Muller v Commonwealth of Australia [1997] HREOCA 29 (29 May 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No H97/66

BETWEEN:

ROGER MULLER

Complainant

AND

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR DECISION OF THE INQUIRY COMMISSIONER

COMMISSIONER JOHN NADER QC

Hearing: Sydney

Date of hearing: 2 April 1997

Date of Decision: 29 May 1997

Appearances: Ms Winters, for the complainant, instructed by Gilbert and Tobin solicitors

Mr Hanks, for the respondent, instructed by Australian Government Solicitors

PRELIMINARY

I have reason to believe that whichever party is aggrieved by this decision will take it to a court for review. I have had to elect whether write a full and reasoned determination, or whether merely to state enough of the reasons for my decision to enable the parties to proceed with the review process without delay and, therefore, to a speedier end to the litigation. In the circumstances, I have chosen the latter course. I will state the matters of principle upon which the decision is founded, but I will not elaborate the various arguments authorities relied upon by counsel. I do not sit as a court, so that my reasons have little if any precedent value for subsequent inquiries. That is particularly so in this case where the central issues are highly contentious.

There is no doubt that the careful and full submissions put by both counsel merit fuller treatment than I am about to give them. Counsel, at my direction, put in an outline of their submissions before the hearing. I show their respective contentions by incorporating those outlines in these reasons by reference, rather than by repeating their submissions in my own words. Those outlines therefore are annexure 1 and 2 to these reasons.

INTRODUCTION

The complainant, Mr Roger Muller, wrote to the Sex Discrimination Commissioner on 12 March 1992. A copy of that letter is annexure 3 hereto. The Sex Discrimination Commissioner summarised what she categorised as the "Background to Complaint" as follows:

"...Mr Muller advised that he was an employee of the Department of Foreign Affairs & Trade and at that time on a posting to the High Commission in London. Mr Muller advised that for the past two years he had been involved in a stable, open cohabiting gay relationship. He advised that he had sought advice from the Department whether such relationships were accepted by them as the basis for provision of married-conditions-of-service, in the same way as that of a heterosexual de facto relationship. Mr Muller advised that the Department response was to the effect gay relationships did not qualify. Mr Muller sought advice on whether there was current Australian legislation to question the Department's practice.

The Commission responded by letter dated 18 May 1992. In that letter the Commission advised Mr Muller it was the Commission's view that the matters which he outlined did not come within the jurisdiction of the Sex Discrimination Act, ("SDA"), but advised that the matters which he raised may come within the jurisdiction of the Human Rights and Equal Opportunity Commission Act 1986 which deals specifically with discrimination in employment on the ground of sexual preference. Mr Muller was advised to provide written advice indicating if he wished to pursue his matter as a formal complaint under that Act. Mr Muller took up that option and proceedings relating to that complaint are currently before the Federal Court.

On 1 November 1996 the Commission received a letter from Gilbert and Tobin Lawyers on behalf of Mr Muller. In that letter Mr Muller referred to his original letter and the Commission's response advising that his matter did not fall within the jurisdiction of the Sex Discrimination Act 1984. Mr Muller submitted that his 1992 complaint under the Sex Discrimination Act 1984 had not been dealt with according to the statutory requirements of the Act in that the Sex Discrimination Commissioner was never notified of the complaint as required by Section 52(1).

By letter dated 4 November 1996 the Commission concurred with Mr Muller's submission that the matter should have been referred to the Commissioner at the time and confirmed that this had now been done. Mr Muller was asked however to provide further submissions on how the alleged discrimination was covered by the Sex Discrimination Act."

BACKGROUND TO COMPLAINT

The complainant's letter of 12 March 1992 is not unambiguously a complaint within the meaning of the Sex Discrimination Act 1984 (Cth) ("the Act"). It is certainly complaining in tone, but is in terms a request for advice and intervention. However, the Commissioner herself agreed that Mr Muller's letter should have been treated as a complaint under the Act. Having regard to the remedial nature of the Act, the term "complaint" should not be too strictly construed. For present purposes I find that the correspondence between the complainant and his legal advisers, on the one hand, and the Sex Discrimination Commissioner, on the other, constitute a complaint by the complainant in the relevant sense.

The letter set out in annexure 3 to this determination sufficiently sets out the factual background to this inquiry.

The issue that presents itself is embodied in the question:

Was the non-payment of allowances to Mr Muller, that would have been payable to him if he had been relevantly accompanied by a spouse, de iure or de facto, unlawful by virtue of the Act?

Of course, this question will resolve itself into a number of subsidiary questions.

THE RELEVANT LAW

Section 14 of the Act makes it unlawful to discriminate against a person on the ground of the person's sex or marital status in the terms or conditions that the employer affords the employee, or by subjecting the employee to any other detriment.

Discrimination on the ground of sex is defined by section 5 of the Act. The relevant parts of section 5 are as follows:

"(1)...a person (...referred to as the "discriminator") discriminates against another person (...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) ...

(c) ...,

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."

Discrimination on the ground of marital status is defined by section 6 of the Act. The relevant parts are as follows:

"(1)...a person (...referred to as the "discriminator")discriminates against another person (...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 ...

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."

"marital status", by section 4 of the Act, means the status 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."

APPLICATION OF THE LAW TO THE FACTS

Applying the provisions of section 5 of the Act, the respondent would have discriminated against the complainant on the ground of his sex if, by reason of his sex, that is, of his being a male person, the respondent treated him less favourably than, in the same or not materially different circumstances, it treated or would have treated a person of the opposite sex, that is to say, a woman.

