Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 1524 (4 November 1999)

Last Updated: 4 November 1999

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor [1999] FCA 1524

ADMINISTRATIVE LAW - Judicial review - Decision of administrative character made under an enactment - Meaning of "decision" - Whether finding and recommendation by Human Rights and Equal Opportunity Commission constitute a reviewable "decision" - Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

HUMAN RIGHTS - Discrimination in employment - Distinction, exclusion or preference not discriminatory if based on the inherent requirements of the particular job - Age requirement for appointment to Army Specialist Service Officer Pilot Scheme - Whether single judge erred in finding that requirement not discrimination on the ground of age - Whether single judge erred in finding that requirement not based on the inherent requirements of the job of a military line pilot

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) subs 3(1), ss 31, 32, 35

Human Rights and Equal Opportunity Commission Bill 1985 (Cth) outline, clause 3

Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) reg 4

Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 applied

Edelsten v Health Insurance Commission (1990) 27 FCR 56 considered

Western Airlines, Inc v Criswell [1985] USSC 161; (1984) 472 US 400 considered

COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ANOR

NG 1194 OF 1998

JUDGES: BLACK CJ, TAMBERLIN & KATZ JJ

DATE: 4 NOVEMBER 1999

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1194 OF 1998

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

BETWEEN:	COMMONWEALTH OF AUSTRALIA Appellant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent ROBERT BRADLEY Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 1194 OF 1998

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

BETWEEN:	COMMONWEALTH OF AUSTRALIA Appellant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent ROBERT BRADLEY Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

BLACK CJ

1 This is an appeal against a decision of Wilcox J, dismissing an application for judicial review of a finding by the Human Rights and Equal Opportunity Commission ("Commission") that the Australian Defence Force's ("ADF") denial of employment to the second respondent, Mr Bradley, constituted "discrimination" within the meaning of subs 3(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("Act"). The Commission's finding was made following its investigation into a complaint by Mr Bradley that the ADF had refused to consider him for appointment to its Specialist Service Officer Pilot Scheme ("Pilot Scheme"), on the ground that he was not aged between 19 and 28 years of age. In addition to finding that the refusal amounted to discrimination, the Commission recommended that the Commonwealth pay Mr Bradley $5,000 as compensation for the loss suffered by Mr Bradley as a result of not having been considered for the Pilot Scheme.

2 The investigation into Mr Bradley's complaint was undertaken by the Commission in pursuance of its statutory obligation under par 32(1)(b) of the Act, and in accordance with the procedural rules governing such investigations contained in ss 20 to 27 of the Act (applicable by s 33). After completing its investigation, the Commission was required by s 35 of the Act to give written notice to the Commonwealth of its finding of discrimination and the reasons for that finding, and to provide a written report to the Minister in respect of the investigation and its results. The only statutory consequence of the Commission's decision was a requirement that the Minister lay the Commission's report before each House of Parliament within 15 sitting days of that House after receiving the report (s 46).

3 The main provisions of the Act governing the investigative functions of the Commission following a complaint of discrimination are contained in s 31, s 32 and s 35 of the Act. Those provisions (relevantly) provide as follows.

"31. The following functions are hereby conferred on the Commission:

(b) to inquire into any act or practice that may constitute discrimination and:

...

(ii) where the Commission is of the opinion that the act or practice constitutes discrimination ... to report to the Minister in relation to the inquiry...

32. (1) Subject to subsections (2) and (3), the Commission shall perform the functions referred to in paragraph 31 (b) when:

(a) the Commission is requested to do so by the Minister;

(b) a complaint is made in writing to the Commission alleging that an act or practice constitutes discrimination; or

(c) it appears to the Commission to be desirable to do so.

(2) The Commission shall not inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, shall not continue to inquire into the act or practice, if the Commission is satisfied that the subject matter of the complaint is dealt with under a prescribed enactment or a prescribed State enactment.

(3) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

...

(c) in a case where a complaint has been made to the Commission in relation to the act or practice:

...

(iii) where some other remedy has been sought in relation to the subject matter of the complaint - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with;

(iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the complainant;

(v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or

(vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

35. (2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:

(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;

(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;

(c) may include in the notice any recommendation by the Commission for either or both of the following:

(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;

(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);

(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and

(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:

(i) where the complaint was made by a person affected by the act or practice - shall serve a copy of that report on the complainant; or

(ii) if the complaint was made by another person - may serve a copy of that report on the complainant."

4 After it received the notice of discrimination served by the Commission under par 35(2)(a), the Commonwealth applied for judicial review of the Commission's findings on the ground that they disclosed certain errors of law. That application was heard by Wilcox J, who concluded that none of the errors had been demonstrated. The source of his Honour's jurisdiction to review the Commission's findings was identified in his reasons for judgment as the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). During the hearing of the appeal, however, a question arose as to whether the ADJR Act does in fact confer jurisdiction on this Court to review a finding of discrimination by the Commission under the Act.

The Court's jurisdiction to review the Commission's decision

5 The appellant contends that the Court has jurisdiction to hear and determine the decision of the Commission under s 5 of the ADJR Act or, in the alternative, under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act").

6 Section 5 of the ADJR Act confers jurisdiction on the Federal Court to review "a decision to which [the] Act applies" on any one or more of the grounds specified in that section upon application by a person aggrieved by the decision. A "decision to which [the] Act applies" is defined by s 3 of that Act to mean:

"[A] decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment other than a decision by the Governor-General, or a decision included in any of the classes of decisions set out in Schedule 1..."

7 The question here is whether there was a reviewable "decision" within the meaning of s 3. During the hearing the appellant contended that there was, and relied on the written submissions prepared by the Commission in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (Einfeld J, 11 May 1999, unreported) ("Manning's case"), where the same question arose. Those submissions, which were made at the request of Einfeld J, supported the contention that a notice of a finding of discrimination served by the Commission under par 35(2)(a) of the Act was, or evidenced, a "decision" within the meaning of the ADJR Act, as that concept was explained by Mason CJ in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 ("Bond"). In that case Mason CJ, with whom Brennan and Deane JJ agreed, said (at 336-338):

"The relevant policy considerations [affecting the interpretation of "decision" under the ADJR Act] are competing ... [but] do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. The answer is that a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character...

If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character...

The interpretation of `decision' which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss... My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that `it may well be that the word "decision" means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words `of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination doe not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made." [Emphasis added, footnotes omitted.]

8 The Court in Manning's case accepted the Commission's submission and held that notice of a finding of discrimination served under par 35(2)(a) of the Act was, or evidenced, a "decision" for the purposes of the ADJR Act.

9 In my view, there was a "decision" within the meaning of the ADJR Act in the present case, and Wilcox J did have jurisdiction under s 5 of the ADJR Act to hear and determine the application for judicial review. It is, of course, important to identify with precision what the reviewable decision is. Here the reviewable decision is the finding by the Commission that the Commonwealth's conduct amounted to "discrimination" within the meaning of subs 3(1) of the Act, and its related recommendation that Mr Bradley be compensated by the Commonwealth for the loss he suffered as a result of that discrimination. It is not, as the appellant's primary argument would suggest, the written notice of that finding issued by the Commission under par 35(2)(a). Whilst such notice may be said to "evidence" the Commission's decision, I do not consider that it can properly be characterised as a "decision" in itself for the purposes of the ADJR Act. The same reasoning applies in respect of any report prepared by the Commission for the Minister about its investigation into Mr Bradley's complaint under par 35(2)(d) of the Act. Moreover, such a report would not be made a "decision" by the operation of subs 3(3) of the ADJR Act, as the Act does not provide for the making of that report "before a decision is made in the exercise of a power under that enactment or under another law" as required by subs 3(3). Indeed, in the present case the making of the decision preceded the making of the report, rather than the other way around which is the situation envisaged by subs 3(3).

10 The Commission's actual finding of discrimination, however, (and related recommendation regarding the payment of compensation) does satisfy the criteria of a reviewable "decision" explained by Mason CJ in Bond; it is substantive rather than procedural, and is final and determinative, in a practical sense at least, of the issue raised by Mr Bradley's complaint. It was the final conclusion at the last stage of the administrative procedure provided by the Act for resolving that complaint, and took immediate effect upon its communication to the Commonwealth or the Minister (see Kelson v Forward (1995) 60 FCR 395 ("Kelson"); Harris v Bryce [1993] FCA 115; (1993) 41 FCR 388; Edelsten v Health Insurance Commission (1990) 27 FCR 56 ("Edelsten"); see Lloyd v Marine Council (Federal Department of Transport) & Ors (1987-8) 14 ALD 521 ("Lloyd")). It is likely to be the only resolution of such complaint by a statutory body (see s 32 of the Act and the corresponding provisions of the Explanatory Memorandum), and must be assumed to have raised a legitimate expectation in the mind of Mr Bradley, at least, that the ADF's employment criteria would be reviewed, and that he would be compensated for his loss in the manner and to the extent recommended by the Commission (see Edelsten). (Counsel for the Commonwealth also stated during the hearing of the appeal that the ADF did not regard itself, from a policy point of view, as permitted simply to ignore the Commission's findings.) The fact that the decision is not, as a strict matter of law, binding on the parties is not in my view decisive in this context. (Kelson. See further, in respect of a non-binding determination of the Commission under s 81 of the Sex Discrimination Act 1984 (Cth): Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Ors [1991] FCA 566; (1991) 32 FCR 468 (Davies J); Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor (1997) 150 ALR 1 (Full Federal Court). See also, in respect of decisions of the Commission under the Act: Secretary, Department of Defence v Human Rights and Equal Opportunity Commission & Ors (1997) 149 ALR 309 (Branson J); Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Anor (Moore J, 27 February 1998, unreported).) For these reasons, and despite the language used in par 31(b)(ii) of the Act, I do not regard the Commission's finding and related recommendation as "a mere expression of opinion or a statement which can of itself have no effect on a person" (Ross v Costigan (1982) 59 FLR 184 at 197 per Ellicot J, cited with approval by Mason CJ in Bond at 338).

