tradition that male soldiers wear their hair short. He says that there is no practical basis for the difference in standards: a contention that, even if it were true, might not be determinative of this inquiry. Corporal Trindorfer argues that women members doing the same work as Corporal Trindorfer wear their hair longer than he. Nor, he says, are there any hygiene related reasons why men should not wear their hair as do women.

Corporal Trindorfer points out that the Defence Equal Opportunity (EEO) Corporate Strategy is to ensure that discrimination of any form is removed from the workplace and that it is therefore "hypocrisy" on the part of the RAAF to discriminate arbitrarily with respect to grooming by reason only of the sex of a member. I say at the outset that, to impute moral fault such as hypocrisy to the respondent in this case, is inappropriate and unhelpful.

2. THE LAW

Subsection 14(2) of section 14 of the Act, prohibiting discrimination in employment, is as follows:

14(2) [Other unlawful acts] It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential 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 law determinative of the issue to be decided in this inquiry is contained in subsection 5(1) of the Act set forth hereunder:

5(1) [Less favourable treatment] For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of -

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex 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 the opposite sex.

This is not a case where indirect discrimination is alleged, nor could the facts support such a claim.

Doubtless with the requirements of subsection 5(1) of the Act in mind, Corporal Trindorfer properly set out in his statement of complaint the ways in which his having to comply with grooming regulations is less favourable treatment of him, as follows:

Effects of Discrimination on Complainant

11. The Complainant feels that the discriminatory hair rules place him at a disadvantage in his social life outside the RAAF. Although the Complainant may remove his uniform after hours, the same does not apply in relation to a haircut. The requirement for males to have a short military haircut denies members the freedom of choice available to women in the RAAF. The Complainant feels his access into certain social groups has been restricted by the necessity to have a short haircut following the RAAF male grooming standards which do not allow him the option of enjoying a longer hairstyle available to female members of the RAAF.

12. Further, the short military haircut labels the Complainant as a RAAF member which can result in harassment by the local civilian community, some of whom dislike RAAF members. The Complainant would not be so easily identifiable if he could wear his hair according to the female grooming instructions.

12.[sic] Breach of the male grooming standards in force in the RAAF make the Complainant liable to be charged under the DFDA for failure to comply with a lawful general order. A conviction under the DFDA is a criminal conviction. The Complainant could be left with a criminal record as a result of discriminatory rules in force.

When requested by me at the hearing to express orally the ways in which he is disadvantaged by the grooming instructions complained of, Corporal Trindorfer said:

Mr Trindorfer: I feel in myself, I feel that I look my best. My performance is increased and therefore my acceptance in the community is therefore enhanced.

Commissioner: Could you be as specific as you can, because I think this is potentially a critical point in this case, to tell me as particularly as you can in what way you are disadvantaged in any sense by not being allowed to wear your hair long?

Mr Trindorfer: Besides what I said about not ...

Commissioner: Yes, you have said you would feel better ...

Mr Trindorfer: Yes.

Commissioner: ... but leaving aside that, is there anything else?

Mr Trindorfer: Also I have experienced, not personally, but word of mouth by other personnel, of the trend of anti-service personnel surrounding a base, as in the local community. There's always a conflict.

Commissioner: You ought to belong to the legal profession. Go back to the Bible itself and you will find it has been hated profession for hundreds of years, but go on, I'm being facetious. You say that there's an anti-military sentiment amongst the people that live around your base.

Mr Trindorfer: Yes, Sir.

Commissioner: And that you would be able, as it were, to some extent, conceal the fact you are a member of air force by having your hair long.

Mr Trindorfer: There is a potential to be picked out or segregated by the local community. Sure, if you like the short hair, then ...

Commissioner: Are there no members of the local community with hair as short as yours ...

Mr Trindorfer: I'm sure there are, sir.

Commissioner: Do you know whether they feel this ...

Mr Trindorfer: I don't know, sir.

Commissioner: Thank you for that. Is there anything else? Is there any other point of disadvantage that you can be specific about? You don't have to. I'm just giving you the chance.