One of the criteria necessary to render conduct discriminatory as defined is that less favourable treatment was accorded to the complainant by reason of the sex of the complainant: that is, by reason of the fact that he was a man rather than a woman. Even if there had existed less favourable treatment in the circumstances specified in the concluding words of subsection 5(1), it would not have amounted to discrimination on the ground of the sex of the complainant unless it occurred by reason of the sex of the complainant.

At the material times (from April 1990 to May 1994) an "accompanied officer" was entitled to a higher rate of overseas living allowance than a person who was not an "accompanied officer". By clause 3.2.1 of the Public Service Determination (the "Determination") made under section 82D of the Public Service Act 1992 (Cth), being the applicable instrument at the material times, "accompanied officer" was an officer posted for not less than 12 months and whose spouse resides with the officer at the officer's locality of posting. By clause 1.2.1(1) of the Determination the ordinary meaning of the term "spouse" is extended to include a person who is living with the officer on a bona fide domestic basis although not legally married to the officer. The word "spouse" in the context of the determination cannot comprehend a person who is not of the opposite sex to that of the officer. Although it had been extended to include so called "de facto" relationships, it did not at the material times include relationships between members of the same sex, whether they were between male or female persons.

It is clear that the complainant's non-receipt of the Overseas Living Allowance at the higher rate was not "by reason of the sex of the complaint", but by reason of the fact that he was not an "accompanied officer" as defined: in particular because he did not have residing with him, at his locality of posting, a spouse. If he had been a female officer who did not, for the same reason, qualify as an "accompanied officer", the result would have been identical for the same reason. His sex was immaterial to the outcome.

It has to be noticed that it is not enough to constitute discrimination within the meaning of subsection 5(1) that "the discriminator treats the aggrieved person less favourably than, in circumstances that the same or are not materially different, the discriminator treats or would treat a person of the opposite sex." For treatment to amount to discrimination it must occur "by reason of the sex of the aggrieved person."

But here the sex of the complainant was not the basis of discrimination. If Mr Muller and his companion had been female he would have been treated exactly as he was in fact treated. Neither male officers nor female officers who were not "accompanied", as defined, were eligible for payment of overseas living allowance at the rate to which accompanied officers, male or female, were entitled.

Counsel, as will be observed from their submissions, put a great deal of their augmentative energy into the application of the phrase in subsection 5(1), "in circumstances that are the same or are not materially different," from the complainant's circumstances.

If it were not a requirement that the discrimination complained of have the sex of the aggrieved person as its raison d'etre, it would still be necessary for the complainant to show that, in fact, the complainant was treated less favourably than, in circumstances that were the same or were not materially different, the respondent treated or would have treated a person of the opposite sex, in this case, a woman: see the concluding words of subsection 5(1).

Put briefly, it was argued on Mr Muller's behalf that the appropriate comparator, for the purposes of the circumstances referred to in that provision, is a woman living, as Mr Muller was, with a man. The respondent contended that the comparator ought to be a woman living with a woman. I think that the respondent is correct. Of course the comparator is a woman. The contentious question is what the relevant circumstances are. It seems to me that the relevant circumstances are Mr Muller living with a person of the same sex as himself. A woman in the same circumstances as Mr Muller would have been a woman living with a person of the same sex as herself, namely, a woman.

It is enough to say that there is no evidence of any woman employed by the respondent at the material times living with a woman, and, a fortiori, there is no evidence that the complainant was treated less favourably than any such woman was in fact treated. Neither is there any evidence that if there had been such a woman, the respondent treated the complainant less favourably than it would have treated that woman.

Therefore the complainant's case, insofar as it alleges discrimination on the ground of his sex, must fail.

For reasons analogous to those stated with respect section 5 of the Act, I am of the opinion that Mr Muller was not discriminated against within the meaning of section 6 of the Act on the ground of his marital status.

Because the reasoning is virtually the same, mutatis mutandis, I propose to do no more than give a brief outline of my reasons for rejecting the complaint inasmuch as it is based on alleged discrimination on the ground of marital status.

Here too it is an essential element of discrimination as defined by section 6 of the Act that the alleged less favourable treatment must have been "by reason of" the relevant characteristic of the complainant, namely, by reason of his marital status: that is, by reason of his being:

(a) single, or

(b) married, or

(c) married but living separately and apart from his spouse, or

(d) divorced or widowed, or

(e) the de facto spouse of another person.

It was for none of these reasons [each one being a marital status as defined, and collectively exhausting the definition of marital status] that the complainant was treated less favourably in the terms of the Act. It was quite regardless of any such status that he was not paid the higher rate of allowance. He was not paid the higher rate because he was not an accompanied officer as relevantly defined, not because her was single, or married, or married but living separately and apart from his spouse, or because he was divorced or widowed, or because he was the de facto spouse of another person. It may be noted that the expression "de facto spouse" is defined by section 4 of the Act as ... "a person of the opposite sex to the" other person.

It is therefore not necessary to consider the effect of the concluding words of subsection 6(1). But, I would make the same comments about them, and reach the same conclusions concerning them, as I have made and reached about the concluding words of subsection 5(1).

CONCLUSION

It follows that in my opinion, the complaint should be dismissed.

Dated this 29th day of May 1997.

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The Honourable John Nader QC

Hearing Commissioner