11 The conclusion that there is a reviewable decision in the present case is supported by the reasoning of Finn J in Kelson, and by the reasoning of the Full Federal Court in Edelsten. The first of the decisions in Edelsten was a decision by a delegate of the Health Insurance Commission (Dr Nearhos) to refer the question of whether Dr Edelsten may have rendered excessive medical services to a delegate of the Minister (Dr Dash). A majority of the Full Court, relying on Bond, held that this decision was not a reviewable decision on the following grounds (at 68-69 per Northrop and Lockhart JJ, in their joint judgment):

"No provision of any of the relevant statutes or regulations was pointed to by counsel as imposing any duty on the Minister or his delegate to do anything about the reference to him or his delegate by Dr Nearhos pursuant to reg 3(2)(b), nor can we find any. At most, the reference by Dr Nearhos to the Minister's delegate obliged [him] to consider it and make a decision as to what he should do about it. The Minister has power (implied from s 82) to refer to the Committee `any matter ... that is relevant to the operation or administration of" the Health Insurance Act... The reference made by Dr Nearhos to Dr Dash ... plainly may be the subject of the Minister's reference to the Committee pursuant to s 82.

No rights of Dr Edelsten are affected by Dr Nearhos's decision, nor does any `legitimate expectation' arise from it. During the course of the investigations being made by Dr Nearhos, Dr Edelsten spent much time and energy in supplying information to Dr Nearhos and other members of the Commission. This action by Dr Edelsten can be understood, but that action does not `constitute rights of Dr Edelsten' in any relevant sense. Nor does that action form the basis for any `legitimate expectation'. Dr Edelsten was not required by law to take that action or to give any information or explanation. The legal `rights' of Dr Edelsten were not affected by what the officers did. Dr Edelsten could have refused to co-operate and in so doing would not have committed any offence."

12 The situation in the present case is very different. Here the Minister was required by law to act upon the Commission's finding of discrimination (see s 46), and the parties were required to cooperate with the Commission by giving any information and producing any documents required by it (see s 21 and s 22, which apply by reason of s 33). The requirements were real and enforceable. A failure or refusal to do so could have attracted the penalties provided for by s 23 (and possibly s 26) of the Act. Furthermore, the Commission's obligation, under s 27 of the Act, to give the parties a reasonable opportunity to make written submissions to the Commission in relation to the allegation of discrimination, and to appear before it in person or by a representative to make oral submissions, created rights for both parties and formed the basis for "legitimate expectations" of the type referred to by the Full Court in Edelsten.

13 The second of the decisions considered in Edelsten was the decision of the Minister's delegate (Dr Dash) to refer the question whether Dr Edelsten had rendered excessive medical services to the Committee for inquiry, and for the submission of a report and recommendations by the Commission to the Minister. A majority of the Full Court found that this decision also was not reviewable under the ADJR Act. On this point Northrop and Lockhart JJ said (in their joint judgment, at 69):

"For similar reasons [as those extracted above], neither did the subsequent decision of Dr Dash to refer, as delegate of the Minister, the matter to the Committee pursuant to s 82 affect any rights of Dr Edelsten or give rise to any legitimate expectation. Indeed, even when the Minister or his delegate refers a matter to the Committee pursuant to s 82, the Committee, though bound by s 94 to consider the matter, may decide no more than that Dr Edelsten may have rendered excessive services: s 94(c). But the Committee is not empowered to decide at that preliminary stage whether Dr Edelsten has or has not rendered excessive services, simply whether he may have rendered excessive services. It is only when the Committee reaches an affirmative view on that question that it is required to conduct a hearing into the matter... The machinery of the Health Insurance Act then comes into operation, requiring the Committee to give notice of the hearing to Dr Edelsten and particulars of the matter to which the hearing relates (s 95); empowering it to issue summonses to Dr Edelsten and others for the production of documents and the giving of evidence at the hearing; and giving Dr Edelsten the right to legal representation at the hearing which must be conducted in private. Section s 94 to 105 of the Health Insurance Act contain provisions commonly found with respect to administrative inquiries, conferring powers on the inquisitor and rights and duties on the person whose conduct is the subject of the inquiry.

There is no doubt that the rules of natural justice apply to the hearing before the Committee. Dr Edelsten must be given full opportunity to answer all of the particular matters set out in the notice of hearing under s 95(2) if a hearing in fact takes place. Whether there will be such a hearing will depend on whether the Committee reaches a preliminary conclusion that Dr Edelsten may have rendered excessive services.

The making of an adverse report and recommendations by the Committee to the Minister does not itself in law affect Dr Edelsten's rights, though it is the genesis of a series of steps which ultimately may seriously affect his rights. The Minister must first consider the report and recommendations and may make a determination in writing in accordance with the recommendations... Dr Edelsten then has a right to request a review of the determination or to apply for judicial review... It is only when the processes of review by a Tribunal under the Act are completed that the Minister's determination takes effect. The Minister is then required, by s 106AA to publish the requisite particulars of the determination and certain other matters and to cause a copy of the relevant statement to be laid before each House of the Parliament."

14 Once more, the circumstances of the present case are very different. Here the Commission was empowered to make a determination as to whether the act or practice in question constituted "discrimination" and, indeed, could only make that determination after conducting a full inquiry into the matter. The machinery of the Act was by that stage already in operation, conferring similar rights and obligations upon the parties and the Commission as are conferred in the context of a Committee hearing under the Health Insurance Act. Just as the rules of natural justice were considered by the Full Court in Edelsten to apply to such a hearing, so too I am of the view that the principles of natural justice would apply to a hearing by the Commission under par 31(b)(ii). In addition, just as the Full Court in Edelsten was of the view that a determination by the Minister under the Health Insurance Act would take effect upon the exhaustion of that Act's review provisions, so too here the finding of discrimination by the Commission took effect upon the exhaustion (subject to the operation of subs 35(2) and s 46) of the Act's machinery for the resolution of Mr Bradley's complaint. The requirement that the details of that finding then be laid before each House of the Parliament by the Minister confirms, as it appears to have done for the Full Court in Edelsten with respect to the Committee's post-hearing decision, the finality of that finding.

15 For these reasons I consider that the decision by the Commission that the conduct of the ADF amounted to "discrimination" and that Mr Bradley should be compensated for that discrimination, is reviewable by the Court under s 5 of the ADJR Act. I now turn to consider the substantive appeal.

The Commonwealth's appeal against the decision of Wilcox J

16 The Commission found that the ADF's refusal to consider Mr Bradley for entry to the Pilot Scheme on the ground that he was not aged between 19 and 28 years of age constituted "discrimination" within the meaning of subs 3(1) of the Act. Subsection 3(1) provides:

"`discrimination' means:

...

(b) any other distinction, exclusion or preference that:

...

(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act [including, by regulation 4 of the Human Rights and Equal Opportunity Commission Regulations 1989 (Cth), a distinction, exclusion or preference on the ground of age];

but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job..."

17 It was accepted by the parties (before both the Commission and Wilcox J) that the ADF's requirement that entrants to the Pilot Scheme be aged between 19 and 28 years of age at the date of their appointment amounted to "a distinction, exclusion or preference on the ground of age" within the meaning of par (b)(ii) of the definition of "discrimination". The issue was whether that requirement was "in respect of a particular job based on the inherent requirements of the job" within the meaning of par (c). Before considering this issue it will be necessary to say something about the facts as found by the Commission.

18 On 22 April 1993 Mr Bradley, who was then 37 years of age, attended an Army recruitment unit in Townsville to inquire about joining the Army as a helicopter pilot. He was there interviewed by Corporal Keith Chambers, who advised Mr Bradley that helicopter pilots were recruited by the Army into its Pilot Scheme, and that eligibility for recruitment to that Scheme was restricted to persons aged between 19 and 28 years of age at the date of their appointment ("the 19-28 Rule"). At or around the time of that interview Mr Bradley was given the following information brochure explaining the Pilot Scheme.

"SPECIALIST SERVICE OFFICER

ARMY PILOT

The Specialist Service Officer (SSO) Pilot Scheme is a scheme to produce sufficient pilots on short service commissions to operate the Army's aircraft. The scheme is open to civilian and Service applicants.