Mr Trindorfer: Depending on which social circles that a person decides to try and blend in with, it may not be a physical threatening situation, but there are certain circles where the norm is the long hair, and to enter into those circles there's a disadvantage trying to get in with a military-style haircut.

Commissioner: Because those people identify you with the military and they're not favourably disposed towards the military.

Mr Trindorfer: Not, not necessarily just because of the military, just because, you know, he's got long hair and all of his mates have long hair and therefore that's the type of appearance that they want to associate with and therefore anything other than that would be unacceptable to them.

Commissioner: Do you feel a little self-conscious in your community about being a member of the air force?

Mr Trindorfer: No, sir, I'm proud of it.

Commissioner: It didn't sound to me as though you were a few minutes ago, but isn't it a cause of problems in the community? Isn't that what you're indicating to me?

Mr Trindorfer: There can be some resentment by the community towards local personnel.

Commissioner: Can I just get this right? You mean there are some people, no doubt you would agree that they were uninformed and were ill-disposed people in the community around your base who, when they see someone that looks as though he or she, presumably he or she is a member of the air force, they become hostile in some way. Is that right?

Mr Trindorfer: That can happen, sir.

Commissioner: Your belief is that if it wasn't so obvious that you were a member of the air force, that many of those incidents would not occur. Have I put it fairly?

Mr Trindorfer: Yes, sir.

Commissioner: Yes, all right.

Mr Trindorfer: You could say that.

Commissioner: Is there anything else?

Mr Trindorfer: No, sir.

The RAAF responds to Corporal Trindorfer's complaint by saying that the existence of different grooming instructions for males and females does not involve less favourable treatment of Corporal Trindorfer and, therefore, that it is not discriminatory in the relevant sense.

Having regard to the terms of subsection 5(1) of the Act, the determinative question to be answered is whether, by its grooming instructions, the RAAF treats Corporal Trindorfer less favourably than it treats female members.

The RAAF contends that the grooming requirements for both male and female members are neutral in the relevant sense, favouring neither sex.

In the context of subsection 5(1) of the Act, what did the Parliament intend the words "treats the aggrieved person less favourably" to mean in a case of this kind? Not exercising judicial power, it would be inappropriate for me to attempt to answer that question in that general form for any purpose beyond the resolution of this inquiry. For that purpose I have to answer the more particular question, whether the different grooming instructions promulgated by the RAAF for male and female members constitute less favourable treatment of Corporal Trindorfer than they do of the female members.

By what criterion is favourableness to be measured in order to determine whether such treatment is less favourable in the relevant sense? Is it enough to render treatment less favourable only that the aggrieved person does not like it: that he or she feels bad about it? Or, must there be some more objective measure of favourableness: a standard beyond the mind or sensibilities of the aggrieved person?

If, to render treatment less favourable, it were enough that the aggrieved person considered it to be less favourable and did not like it, or thought that treatment being meted out to persons of the opposite sex was more favourable, then the question whether the alleged discriminator's conduct was unlawful would depend upon the feelings or opinions of the aggrieved person. It is unlikely that the Parliament intended the question, whether a person had behaved unlawfully, to depend solely on a matter entirely subjective to another person. Tastes and preferences differ to such an extent that one person may consider treatment to be less favourable to him/her that another person of the same sex may consider to be more favourable. The lawfulness of a person's conduct could not have been intended by the Parliament to depend on such an uncertain standard.

But there could hardly be doubt that the feelings and opinions of the aggrieved person should be taken into account as a relevant circumstance in making a decision whether that person has been treated less favourably than another. I believe that the opinion of the aggrieved person may be a relevant consideration and that it should be appropriately considered.

Allowing that the reasons of the aggrieved person should be taken into account in considering the question of favourableness, I think that subsection 5(1), properly construed, requires favourableness to be measured, as to more or less, by reference to some standard having a strong element of objectivity. Or, in other words, the opinion of the aggrieved person should have a degree of universal acceptance that extends beyond the mind of the aggrieved person alone, or of an unrepresentative minority of like-minded persons.

What standard of measure of favourableness should be applied in a case such as this? I would take into account what I perceive to be the opinion of a reasonable well informed member of the community who is cognisant of all the relevant facts and who, as a well informed citizen, has a good understanding of the nature and purposes of a defence force, and who would take into account Corporal Trindorfer's own reasons for believing he has been discriminated against. I will act upon my own view of such a person's opinion of the question of favourableness.

This may be thought to be a back door way for the tribunal of fact to intrude its own opinion. It may indeed be a way in which my opinion will manifest itself, but the general approach has the blessing of time honoured practice. The quite ancient "reasonable man" as the arbiter of negligence was not a more objective standard. I think the duty of the tribunal is to make a sincere effort to ascertain from general experience what the opinion of such a hypothetical person would be.

I repeat that the reasonable member of the community I have postulated would not ignore the opinions of the aggrieved person, but would test them against his/her own more universally held opinions.

I think that the hypothetical person would, in addition to the specific reasons given by the aggrieved person, consider and take into account the matters I have dealt with below.

The background against which the opinion I seek would be formed, should include a number of general matters.

3. THE NATURE OF THE DEFENCE FORCE

The very raison d'etre of the defence force is the possibility that it will take part in a war in defence of the Australian nation, or of another nation to which Australia may, at the material time, have or accept defence obligations: such a war may be limited or total. I think that proposition to be unarguable. Unpalatable as it is to express such ideas, the survival of Australia as a self governing nation may depend upon its defence force. The need for a defence force is a fact borne out by history, but more importantly it is the judgment of the Australian people made manifest through the Parliament. The Australian people, through successive governments, from the beginning of the nation's existence as a body politic, have spent a large proportion of their wealth on the maintenance of a defence force.

From time immemorial, and in modern times, human kind has been beset by war. It is, regrettably, part of the human condition. In this century there have been two total wars in which Australia was a combatant. As well, there have been a number of wars and other military operations more limited but, for those involved, deadly, in which Australia has taken part. It would be vain to believe that we are the first generation of human beings to hope that at last the world is entering a more or less permanent era of peace. We must accept the possibility that war may again involve the Australian defence force.

But, it must be observed, that the likelihood of the contingency of war involving the Australian defence force is not for any tribunal or court to assess. Momentous decisions of this kind are the responsibility of those who have been elected to govern Australia. They, by establishing a costly defence force, demonstrate that they believe that military aggression imperilling Australia, and/or "neighbours" to whom we owe a duty of care, is a real possibility.

The existence of a defence force also acts as a deterrent to those who may contemplate aggression against Australia. Therefore, the defence force must be clearly seen by such persons to be effective and capable of actual defence. This proposition is beyond argument. The very likelihood of war involving Australia is reduced by a potential aggressor's awareness that we are ready, willing and able to defend ourselves.

The foregoing did not require to be said, but, I put it in as the background and as the logical preliminary proposition in the argument upon which this decision depends. I therefore proceed from here on the basis that the defence force may one day be necessary for our security and even to our survival as an independent, self-governing people.

Once the necessity for a defence force is accepted, it follows that it must be prepared to operate in any military engagement with the greatest possible efficacy. It must be and remain as efficient a machine of war as those responsible for it are capable of making it. The very outcome of a war with all its sequelae may depend on it.

A defence force is, and has been traditionally, a disciplined force. That it be a disciplined force is an essential condition of its efficient operation as a defence force. No-one seriously argues that a defence force worthy of the name can be other than a disciplined body with a hierarchical structure. Indeed, it is only during my own time as a member of the legal profession that some of the characteristics of the relationship of employer and employee have entered the relationship of defence force and soldier. These reasons do not call for elaboration of that change here. It is enough to say that the defence force remains essentially a disciplined body which differs greatly from a civilian commercial organisation in many respects by reason of that fact.

It is in the light of the foregoing that the question, whether by promulgating the grooming instructions for service personnel, servicemen are treated less favourably than servicewomen, has to be answered.