QUALIFICATIONS

Applicants are not required to hold any professional qualifications and prior flying experience is not necessary. Successful applicants will be taught to fly and, if successful, will be employed for the remainder of their appointment flying Army aircraft.

The quality of training and experience gained in demanding flying and the number of flying hours accrued on at least one Army aircraft type is sufficient to qualify for a civil commercial pilot licence and with further study, a senior commercial pilot licence.

ELIGIBILITY

To be eligible for appointment applicants must:

a. be an Australian citizen or be eligible to become one;

b. have a minimum four subject passes in Year 12, or equivalent, which include English, mathematics and physics (physics pass may be at Year 11 level);

c. meet the Army Aviation medical and dental requirements;

d. meet the current security clearance and civil check requirements;

e. be aged between 19 and under 28 on the date of appointment; and

f. be assessed as suitable by a Selection Board.

APPOINTMENT

Successful applicants will be appointed for an initial period of six years with the first 12 months being a probationary period. Selected pilots may be offered a further five years appointment at the completion of the initial appointment period.

Whilst undergoing training SSOs will hold the rank of Officer Cadet. Upon graduation as a pilot you will be commissioned as Lieutenant in the Australian Army." [Emphasis added.]

19 Corporal Chambers also advised Mr Bradley that in certain cases the 19-28 Rule could be waived, and suggested that Mr Bradley contact Captain Dan Cullen to discuss his position further. Captain Cullen was said to have confirmed Corporal Chambers' advice in respect of the possibility of a waiver, but was unable to confirm whether one would be offered to Mr Bradley.

20 On 6 May 1993, Mr Bradley contacted Corporal Chambers to explain his position. Corporal Chambers agreed to refer Mr Bradley's case to the officer-in-charge of aircrew arrangements, Major Power. Mr Bradley was subsequently advised by a representative of Major Power that he was ineligible for appointment to the Pilot Scheme on the ground that he was not aged between 19 and 28 years of age, and that no waiver of that requirement would be offered to him. Reference was made by Major Power's representative to a comment by the Major about the Army's ability to be selective due to the availability of suitably aged applicants.

21 On 11 May 1993, Mr Bradley made a formal complaint to the Commission, the details of which were subsequently notified to the ADF. By letter to the Commission of 10 November 1993, Wing Commander R J Johns confirmed the 19-28 Rule and the possibility, in certain cases, of having that Rule waived. In respect of such possibility the Wing Commander said:

"Waiver approval may be sought for an applicant who does not meet the selection criteria (whether through age, medical fitness, etc) but who is considered to possess special skills or qualifications which may warrant waiving one or more of the initial criteria. An applicant has no entitlement to have a waiver request processed. That is a decision made by recruiting staff on the basis of vacancies and suitable applicants. Should Army be unable to fill vacant positions with applicants who meet the initial selection criteria, then the recruiting staff may seek approval from Army Office in Canberra to grant a waiver."

22 On 31 May 1994, following an unsuccessful attempt at conciliating Mr Bradley's complaint, Wing Commander Johns wrote another letter to the Commission providing "a detailed explanation of the inherent requirements of employment as a military pilot and the relationship of those requirements to the age of applicants." The relevant parts of the letter are in these terms.

"Inherent Requirements of Military Flying

2. The specific purpose of the SSO pilot entry scheme, for which Mr Bradley made application, is to bring in to the Army and train personnel for employment as line pilots in one of the Aviation Regiments. The Army has no need to recruit pilots specifically for employment as flying instructors, as there is an adequate pool of pilots who have gained experience in the Regiments from which to select flying instructors at an appropriate time in their flying careers.

3. As Lieutenant Colonel Brock and I tried to explain during the course of the [conciliation] conference, military flying cannot be related to any form of civilian flying, even with the relatively adventurous type of flying that Mr Bradley has been performing. With few exceptions, military pilots are required to undertake tactical flying under combat conditions. The effect of this is that the inherent risks in the type of flying undertaken by, say, agricultural pilots are compounded several fold by the following factors involved in flying military helicopters:

a. the aircraft is likely to be under direct fire from enemy forces;

b. missions are carried out in relatively high performance aircraft operating close to the ground, in adverse weather and environmental conditions at any hour of day or night;

c. the mission is likely to involve a number of aircraft operating together in close proximity;

d. the pilot is required to maintain an awareness and appreciation of the tactical situation affecting his or her own and other aircraft;

e. the pilot is operating in a multi-crew environment;

f. the aircraft is likely to be carrying passengers and/or dangerous cargo; and

g. the pilot can be required to live in and operate from arduous field conditions.

4. This type of flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved. The training involved to enable an entrant to reach the standard required for a miliary pilot, and an Army officer in the general sense, is long and intensive in both the physical and mental demands.

Relationship of Inherent Requirements to Age

5. Combat flying has been described as a young person's game. As can be seen by the description of the inherent requirements, the stresses, both physical and mental, on a combat pilot are considerable. The following factors, gained through medical data and experience in the ADF and a number of overseas military organisations, establish a direct correlation between the age of pilots and their ability to safely and effectively perform in a combat flying environment:

a. Medical Fitness. A considerable bank of data is available to establish that, on a statistical basis, a high percentage of persons in the 35 year plus age bracket develop one or more medical conditions which disqualify them or severely restrict their capacity to maintain a medical flying category suitable to military aviation (common are eyesight deterioration, hearing loss, degenerative back problems, particularly in rotary wing pilots, cardiovascular disease and hypertension);

b. Physical Performance. Medical data shows that, for persons in excess of 35 years of age, there is a marked deterioration in reaction time and the capacity to withstand and recover from the stresses involved in military flying;

c. Training Failures. Experience in Australian and overseas armed forces has shown that mature aged qualified pilots encounter a high incidence of difficulty in `unlearning' acquired habits and skills to adapt to the unique requirements of military aviation. Also the physical, psychological and social stresses encountered during training are such that an older entrant would be a very high risk of failure;

d. Peer Group Integration. The average age of line pilots in the Army's two Aviation Regiments is around 23 years and the actual deviation from that mean is small. Consequently, someone who is almost a generation older would inevitably experience problems in integrating with that group where teamwork, mutual trust and acceptance can literally be a matter of life or death; and

e. Return on Investment. Even if a person of Mr Bradley's age could meet all requirements for entry as a pilot, and successfully complete the training, the likelihood of him developing some disqualifying medical condition in the near future is very high, with the consequential effect that the Army would not recoup sufficient service from him to justify the very high cost of training.

6. The ADF, like other defence forces, does have personnel in Mr Bradley's age bracket who are employed as pilots, some of them flying high performance aircraft. But, without exception, such personnel are in managerial and supervisory positions. While they maintain currency on a particular aircraft type in order to carry out their supervisory and evaluation responsibilities, their role is not that of a line pilot whose prime task is to fly combat missions.

7. Military aviation is a hazardous and stressful occupation, with no comparable equivalent in civil aviation. Considerations of operational effectiveness and the duty of care to all personnel involved in military aviation, including non-aircrew personnel who are required to fly as passengers in military aircraft, are paramount. Such considerations, in the fact of specialist medical advice, coupled with the requirement to cost effectively employ public funds allocated for Defence, make the enlistment of `older' personnel for pilot training an unacceptable risk."

23 After reaching a preliminary view that the ADF's refusal to consider Mr Bradley for the Pilot Scheme constituted "discrimination", the Commission conducted an inquiry into that issue on 3 and 4 February 1997. The result of that inquiry was a decision, issued by the Commission on 5 March 1997, that the 19-28 Rule was not based on the inherent requirements of the job of a military line pilot within the meaning of par (c) of the definition of "discrimination", with the result that such Rule was discriminatory. The essential parts of the Commission's reasons for this decision were as follows.

"I must consider ... whether the requirement that the applicant be aged between 19 and 28 years of age was an inherent requirement of the job.

...

The respondent argued that the complainant, being aged 37 at the time of making his application to join the pilot program, was unable to fulfil the inherent requirements of the position.

...

I am satisfied from the submissions put by the respondent and the oral evidence adduced at the hearing that the respondent included the stipulated age range in the application criteria as part of a genuine attempt to ensure that applicant pilots would be physiologically and psychologically equipped to complete their training successfully and that they would do so at an age where the respondent would be able to recoup its training expenditure. However, I am not satisfied that the exclusion of persons such as the complainant from employment as military line pilots based only on the fact that they fall outside the age range of 19 to 28 years is non-discriminatory on the basis that the age-bracket is an inherent requirement of the job of a military line pilot.

Being within the stipulated age bracket is but one of several criteria stipulated by the Army for eligibility for the appointment. The other criteria could most probably be defended as inherent requirements...

The concerns raised by the Army to justify the age criterion are arguably met by these other selection criteria, in particular the medical criterion. For this reason the age criterion is not necessary to achieve the Army's purpose in imposing the criterion. In its defence of the age criterion the respondent stated that the nature of military flying requires a high level of physical and medical fitness... There is no direct correlation between a person's age and medical fitness. In any event, the requirement that applicants meet the Army Aviation medical and dental requirements would achieve the maintenance of the Army's medical and fitness standards directly, more assuredly and more appropriately than an arbitrary age requirement.