4. MORALE

It was put to the inquiry by the RAAF that:

The members of the Australian Defence Force constitute a professional fighting force drawn from disparate backgrounds, differing past experiences. A sense of interdependence and cohesion is central to the task of building teams of people whose core purpose is, if and when it becomes necessary, the conduct of armed hostilities. The composition of the teams changes from time to time, and the sense of esprit de corps has to be constantly reinforced. No single practice or policy of the Australian Defence Force, in this case the RAAF, can be said to produce a cohesive team of itself. However, the regulation grooming standards are unquestionably part of the process. Each member is required to present in the same manner as other members. The requirement that members wear uniform and comply with dress and hair grooming standards prompts them to identify with the RAAF, with particular organisations within the RAAF and with one another. It is for these reasons that the Australian Defence Force, including the RAAF, imposes such standards.

For a very long time indeed, it has been accepted without question by defence experts that the higher the morale of a defence force, the more effective it is as a defence force. Other factors being equal, a defence force with higher morale is more effective than one with lower morale. That is the received wisdom, in consequence of which, it is accepted that every conceivable device must be used to inculcate and promote morale in a defence force.

Therefore the commanders of a defence force have an obligation to implement all of those things which tend to create, preserve and increase morale in a defence force. This cannot be overemphasised. That sense of comradeship, "mateship", esprit de corps, somewhat ineffable, but readily identified by people who face peril together and who are conscious of the extent to which their lives depend on one another, is something that even common sense tells us is a quality of paramount importance.

5. UNIFORMITY

To repeat a part of the passage of the submission quoted above:

No single practice or policy of the Australian Defence Force, in this case the RAAF, can be said to produce a cohesive fighting team of itself. However, the regulation grooming standards are unquestionably part of the process.

Tribunals and courts have no right to lose sight of the fact that this is the judgment of experts steeped in the military tradition. I say "experts" advisedly. The art and science of war is as old as human history. It had already become quite sophisticated in ancient times. There is a large body of science and practice that guides the creation of a defence force, its maintenance and training, and the conduct of war itself. That body of science and practice is imparted to the officers of the defence force as part of their service education, and becomes the special expertise of its commanders and of those whose task it is to manage the defence force and decide questions of policy with respect to its governance, and those whose task it is to advise the managers and decision makers. The science and art of war is handed down from generation to generation.

For those of us who have never served in the defence force in active service, the effect of uniformity of the appearance of its members upon morale may be understood but not fully realised. I think it is one of those things in the practical order that can only be fully realised experientially. However, that is not to say that it cannot be understood by persons who have not had analogous experiences.

It is not appropriate to enter into a dissertation on the relationship between uniformity of appearance of members of the various parts of the defence force, on the one hand, and the morale and esprit de corps of the force, on the other. But, one thing that emerges from the opinions of experts based on the long history of the military art to which I have referred, is that the efficacy of an element of the defence force as a fighting unit depends upon the morale and esprit de corps of its members, and that these elusive but vital qualities are very positively affected by the uniformity of appearance of the members of the unit.

It follows therefore, that the uniformity of appearance of the members of the various units of the defence force is a legitimate objective of its commanders: not as an end in itself, but as a means to an end, enhanced esprit de corps and morale, which is, in turn, a means to the ultimate end - efficacy in combat and as a deterrent to aggression.

Factors affecting the uniformity of appearance of members include not only dress, but also the appearance of those visible variables such as cosmetics, grooming, wigs, beards, moustaches, sideburns, and even rings. It follows that all of these things are legitimate subjects of regulation in the quest for uniformity. Indeed, it is hard to see how uniformity of appearance can be achieved unless all of these things are in fact the subject of some degree of regulation.

Therefore it should be remembered that hair grooming of a member is regulated only insofar as it tends towards a uniformity of the overall appearance of that member and other members.

The defence force, once having decided that uniformity of appearance is desirable for its members, it was necessary to decide upon that particular uniform appearance that should in fact be prescribed. Certain conclusions are manifest from the observed facts.

Before turning to the matter of grooming, it is necessary to point out that in the regulating of such things as those I have mentioned, a degree of arbitrariness is inevitable. Not every particular of every decision about such things can be attributed to a reason by which it can be demonstrated that it is better than some other decision that could have been made. For example, what shade of blue a particular uniform should be is a matter of fairly arbitrary choice, but once having decided that uniformity of colour is necessary, all such uniforms must be of the chosen shade. Once it is decided that some particular feature of a persons appearance has to be regulated to effect uniformity of appearance, some decision has to be made to give effect to it, and, within a range of possible choices, the actual choice may be arbitrary. This point hardly needs further elaboration.

6. DIFFERENTIAL TREATMENT OF MEN AND WOMEN

The first thing to note is that the imposed uniformity is incomplete as between the sexes. Dress and grooming instructions are completely the same for all male members doing the work Corporal Trindorfer does. Such instructions are the same for all women doing that work. But the instructions for men differ from the instructions for women. In this lies the seeds of Corporal Trindorfer's grievance. When it comes to prescribing dress and grooming for persons of each sex, uniformity is not imposed to the point where male and female members are required to wear identical uniform to one another and to groom themselves identically.

Again, one may easily make inferences from circumstances. It requires little observation to notice that the dress and grooming instructions for women members of the RAAF involve an attempt to reproduce uniformly a kind of conservative average of the dress and grooming practices of women in the general community. They are grooming instructions manifestly based on female general practice in the matter of dress and grooming. The same can be said, mutatis mutandis, of the dress and grooming instructions for male members. It is manifestly a case of the RAAF making an exception to the overall requirement for uniformity in order to accommodate its members' desire to dress and groom like men and women rather than to present a unisex appearance to the world, and also to accommodate the desire of the average member of the community to have the members of its defence force also continue to appear as members of the community at large. I have little doubt that the morale benefits of recognising some traditional differences in male and female uniforms far outweighs any morale gain that might arise by having male and female defence force members dress and groom identically.

The defence force continues to be part of the larger community of citizens making up the general community, a community in which, as a very general proposition, it can rightly be said that men on the one hand, and women on the other, dress and groom differently from one another in recognisable ways, while men dress and groom similarly to one another in ways that are recognisable, as do women. These differences are observable across the whole range of attire from the most formal dress to the most casual. That there are very many exceptions to these generalities does not detract from their validity as true assertions.

7. CONCLUSIONS

Once it is established that there is sufficient reason for members of the defence force to be required to present a uniform appearance, with concessions to the sexes giving some recognition of traditional differences, the question what that uniform appearance should be must lead to two sets of regulations governing appearance, one for men and one for women.

In determining what the regulations for men should be, it was not unreasonable to set a standard that would be thought to gain the widest acceptance amongst men in the service as well as amongst those outside it who may be considering enlisting. But whatever the single standard chosen for all men, some are bound to be pleased and others displeased. No single dress and grooming standard for all men could possibly meet with the approval of them all. But, having decided that a single standard of dress and grooming is desirable, and having chosen a particular standard in good faith, the fact that some men may be displeased is a fact that those men must accept if they wish to belong to the defence force. I think the choice of the particular grooming standard selected was likely to have been chosen as the most prevalent general style of grooming amongst more conservative men in the general community. The choice of grooming instructions for women was almost certainly similarly motivated.

The dress and grooming instructions for male members may or may not be the very best that can be devised, but I am satisfied that they represent a genuine effort to reflect general male practice in grooming, albeit at the conservative end of such practice, and that such instructions are not inappropriate. As I said earlier, in choosing dress and grooming instructions, within certain limits, the actual choice must be largely arbitrary. However, it has not been shown that the RAAF missed the mark and that it misjudged general grooming practices to a relevantly significant extent when it determined its grooming instructions.

Most of what has gone before in these reasons are conclusions of fact about the reasons for the selection of appearance criteria for which there is little or no direct evidence. However, I believe the conclusions I have reached are the inescapable inferences to be readily drawn from circumstances that are well known to any reasonably observant person. If I were a juror in a criminal trial, I would be satisfied to a very high standard that the conclusions I have reached are the only rational ones that can be drawn from the circumstances.