I am also not satisfied of the relevance of age to the other factors raised by the respondent. It argued that these factors established a direct correlation between the age of the pilots and their ability to perform safely and effectively in a combat flying environment. As in relation to the medical fitness requirement these other criteria are better assessed directly rather than indirectly through the arbitrary use of age as a proxy. As with medical fitness, the other criteria need to be assessed individually for all applicants...

I also consider that the respondent's Assessment Board would be able to assess an applicant's suitability for `unlearning' acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, whilst these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicant's age and the ability to meet these criteria...

The respondent also argued that the age criterion is necessary to ensure the respondent's return on investment... While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position...

I do accept that in some circumstances it may be appropriate to use age as a proxy. For example, it would be futile to require the respondent to assess persons below fifteen years or over seventy years for acceptance to the SSO scheme. However, it is only acceptable to use an age proxy where there is no, or so little, possibility of someone in that age group being able to comply with the inherent requirements of the job that to require the respondent to expend resources on assessing the applicant through the selection process would be unreasonable...

I am not satisfied that the exclusion of persons, such as the complainant, outside the age range of 19 to 28 years from employment as military line pilots is based on the inherent requirements of the job of a military line pilot. Accordingly, I find that the acts and practices complained of by the complainant constitute discrimination in employment based on age."

24 On 6 April 1998, the Commonwealth made an application for judicial review of the Commission's decision, alleging five errors of law. Wilcox J concluded that none of the alleged errors of law were made out and accordingly dismissed the Commonwealth's application (the reasons for his Honour's decision are reported as Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Anor (1998) 158 ALR 468). The Commonwealth has now appealed on the following six grounds.

1. That his Honour erred in holding that the Commission had correctly interpreted the phrase "inherent requirements of the job".

2. That his Honour erred in finding that "based on" requires more than a logical link and that the correlation between the distinction, exclusion or preference and the inherent requirements of a particular job must be, at least, close.

3. That his Honour erred in finding that it was not appropriate to reason that, because extreme fitness is an inherent requirement of the job of a military line pilot, and because younger pilots tend to be more fit than older pilots, therefore the 19-28 Rule is "based on" the requirement of fitness.

4. That his Honour erred in finding that the evidence before the Commission did not establish a sufficiently tight correlation between fitness to be a military line pilot on the one hand and age on the other.

5. That his Honour erred in focusing his attention on the issue of medical fitness and, in particular, on medical fitness at the time a candidate applies for appointment as a military line pilot, to the exclusion of other relevant evidence regarding the capacity of older candidates to adjust to military life and to `unlearn' bad habits acquired during their civilian flying careers.

6. That his Honour erred in failing to take into account a relevant consideration; namely, the inherent requirement for an SSO pilot to continue to be medically fit for the whole of the proposed six-year appointment.

The inherent requirements of the particular job

25 The appellant submits, as it did before Wilcox J, that the Commission erred in law by adopting a narrow interpretation of the phrase "inherent requirements" in reliance on the majority decision of the Full Court of the Industrial Relations Court in Christie v Qantas Airways Ltd (1996) 138 ALR 19. In support of this submission it relies on the decision of the High Court on appeal (Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 ("Qantas v Christie")), in which the Full Court's decision was set aside and the narrow construction of "inherent requirements" expressly disapproved.

26 The Commission's adoption of the now disapproved construction of "inherent requirements" is argued, by the appellant, to be reflected in what it describes as the Commission's exclusive focus on the requirement that military pilots possess a high level of physical and mental fitness to the exclusion of certain other so-called "employment operational" requirements. The employment operational factors that the appellant says the Commission failed to regard as "inherent requirements" for the purpose of par (c) are:

* An ability to be properly trained for the job of a military line pilot (including an ability to `unlearn' habits and skills acquired in civilian life, and the ability to adapt to the environment of military aviation).

* An ability to integrate into the ADF's Aviation Regiments.

* An ability to maintain a high level of medical fitness for the duration of the six-year period of appointment.

These factors appear to have been taken from the letter of Wing Commander Johns to the Commission of 31 May 1994 (extracted at par 22 above).

27 Assuming the correctness of the appellant's submission that each of these factors is an inherent requirement of the job of a trainee military line pilot, the question is whether Wilcox J was in error in finding that the Commission treated them as such, as the appellant contends. His Honour's finding in this regard was expressed (at 480) as follows.

"Although Commissioner Sidoti did not have the benefit of the High Court Christie decision when he determined Mr Bradley's complaint, he did not, I think, interpret the phrase `inherent requirements of the job' inconsistently with the view of the High Court majority. Specifically, he took account of employment operational factors. He referred to the need for SSO pilots to possess `a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved'. The reason why he determined the complaint adversely to the Deparment of Defence was that he saw `no direct correlation between a person's age and medical fitness'... Inferentially, he was saying the age distinction was not based on the inherent requirements (fitness etc) of the particular job."

28 I agree with Wilcox J that the Commission did not err in the manner contended by the appellant. In particular, I do not think it failed to treat the three employment operational factors identified by the appellant as inherent requirements of the job of a trainee military line pilot for the purpose of par (c). Moreover, it is clear in my view that any focus of the Commission on the physical and mental demands of that job merely reflects the terms in which the evidence in support of the appellant's case was presented to the Commission - particularly the evidence of Wing Commander Johns, which was fundamental to the Commission's understanding of the appellant's case.

29 In my view, it is clear from a fair reading of the Commission's reasons for decision as a whole that the Commission assumed each of the three operational factors identified by the appellant (regarding the ability to be properly trained, to integrate and to maintain a high level of medical fitness) to be "inherent requirements" of the job of a trainee military line pilot under par (c), for the purpose of determining what it saw as the real issue; namely, whether there existed a direct correlation between any of those requirements and the 19-28 Rule sufficient to make the Rule non-discriminatory. That assumption is apparent from the following extracts from the Commission's reasons.

"I also consider that the respondent's Assessment Board would be able to assess an applicant's suitability for `unlearning' acquired habits and skills to adapt to the requirements of military aviation and for peer group integration. Again, whilst these may be inherent requirements of the job, I find that there is insufficient evidence to establish a direct correlation between an applicant's age and the ability to meet these criteria...

The respondent also argued that the age criterion is necessary to ensure the respondent's return on investment... While return on investment is obviously relevant this consideration cannot form the basis for making age an inherent requirement of the position..." [Emphasis added.]

30 In these circumstances, the Commission's reliance on the decision of the Full Court of the Industrial Relations Court in Christie v Qantas Airways Ltd (1996) 138 ALR 19, in which an unduly narrow construction of "inherent requirements" was adopted, did not result in any error of law in its reasoning. It accepted - for the sake of argument at least - that each of the operational factors identified by the appellant was in fact inherent to the job of a trainee military line pilot.

"Based on"

31 The appellant contends that Wilcox J should have found that the Commission had incorrectly interpreted the phrase "based on" in par (c) as requiring more than a logical connection between the distinction, exclusion or preference and the inherent requirements of the particular job. In essence the appellant's submission was as follows.

* The Commission incorrectly formulated the question for determination under par (c) to be whether age is an inherent requirement of the particular job, rather than whether the 19-28 Rule is based on the inherent requirements of that job. In addition, it incorrectly held that in the present case par (c) requires a direct correlation between a person's age and the ability to fulfil the inherent requirements of the job of a (trainee) military line pilot. Existing precedent regarding the meaning of the phrase "based on" in discrimination law makes it clear, it was submitted, that all that phrase requires is a "logical connection" between the relevant distinction, exclusion or preference and the inherent requirements of the particular job, such that those requirements can be shown to have been the "true reason" for the distinction, exclusion or preference.

* The Commission's incorrect formulation of the issue for determination and incorrect interpretation of "based on" resulted in the appellant being (wrongly) required to show that no person over 28 years of age, or an insignificant number of persons over 28 years of age, could perform the work of a (trainee) military line pilot.

32 Wilcox J found that whilst the Commission's formulation of the inherent requirements issue did reflect some "looseness of language", its ultimate finding was sound and showed that the correct question had in fact been addressed. His Honour considered that the Commission had inferentially found that the 19-28 Rule was not based on the inherent requirements of the job of a military pilot because there was no "direct correlation" between those requirements and a person's age. His Honour saw no error in that finding. Specifically, he agreed with the Commission that "based on" requires "more than a logical link", and held that a distinction, exclusion or preference would only escape the definition of "discrimination" in subs 3(1) if it could be shown to be "established upon" the inherent requirements of the particular job ((1998) 158 ALR 468 at 482).

33 One aspect of the reasoning of the Commission and his Honour concerning the connection between the correct formulation of the issue for determination under par (c) and the definition of "based on" should be noted at this point. It is true, as Wilcox J acknowledged, that the question asked by the Commission was whether age is an inherent requirement of the job of a military line pilot (see at par 23 above). In his Honour's view, however, such formulation had no real consequence for the Commission's ultimate decision. I agree with his Honour's view because, as will appear, I also agree with his Honour's interpretation of "based on" as requiring a tight correlation between the 19-28 Rule and the inherent requirements of the job. That interpretation has the effect of removing any significant difference between the question posed by the Commission in this case (namely, is age an inherent requirement of the job of a military line pilot?), and the question that the appellant argued should have been posed (namely, is the 19-28 Rule based on the inherent requirements of the job of a military line pilot?). The reason is that a tight or close correlation will generally only exist between a distinction, exclusion or preference and the inherent requirements of a particular job if that distinction, exclusion or preference is necessary for the fulfilment of the job's inherent requirements. The requirement that an exclusion (here the exclusion of persons aged over 28) be necessary for the fulfilment of a job's inherent requirements is effectively a requirement that the exclusion itself be an inherent requirement of the particular job. The reason is that if A (the age exclusion) is necessary for B (a high level of medical fitness), and B is an inherent requirement of a job, then A can also be viewed as an inherent requirement of the job. Hence the Commission's interpretation of "based on" as requiring a "direct correlation" permitted, in this case, a shortening of the question under par (c) from whether the 19-28 Rule is based on the inherent requirements of the particular job, to whether age is itself an inherent requirement of the particular job. Wilcox J's essential agreement with this interpretation of "based on" meant that the "looseness of language" reflected in the Commission's formulation of the question arising under (c) was of no real consequence. It is not surprising, given this connection between the Commission's formulation of the question arising under par (c) and its interpretation of the words "based on", that the appellant's submissions in respect of those issues are so intertwined.

34 The appellant contends that "based on" requires no more than a logical connection between the relevant distinction and the inherent requirements of the particular job. In support of this contention it relies upon several cases in which the expression "based on" has been considered, including Australian Iron & Steel v Banovic [1989] HCA 56; (1989) 168 CLR 165 (at 177 per Deane and Gaudron JJ), Australian Medical Council v Wilson (1996) 68 FCR 46 (at 58 per Heerey J and at 76 per Sackville J), and Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127 (at 137 per Northrop J and at 149 per Lindgren and Lehane JJ). In each of these cases, however, the expression "based on" appears in the central or primary part of the relevant anti-discrimination provision. The context in which the expression appears in the present case, by contrast, is materially different by virtue of the fact that par (c) is not itself a primary part of the definition of "discrimination". The authorities relied on by the appellant are therefore not applicable.

35 In determining how the expression "based on" is to be interpreted in the present context, regard must be had to the objects of the Act. The Act was introduced to be the vehicle by which Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111) are implemented (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), outline). One of the primary purposes of the Act - consistent with the purpose of the ILO Convention itself - is the promotion of equal opportunity in employment. Thus the Act is described by its short title as an Act "to make provision in relation to human rights and in relation to equal opportunity in employment". This purpose is further reflected in the range of functions conferred on the Commission, and in the requirement in s 12 that the Commission have regard, in the performance of those functions, "to the principle that every person is free and equal in dignity and rights."

36 Respect for human rights and the ideal of equality - including equality of opportunity in employment - requires that every person be treated according to his or her individual merit and not by reference to stereotypes ascribed by virtue of membership of a particular group, whether that group be one of gender, race, nationality or age. These considerations must be reflected in any construction of the definition of "discrimination" presently under consideration because, if they are not, and a construction is adopted that enables the ascription of negative stereotypes or the avoidance of individual assessment, the essential object of the Act to promote equality of opportunity in employment will be frustrated.

37 It is for this reason that I would reject the appellant's argument regarding the expression "based on" in par (c) of the definition of "discrimination". The essence of that argument is that "based on" requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the Act's object of promoting equality of opportunity in employment by, in effect, permitting the assessment of persons' suitability for a particular job on grounds other than their individual merit. The nebulousness of notions of "logic" in this area makes it an inappropriate test for discrimination. This is particularly apparent in the current context of age-based discrimination, where it is not difficult to imagine an age-based exclusion that may be logical, when considered in light of the inherent requirements of a particular job, but that is nevertheless founded upon assumptions about the capacities of a person in a particular age-bracket rather than upon the actual capacities of that person, assessed individually. What is and is not "logical" in this sense will depend largely on changing social values and perceptions. Reference to "logic" in the current context is particularly problematic given what would seem to be the relatively low public consciousness in our society of the phenomenon of age discrimination, as distinct from other forms of discrimination. For the same reason, I would reject the appellant's argument, developed during the hearing of the appeal, that the true reason or motivation for the exclusion is the relevant factor in determining whether that exclusion is non-discriminatory within par (c). The subjective intention of the alleged discriminator in excluding certain persons from employment can never be a sufficient test of whether that exclusion in fact deprives people of their right to be assessed on the basis of their individual capabilities as distinct from stereotypes ascribed by virtue of being of a particular age.

38 The view that the "logical connection" test expounded by the appellant is inconsistent with the individual assessment of persons by reference to merit is consistent with the decision of the US Court of Appeals for the Ninth Circuit in Western Airlines, Inc v Criswell [1985] USSC 161; (1984) 472 US 400 ("Western Airlines"). That case concerned the test for whether "age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business" under §4(f)(1) of the Age Discrimination in Employment Act of 1967 ("ADEA"). The appellant had contended that age would be so considered if "a rational basis in fact" existed for believing that persons lacking suitable qualifications could not be individually identified. The Court rejected this contention (at 422) on the ground, amongst others, that:

"The `rational basis' standard is ... inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. [Footnote: Indeed, under a `rational basis' standard a jury might well consider that its `inquire is at an end' with an expert witness' articulation of any `plausible reaso[n]' for the employer's decision.] Under the Act, employers are to evaluate employees between the ages of 40 and 70 on their merits and not their age. In the BFOQ defense, Congress provided a limited exception to this general principle, but required that employers validate any discrimination as `reasonably necessary to the normal operation of the particular business.' It might well be `rational' to require mandatory retirement at any age less than 70, but that result would not comply with Congress' direction that employers must justify the rationale for the age chosen. Unless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job." [Footnotes omitted.]

39 The conclusion that the "subjective intention" and/or "logical connection" tests are inconsistent with the overriding object of the Act is also consistent with the International Labour Organization ("ILO") commentaries concerning the identically worded definition of "discrimination" in Art 1(2) of the ILO Convention, on which the current definition is based (Explanatory Memorandum to the Human Rights and Equal Opportunity Bill 1985 (Cth), clause 3). Those commentaries make it clear that the definition of "discrimination" is not to be interpreted restrictively, and that a distinction, exclusion or preference will only be justified by reference to the inherent requirements of a given job if it corresponds objectively and closely to those requirements, and if it takes account of individual capacities (see the ILO's General Survey: Equality in Employment and Occupation (1988)).

40 It is for these reasons that I would reject the interpretation of "based on" contended for by the appellant. In my view, the definition adopted by Wilcox J - that is, as requiring a connection that is "tight" or "close" - sits easily with the language of par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided. I therefore agree with his Honour that no error was made by the Commission in its construction of the expression "based on" for the purposes of par (c).

The remaining grounds of appeal

41 These conclusions are also determinative of the third and fourth grounds of appeal. With respect of the third ground of appeal, I would merely add that I agree with Wilcox J that the "tendency" of younger pilots to be fitter than older pilots would not be sufficient to establish the requisite correlation between the 19-28 Rule and the inherent requirement that trainee military line pilots possess a high level of fitness. As his Honour held (at 482):

"[I]t is not appropriate to reason that, because extreme fitness is an inherent requirement of the job of an SSO pilot, and younger pilots tend to be more fit than older pilots, therefore the requirement that SSO pilots be under 28 years of age on appointment is `based on' the requirement of fitness. Unless there is an extremely close correlation between the selected age and the fitness requirement, so that the age may logically be treated as a proxy for the fitness requirement, the legislation will have the effect of damning individuals over 28 years by reference to a stereotypical characteristic (less physical fitness) of their age group."

42 In its fifth ground of appeal, the appellant claims that the primary judge erred in focusing attention on the issue of medical fitness and, in particular, on medical fitness at the time Mr Bradley applied for appointment as a trainee military line pilot, to the exclusion of other relevant evidence regarding the capacity of older candidates to adjust to military life and to "unlearn" habits acquired during their civilian flying careers. This ground must also be rejected. Questions concerning an older applicant's suitability for "unlearning" acquired habits and skills, and for peer group integration, were raised before Wilcox J under one of the "no evidence" grounds upon which the appellant sought judicial review. His Honour specifically dealt with this ground, noting that the evidence before the Commission amply supported the conclusion it had reached.

43 The sixth ground of appeal also lacks substance when regard is had to the issues raised by the grounds upon which judicial review was sought. In any event, the Commission's reasons, read as a whole, and particularly its references to the Army's return on investment in training, show that the Commission did not fail to take into account this aspect of the matter.

Conclusion

44 The appeal should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice.

Associate:

Dated: 4 November 1999

TAMBERLIN J:

45 I have read the reasons for judgment of the Chief Justice in this matter and I agree with them and with the orders proposed therein. I wish to add some brief observations on the two central questions raised in this matter.