Although I have spent some time considering the likely rationale behind the RAAF dress and grooming instructions, those considerations, whilst relevant, are fairly peripheral to the matter to be decided. Because, notwithstanding the motivation on the part of the RAAF for the prescribing of the particular instructions affecting Corporal Trindorfer, all that really flows from those considerations is that the instructions were promulgated in good faith for intelligible reasons. The paramount question still remains: Do the grooming instructions discriminate against Corporal Trindorfer? More particularly, are those instructions a manifestation of less favourable treatment to Corporal Trindorfer than to his female counterparts in the RAAF?

7.2 Less favourable treatment

I think it is wrong to assume that a restriction on freedom imposed upon a person who is a member of a disciplined force is less favourable to that person than the absence of the restriction. Such a restriction so imposed may in fact be less favourable to the person, but not merely because it is a restriction on freedom. It is of the nature of a disciplined force that its members are subject to restrictions of freedom in innumerable ways. It is not reasonable for a person who has voluntarily joined a disciplined force to regard a restriction on his/her freedom, as such, as unfavourable to him/her. An acceptable restriction imposed in a disciplined environment may be totally unacceptable in an ordinary civilian environment.

Of course, a restriction imposed in a disciplined service may in fact be less favourable than the absence of the restriction, but that would depend upon the nature of the restriction and its circumstances, not on its quality as a restriction.

In short, I think that in making a judgment, whether a member of the defence force, subject to discipline, is less favourably treated by reason of a particular restriction on his/her freedom, regard must be had to the fact that it is imposed in the context of a disciplined environment as well as to the nature of the restriction.

I give a hypothetical example of an extreme kind to illustrate the point. If the RAAF were to inform its members that henceforth all dress and grooming instructions will be repealed and they are permitted to dress and groom as they wish, would the added freedom granted by the RAAF amount to more favourable treatment of its members than when dress and grooming instructions applied? I do not believe so, and I doubt that the hypothetical reasonable person, on whose opinion I depend, would think so either. I have no doubt that the ordinary member of the RAAF would be bitterly disappointed by the change.

I do not think that a reasonable person sees freedom in a disciplined service, in itself, as more favourable than the requirement to obey orders and comply with instructions. The circumstances, nature and purpose of the restriction upon freedom involved in compliance with the instructions must be a critical consideration.

Therefore, if I am correct in saying that less freedom does not of itself signify less favourable treatment in a situation of discipline, I do not think that by reason only of the restriction on his freedom to grow his hair long, albeit a freedom enjoyed by female members of the RAAF, Corporal Trindorfer is less favourably treated than the female members. The mere fact that female members are given more freedom in a particular respect than are male members does not of itself signify that the male members are treated less favourably than the female members or that the female members are more favourably treated. I do not think that anyone, particularly the female members themselves, would think female members to be better treated if all dress and grooming rules were abolished for them but retained for male members.

The question still has to be answered whether, apart from the mere fact of comparatively less freedom than female members in the matter of grooming, Corporal Trindorfer is less favourably treated by the RAAF by reason of not being able to wear his hair long.

I have had regard to the detriments specified by Corporal Trindorfer himself, but I do not think that any of them signify less favourable treatment of him by the RAAF within the meaning of subsection 5(1) of the Act.

I accept it to be true that Corporal Trindorfer experiences a significant degree of discomfort from having to comply with the grooming instructions for the reasons he has stated and which are repeated in these reasons, but I do not accept that the detriment to Corporal Trindorfer's social life by virtue of his regulation hair cut is a matter that indicates less favourable treatment.