46 With respect to jurisdiction, I consider that the "finding" by the Human Rights and Equal Opportunity Commission ("HREOC") under the Human Rights and Equal Opportunity Commission Act (1986) (Cth) (the "HREOC Act") that the denial of employment to Mr Bradley by the Australian Defence Force ("ADF") was discrimination, constituted a "decision" within the meaning of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act").

47 The first task is to identify the "decision" in question. In this case it is the "finding" made under s 35(2) that the act or practice of excluding applicants because of age constitutes discrimination. The "finding" is properly characterised as a decision reached after consideration of material placed before the Commission. It is also a decision under an enactment in the sense that it is specifically provided for by the enactment. I consider that the appropriate principles are referred to in the decision of Mason CJ in Australian Broadcasting Commission v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337-338. The relevant passages are set out in the reasons for judgment of the Chief Justice in the present case. The question for determination by this Court is whether the finding or decision is final, operative and determinative, in a practical sense, of the issue falling for consideration. Another essential quality of a reviewable decision is that it should be a substantive determination. The determination must not be a mere expression of opinion or statement which can of itself have no effect on a person.

48 In the present case, once it is found that an act or practice engaged in by a person constitutes discrimination, specific statutory obligations are imposed both on the Commission and the Minister. Under s 35(2) of the HREOC Act the Commission must serve notice of its findings and reasons on the person who engaged in the act or practice. The Commission must also decide whether to include recommendations in the notice. If so, the notice must also set out the terms of such recommendations. The report to the Minister must also include particulars of the recommendations and state whether, to the knowledge of the Commission, any action is being taken as a result of the findings. It must serve a copy of that report on the complainant.

49 It is also necessary to note that the finding or decision is made after a detailed inquiry in relation to which the Commission is given extensive powers to compulsorily obtain information and examine witnesses. These powers carry criminal sanctions in the event of disobedience. Under s 27 the Commission is bound to provide to the person whose conduct is in question an opportunity to appear and make oral or written submissions. While these powers and obligations relate to the conduct of the inquiry itself, they provide some contextual support for characterising the finding of discrimination as a "decision" within s 3 of the ADJR Act. In particular, the requirements that an opportunity must be provided not only for appearance by a party but also by a representative, coupled with the opportunity to make both oral and written submissions, recognise the adverse practical consequences which may result from an adverse report to a person or body against whom a finding of discrimination is made.

50 In addition, consequent on the finding of discrimination and upon the furnishing of a report, a duty arises in the Minister by reason of s 46 to cause a copy of that report to be laid before both Houses of Parliament within fifteen sitting days after the report is received by the Minister.

51 Having regard to these consequences of a finding of discrimination, and the circumstances in which it is made, it cannot be said that the finding is either a mere expression of opinion or a statement which can have no effect on a person, to borrow the language of Mason CJ in Bond. The determination has a direct substantive and operative legal effect in that it creates enforceable rights and obligations as a direct consequence of it having been made. In this respect the provisions relating to the making of the findings by the Commission can be contrasted with the role performed by the Advisory Committees provided for in s 17 of the HREOC Act. The "advice" of those Committees gives rise to no rights, duties, or obligations in any person or body.

52 Although it is true that there is no obligation on Parliament to accept the recommendations made by the Minister, in a realistic and practical sense, the recommendations having been published and laid before both Houses of Parliament can readily be seen to have an impact on those persons or bodies who are the subject of adverse findings and recommendations.

53 Having regard to these considerations, it is my view that a finding by HREOC that an act or practice constitutes "discrimination" is a "decision within the meaning of this Act" as defined in s 3 of the ADJR Act.

54 The second central question raised in the present case concerns the meaning and extent of the expression "based on". In this case it is reasonably clear that the "inherent requirements" of the job of a Specialist Service Officer Army Pilot include considerations such as visual and auditory acuity; swift reaction times; psychological stability; ability to work in a team setting and excellent fitness and health. All of these requirements are clearly pitched at a very high level having regard to the extreme and difficult nature of the duties to be performed as set out in detail in the judgment of Wilcox J at first instance.

55 The consequence of using a broad criterion such as age to correlate with the inherent requirements of the job, is that the broader the criterion, the greater will be the number of cases in which discrimination is allowed to occur. Given the evident purpose of the anti-discrimination provisions and the problem at which they are directed, it is appropriate that there should be a close relationship between the criterion and the inherent requirements of the job. Circumstances can, of course, readily be envisaged in which age alone is clearly a controlling criterion having regard to common sense and the realities of everyday life. For example, a 70 year old person may manifestly be unsuitable for a position such as that under consideration. In such a case age can readily be used as a surrogate criterion for exclusion. On the other hand, where the age range is more circumscribed, the appropriate course is to require a closer relationship as favoured by Wilcox J. It is not difficult to envisage some circumstances where the ability to satisfy some inherent requirements of the job may be enhanced by a greater degree of experience, which may come about with age in some applicants, particularly where they are within an age group close to but outside that selected. There is no apparent reason in the present case, apart from possible inconvenience, why an applicant cannot or should not be assessed on individual performance criteria for which age is sought to be used as the overall surrogate criterion. If the applicant fails to meet any one or more of the relevant criteria then it will be open to the selecting person or body to take this into account in deciding whether to reject the application.

56 In the present case I am not persuaded that the judgment of Wilcox J discloses any error of law and accordingly I agree that the appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin J.

Associate:

Dated: 4 November 1999

KATZ J

57 The present proceeding is an appeal from a judgment of this Court constituted by a single Judge. The judgment from which the appeal has been brought dismissed an application for an order of review which had been made by the Commonwealth under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA"). (It is plain, incidentally, from the written application which initiated the proceeding before the single Judge that the Commonwealth sought to invoke in the proceeding solely this Court's jurisdiction under s 8 of the JRA; it did not seek to invoke in the alternative any jurisdiction which this Court might relevantly have under s 39B of the Judiciary Act 1903 (Cth); see further on that matter par 96 below.) Although the respondents to the Commonwealth's application were both the Human Rights and Equal Opportunity Commission ("the Commission") and Mr Robert Bradley, only the latter took a substantive role in the proceeding before the single Judge, the former merely filing a submitting appearance. (Likewise, the Commission took no substantive role in the present appeal.)

58 It is convenient to precede my discussion of the circumstances in which the Commonwealth made its application under the JRA by referring to certain provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Commission Act").

59 Section 11 of the Commission Act deals generally with the Commission's functions. Paragraph (1)(d) thereof provides that among the Commission's functions are those conferred on it by s 31 of the Commission Act. Section 31 of the Commission Act deals with the functions of the Commission relating to equal opportunity in employment. Subparagraph (b)(ii) thereof provides relevantly that among the Commission's functions of that type are inquiring into any "act" or "practice" that may constitute "discrimination" and, where the Commission is of the opinion that the act or practice inquired into constitutes discrimination, reporting to the Minister in relation to the inquiry.

60 The definition of the word "act" in subs 3(1) of the Commission Act includes relevantly an act done by or on behalf of the Commonwealth or one of its authorities; the definition of the word "practice" in the same subsection includes relevantly a practice engaged in by or on behalf of the Commonwealth or one of its authorities; and the word "discrimination" is defined relevantly in the same subsection as meaning,

"(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;

but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job ..."

61 As contemplated by par (b)(ii) of the definition of "discrimination", regulations have been made declaring certain distinctions, exclusions or preferences that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, additional to the distinctions, exclusions or preferences set out in par (a) of the definition, to constitute "discrimination" for the purposes of the Commission Act: see the Human Rights and Equal Opportunity Commission Regulations ("the Commission Regulations"). Among such distinctions, exclusions or preferences are those made on the ground of age, sexual preference and trade union activity: see subpars 4(a)(i), (ix) and (x) of the Commission Regulations.

62 It is worthy of note that, although the Commission Act confers on the Commission the function of inquiring into any act or practice that may constitute discrimination and, where it is of the opinion that the act or practice inquired into constitutes discrimination, reporting to the Minister in relation to the inquiry, that Act does not contain any provision rendering unlawful those acts or practices which do constitute discrimination within its meaning. In that respect, the Commission Act may be contrasted with the Racial Discrimination Act 1975 (Cth) (see in particular, s 15, dealing with discrimination in employment), the Sex Discrimination Act 1984 (Cth) (see, in particular, Pt II, Div 1, dealing with discrimination in work), the Disability Discrimination Act 1992 (Cth) (see, in particular, Pt 2, Div 1, dealing with discrimination in work) and the Workplace Relations Act 1996 (Cth) (see, in particular, par 170CK(2)(f), dealing with termination of employment on certain grounds).

63 Inquiries by the Commission into acts or practices that may constitute discrimination may, although they need not, be initiated by complaint by a person claiming to have been adversely affected by the act or practice: see par 32(1)(b) of that Act.

64 Although the Commission Act does not in terms do so, it implicitly requires the Commission, after an inquiry into an act or practice that may constitute discrimination, to make findings on the questions whether the existence of that act or practice has been established and, if such existence has been established, whether that act or practice constitutes discrimination. If, after inquiry, the Commission does make affirmative findings on both of those questions, then it has certain powers and duties which are set out in subs 35(2) of the Commission Act. That subsection provides,

"(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:

(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;

(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;

(c) may include in the notice any recommendation by the Commission for either or both of the following:

(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;

(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);

(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and

(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:

(i) where the complaint was made by a person affected by the act or

practice - shall serve a copy of that report on the complainant; or

(ii) if the complaint was made by another person - may serve a copy

of that report on the complainant."

65 Although it is not made explicit in subs 35(2), it appears to be implied by par (e) thereof that, when the Commission finds that an act or practice constitutes discrimination, its report to the Minister in relation to the inquiry will not be made immediately after it makes that finding. Instead, what appears to be contemplated is that the person who or which is found to have done an act or engaged in a practice which constitutes discrimination will first receive from the Commission the notice required by par 35(2)(a) and be given by the Commission some appropriate time within which to take action as a result of it, or, at least, express an intention to do so. Such passage of time will permit the Commission to state in a meaningful way in its report to the Minister in relation to the inquiry the information required by par 35(2)(e) to be stated in that report.

66 It should be noted that the duty imposed on the Commission by par 35(2)(a) to serve notice in writing setting out its findings and the reasons therefor is a duty to serve such notice only on the person who or which has been found by the Commission to have done an act or engaged in a practice which constitutes discrimination. There is no duty imposed on the Commission in such circumstances concurrently to serve a similar notice on the complainant (assuming there to have been one). No question arises in such circumstances of a duty in the Commission to inform the complainant of the result of its inquiry until the stage has been reached of the report to the Minister in relation to the inquiry, when, if the complainant was adversely affected by the act or practice inquired into, the Commission must serve a copy of the report on the complainant (see subpar 35(2)(f)(i) of the Commission Act) and, if the complainant was not adversely affected by the act or practice inquired into, the Commission may, in its discretion, serve a copy of the report on the complainant (see subpar 35(2)(f)(ii) of the Commission Act).

67 Apart both from the requirement imposed by par 35(2)(d) of the Commission Act that a report to the Minister in relation to an inquiry include particulars of any recommendations made by the Commission pursuant to par 35(2)(b) or (c) and notified in its par 35(2)(a) notice and from the requirement imposed by par 35(2)(e) that the report must state whether the person the recipient of the par 35(2)(a) notice has taken or is taking any and, if so, what, action as a result of that notice, the Commission Act does not specify the required contents of the Commission's report to the Minister in relation to the inquiry. It seems plain, however, that what is required is that a report to the Minister, as well as containing both any recommendations which have already appeared in the par 35(2)(a) notice and the additional information required by par 35(2)(e), must also report the Commission's findings and the reasons therefor. I say that for at least two reasons: first, it is difficult to conceive of a document's qualifying as a "report to the Minister in relation to the inquiry" (to quote from subpar 31(b)(ii) of the Commission Act) unless it reports the Commission's findings as a result of the inquiry and gives the reasons for those findings; and, secondly, if the inquiry has been initiated by a complaint and the complainant is found to have been the victim of discrimination, the only information to which that complainant is entitled about the outcome of that complaint is (as I have already explained in the preceding paragraph of these reasons for judgment) that in the Commission's report itself. As the sole source of information to the complainant, such report could hardly be expected not to be required to state the Commission's findings with respect to the complaint and the reasons for those findings. (I note, incidentally, that each of the five reports by the Commission to the Minister in relation to an inquiry relating to discrimination to which I refer in par 70 below did include the Commission's findings and the reasons therefor, simply repeating, as one would have expected, the same statement of findings and reasons which had already appeared in the par 35(2)(a) notice served after the completion of the inquiry.)

68 When the Commission finds after inquiry that an act or practice constitutes discrimination and reports to the Minister accordingly, the Minister is obliged, by s 46 of that Act, to cause the report to be tabled in each House of the Parliament.

69 A final matter worthy of note regarding the Commission Act is that it neither imposes on a person found by the Commission to have done an act or engaged in a practice which constitutes discrimination a duty to take any action as a result of any finding made about or recommendation made to that person by the Commission nor confers, whether on the Commission, the Minister or any other person or body, any means of compelling the taking of such action. In that respect, the role of the Commission under the Commission Act in relation to equal opportunity in employment by the Commonwealth and its authorities may be contrasted with the role of the Commission in relation to the same subject matter under three of the Acts which I have mentioned in par 62 of these reasons for judgment. For instance, if the Commission finds substantiated a complaint made under the Racial Discrimination Act about discrimination in employment, then, under subs 25Z(1) of that Act, rather than merely making findings about and recommendations to the person complained about and a report to the Minister, the Commission makes a determination which may include certain declarations. If the subject of the determination is a Commonwealth agency or its principal executive, then Pt III, Div 4, of that Act imposes a duty on that agency or executive of compliance with the determination. Equivalent provisions are to be found in subs 81(1) and Pt III, Div 4, of the Sex Discrimination Act and in subs 103(1) and Pt 4, Div 4, of the Disability Discrimination Act. In sum, when the Commission is performing its function under subpar 31(b)(ii) of the Commission Act in respect of a complaint made against the Commonwealth or one of its authorities, it may be said that the Commission is performing an Ombudsman-like role, although only in the limited area of equal opportunity in employment.

70 (It may be convenient to add here that, so far as I am aware, five reports by the Commission to the Minister pursuant to its reporting function under subpar 31(b)(ii) of the Commission Act have thus far been tabled in Parliament. Three of them have dealt with complaints of discrimination on the ground of age: see PP 150/1996, PP 427/1997 and PP 429/1997; one of them has dealt with a complaint of discrimination on the ground of trade union activity: see PP 428/1997; and one of them has dealt with a complaint of discrimination on the ground of sexual preference: see PP 133/1998. Each of them records a response, by the person or persons found by the Commission to have done an act or engaged in a practice which constitutes discrimination, to recommendations made to that person or those persons by the Commission. Those persons were Qantas Airways Limited (age), the Victorian Public Transport Corporation (age), the Victorian Department of Human Services (age), Australia Post (trade union activity), the Australian Institute of Marine and Power Engineers (age) and the Catholic Education Office (sexual preference). The recommendations made to Qantas Airways Limited, the Victorian Public Transport Corporation, the Victorian Department of Human Services and the Catholic Education Office were all rejected: see PP 150/1996 at 16-17; PP 427/1997 at 16-17 and 31-33; and PP 133/1998 at 10. The recommendation made to Australia Post was accepted: see PP 428/97 at 10-11. Of the recommendations made to the Australian Institute of Marine and Power Engineers, an attempt was made by the Institute to act upon one of them (unsuccessfully, because the consent to the act of the Australian Industrial Relations Commission was required, but was not given), but the Institute did not inform the Commission as to its attitude to the others of them: see PP 429/1997 at 12-13.)

71 Having now referred to those provisions of the Commission Act to which it is necessary to refer for present purposes, I turn to the circumstances in which the Commonwealth made its application under the JRA.

72 On 11 May 1993, Mr Bradley made a complaint to the Commission under the Commission Act, alleging that the Commonwealth (by the Australian Army) had done an act or engaged in a practice which constitutes discrimination. The Commission inquired into that complaint. Almost five years after the making of that complaint, on 5 March 1998, the Commission served a notice in writing on the Commonwealth pursuant to par 35(2)(a) of the Commission Act, setting out its finding that,

"... the act and practice complained of by the complainant, namely that he was denied the opportunity to apply for a position in the SSO [that is, the Specialist Service Officer] Pilot Scheme on account of his age, constituted discrimination in employment based on age."

The notice in question gave the Commission's reasons for that finding and also included one recommendation, namely, that the complainant be paid compensation of five thousand dollars. That recommendation was plainly made in purported exercise of the power conferred on the Commission by subpar 35(2)(c)(i) of the Commission Act. The notice was sent under cover of a letter from the Commission of the same date, requesting information within twenty-eight days as to the taking of any action as a result of the finding and recommendation, so that the Commission could include in its report to the Minister in relation to the inquiry information of the type referred to in par 35(2)(e) of the Commission Act.

73 (I should perhaps add here that, although par 35(2)(b) of the Commission Act explicitly conferred on the Commission a power to include in the notice recommendations for preventing a repetition or continuation of the act or practice, no such recommendations were included in the notice. The Commonwealth did argue on the present appeal that the par 35(2)(a) notice to it should be read as impliedly containing such a recommendation or recommendations, although there was no elaboration upon what that recommendation was or those recommendations were. I reject such argument, especially given the presence in the notice of one express recommendation. I note also that the Commission's letter referred to in the preceding paragraph of these reasons for judgment drew attention to the Commission's having included in the notice a recommendation for the payment of compensation, but made no reference to any other recommendation's having been included. It is inconceivable to me that if the Commission had intended by its par 35(2)(a) notice to make such additional recommendation(s), it would not have referred to that additional recommendation or those additional recommendations in its letter.)