The attitudes of Corporal Trindorfer's friends or acquaintances who think less of him, or who remain more distant from him, for having his hair cut according to RAAF standards, if they in fact do so, are of little value as indicators of less favourable treatment by the RAAF of Corporal Trindorfer: what their reasons are for thinking less of him by reason of his haircut were not given at the hearing or in the statement of complaint. Those reasons may have been helpful, although it is hard to imagine what remotely legitimate reason they could have for not accepting Corporal Trindorfer by reason of his haircut. Their behaviour does not reflect well on them if it is as Corporal Trindorfer says it is. If his friends accept him as a member of the RAAF, they must surely accept those manifestations that are a concomitant of that membership. Of course, it may be that his friends and acquaintances do not think less of him or remain distant from him, but rather, that Corporal Trindorfer has a perception of their doing so, which is not based on the reality. The difficulty Corporal Trindorfer faces alleging the consequence of less favourable treatment to be non-acceptance by friends, is that there is no sufficient causal nexus between the alleged discriminatory treatment by the RAAF, on the one hand, and the non-acceptance by friends as a consequence of less favourable treatment, on the other. The cause of the detriment is the behaviour of his friends; a cause which cannot be said to have itself been caused, in any sufficient sense, by the grooming instructions of the RAAF.

That he may be identified as a member of the RAAF by members of the "local civilian community" who may then harass him as he has described, cannot be taken as an indicator of less favourable treatment of Corporal Trindorfer by the RAAF. Their unfavourable treatment of Corporal Trindorfer is irrationally antisocial and reprehensible. Here again, there is no sufficient causal nexus between the treatment by the RAAF and the behaviour of the hoodlum element that Corporal Trindorfer rightly finds unpleasant. The hair cut may be an occasion for the antisocial element in the community to react badly, but it can hardly be said to cause such reaction. In answer to a question from me, I understand Corporal Trindorfer to have said that there are civilians in the community surrounding his base with haircuts as conservative as those required to be worn by male members.

Corporal Trindorfer said, in effect, that he feels better if he wears his hair long. I do not belittle that sentiment, but I do not consider the deprivation of the better feeling flowing from his having to wear his hair cut short to be a sufficient basis for concluding that he has been less favourably treated by the RAAF, with the consequence that the RAAF has engaged in unlawful conduct under subsection 14(2) of the Act.

Therefore, I do not think that, measured against what I perceive to be the opinions of the ordinary, reasonable, relevantly well informed member of the community referred to above, the requirement for male members of the RAAF to wear their hair shorter than female members constitutes less favourable treatment of male members than of female members within the meaning of subsection 5(1) of the Act.

I reiterate that I do not think that the extra latitude that women members have in the matter of choosing their hair length signifies that they are treated more favourably than is Corporal Trindorfer. The instructions differentiating between men and women are based upon decisions made in good faith based on perceptions of reasonably conservative community standards and recognising the differences in general of male and female fashions. They are different grooming standards which cannot be compared in point of favourableness in any objective sense. The consequences flowing from having short hair complained of by Corporal Trindorfer do not, in my opinion, signify less favourable treatment by the RAAF for the reasons given.

Notwithstanding what has gone above, I am sure that it would behove the defence force to maintain its observation of general community grooming and dress standards so that as the general, conservative practices in those matters changes, they might be appropriately reflected in the relevant service instructions.

It follows from what I have said, but I refer to it specifically, that I do not accept Corporal Trindorfer's assertion that there is no practical basis for the prescribed difference between male and female grooming standards: the desirability of making concessions to community standards of dress and grooming distinctions between men and women is a significant practical consideration. The fact that women are doing the same work as he with longer hair than he is permitted to wear is, in the light of these reasons, not significant. It was reasonably decided that there should be a difference in the instructions for men and for women, and it was reasonably decided what that difference should be. That it might properly have been otherwise decided is not to the point.

Corporal Trindorfer's contention that the existence of different grooming instructions for male and female members of the RAAF is discriminatory under the Act, and therefore unlawful, must be rejected. It is differential treatment, but, having regard to the meaning given to discrimination by subsection 5(1) of the Act, it is not discriminatory. It follows that I do not think that the RAAF has acted unlawfully under subsection 14(2) of the Act.

Accordingly, I dismiss the complaint.