74 On 6 April 1998, the Commonwealth filed its application under the JRA. (Although the Court was given no information about the matter, I assume that, that filing having occurred, the Commission has postponed reporting to the Minister in relation to the inquiry.) According to the application, review was being sought of a "decision" by the Commission. (It is plain, incidentally, from the written application filed by the Commonwealth that it characterised that of which it complained only as a "decision" within the meaning of the JRA; it did not characterise it in the alternative as conduct engaged in for the purpose of making a decision within the meaning of the JRA; see further on that matter par 106 below.) The "decision" challenged was described in the application as follows:

"... the decision of the first respondent [that is, the Commission] whereby the first respondent found that he [sic] was not satisfied that the exclusion of persons, such as the second respondent [that is, Mr Bradley], outside the age range of 19 to 28 years from employment as military line pilots is based on the inherent requirements of the job of a military line pilot, and that the acts and practices complained of by the second respondent constituted discrimination in employment based on age AND recommended that the applicant pay to the second respondent the sum of $5,000.00 for his loss as a consequence of the discrimination."

(I draw attention, incidentally, to the omission from that description of the "decision" challenged of any reference to some recommendation(s) additional to the recommendation for the payment of compensation, an omission which reinforces the conclusion which I have expressed in par 73 above.)

75 As I have already said at the outset of these reasons for judgment, the primary Judge dismissed the Commonwealth's application under the JRA. Such dismissal was based on the merits of the Commonwealth's application, rather than on any jurisdictional ground. Mr Bradley, who, as I have also already said, was the sole contradictor in the proceeding, took no point about the Court's jurisdiction in the matter and the Court did not deal in its reasons for judgment with the question of whether the Commonwealth's application under the JRA had been competent.

76 (The omission of Mr Bradley to take any jurisdictional point was presumably caused simply by the fact that he too had made application under the JRA in respect of the result of the inquiry, apparently challenging, on the ground that he had been denied procedural fairness with respect to the making of it, the Commission's recommendation that he be paid five thousand dollars in compensation. Mr Bradley was aware of that recommendation because, although (as I have already explained in par 66 of these reasons for judgment) the Commission was under no statutory obligation to serve on him notice of its finding, its reasons therefor and its recommendation, it had done so nonetheless. Mr Bradley ultimately invited the primary Judge to dismiss his application, having decided not to pursue it, and the primary Judge did so accordingly.)

77 Of course, the absence of any concluded consideration by the primary Judge of the question of whether the Commonwealth's application was competent does not relieve this Court of the necessity of considering that question. If the primary Judge had no jurisdiction in the matter, then this Court has no jurisdiction to hear and determine an appeal from the judgment of the primary Judge: compare Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14 (Mason J); and the present appeal must be dismissed as incompetent.

78 Given the circumstances to which I have referred above, this Court invited the Commonwealth during the hearing of its appeal to make submissions on the jurisdictional issue and the Commonwealth did so. I will deal with those submissions in the course of discussing the question of the competence of the Commonwealth's application under the JRA.

79 It appears to me that the most convenient way to discuss the question of the competence of the Commonwealth's application under the JRA is to ask myself in the first instance whether it would have been open to the Commonwealth, if the Commission had already reported to the Minister in relation to the inquiry, to seek review of that report, on the basis that it was a "decision" within the meaning of the JRA. Then, having answered that question, I will turn to the act nominated by the Commonwealth in its application for review as a "decision" within the meaning of the JRA and ask myself whether that nominated act is such a "decision".

80 In order to answer the question whether the making of a report by the Commission to the Minister would be the making of a "decision" within the meaning of the JRA, it is necessary, in my view, to consider two matters. As both of those matters depend upon the terms of subs 3(3) of the JRA, it is convenient to set that provision out immediately. It provides,

"Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

81 The two matters to which I have referred in the preceding paragraph of these reasons for judgment are as follows: first, whether the Commission Act falls within subs 3(3) of the JRA, as providing for the making of the Commission's report to the Minister in relation to an inquiry relating to equal opportunity in employment "before a decision is made in the exercise of a power under" either the Commission Act or another law, in which case, by virtue of subs 3(3) of the JRA, the making to the Minister of a report by the Commission in relation to an inquiry relating to equal opportunity in employment would be deemed to be a "decision" within the meaning of the JRA; and, secondly, if the first matter is determined in the negative, whether subs 3(3) of the JRA is exhaustive as to those reports and recommendations made pursuant to enactment which are deemed to be a "decision" within the meaning of the JRA or, to express the second matter in other words, whether, when an enactment provides for the making of a report or recommendation, the making of that report or recommendation is capable of amounting to the making of a "decision" within the meaning of the JRA, nonetheless though it is not also provided that the report or recommendation is to be made before a decision is made in the exercise of a power under either that enactment or another law.

82 As to the first of those two matters, the meaning of the concept appearing in subs 3(3) of the JRA of an enactment's making provision "for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law" has been discussed in the cases on numerous occasions. For present purposes, it is sufficient to refer to the discussion of the concept by Northrop and Lockhart JJ in their joint reasons for judgment in Edelsten v Health Insurance Commission (1990) 27 FCR 56. Their Honours there said (at 70),

"In our opinion, s 3(3) applies where there is a provision in an enactment that a particular report or recommendation be made as a condition precedent to the making of a decision under that enactment or under another law. The subsection was considered by Mason CJ in [Australian Broadcasting Tribunal v] Bond [(1990) [1990] HCA 33; 170 CLR 321] (at ... 336 ...) but as an indication that the word `decision' as used in the Judicial Review Act has a relatively limited field of operation. The Chief Justice's remarks did not touch the present question. We agree with the view expressed by Ellicott J in Ross v Costigan (1982) 59 FLR 184 at 198 that s 3(3) `contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other'."

83 Applying the above analysis to the making of a report by the Commission to the Minister in the performance of its function under subpar 31(b)(ii) of the Commission Act, the making of such report would not fall within subs 3(3) of the JRA, because the Commission Act confers no decision-making power to which the making of such report is expressed to be a condition precedent, nor, so far as I am aware, does any other law.

84 Having determined in the negative the first of the two matters to which I have referred in par 81 above, it is necessary for me now to turn to the second of them, namely, whether subs 3(3) of the JRA is exhaustive as to those reports and recommendations made pursuant to enactment which are deemed to be a "decision" within the meaning of the JRA.

85 To my mind, the obvious construction of subs 3(3) of the JRA is the one to which I have just referred. So construed, the subsection would simply be yet another of the innumerable instances of provisions on the statute book illustrating the fact, "noted very early in the development of the principles of interpretation", that affirmative words can also have a negative force: see R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 (Dixon CJ and McTiernan, Fullagar and Kitto JJ), relying on a decision which was then already over four hundred years old. It appears to me that anyone who wishes to argue against that obvious construction of the subsection must bear the burden of showing good cause why it should not be adopted.

86 If someone were to seek to shoulder the burden of demonstrating that subs 3(3) is not exhaustive, it appears to me that the only argument realistically available to that person would be that the subsection is instead, in effect, merely illustrative. Such an argument would have two steps: first, the Parliament intended, simply by using the word "decision" to describe acts reviewable under the JRA (and see also subs 3(2) of that Act), either to enact that all reports or recommendations made pursuant to enactment (including, of course, those identified in subs 3(3)), were a "decision" within the meaning of the JRA or (what is much less probable) to enact that at least some such reports or recommendations (but still including those identified in subs 3(3)), were such a "decision"; and, secondly, at the same time, however, the Parliament considered that there might be some doubt as to whether or not it had intended that reports or recommendations of the particular type identified in subs 3(3) be such a "decision", so that it enacted subs 3(3) for the avoidance of such doubt. To put that argument in yet another way, it may be said that subs 3(3) was intended by the Parliament to be declaratory, rather than constitutive, in effect.

87 I regard the argument which I have just set out as ultimately unsustainable for a number of reasons.

88 First, I draw attention to the use in subs 3(3) of the language of "deeming". Reports and recommendations of the particular type identified in subs 3(3) are not said to be a "decision" within the meaning of the JRA; they are said instead to be deemed to be such a "decision". While I recognise, of course, that the use of the language of "deeming" does not necessarily signify the use by the Parliament of a statutory fiction (see, for instance, Windeyer J's well-known discussion of the topic in Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65-67), nevertheless the use of such language suggests to me the provision's having been intended to have a constitutive, rather than a merely declaratory, effect, giving the character of a "decision" within the meaning of the JRA to things which would not otherwise have had that character. That the Parliament used the language of "deeming" to create a statutory fiction is rendered the more likely by the presence in the JRA of the very subsection preceding subs 3(3), which provides, not that the doing of a certain act "shall itself be deemed, for the purposes of this Act, to be the making of a decision", but that "[i]n this Act, a reference to the making of a decision includes a reference to" the doing of various acts.

89 Secondly, if the Parliament had considered it desirable by enacting subs 3(3) to dispel any doubt which might otherwise have arisen that reports or recommendations of one particular type already fell, as did all other types of reports or recommendations, within the concept of a "decision" within the meaning of the JRA, no good reason appears why it would have considered it desirable to single out for such dispelling of any doubt the particular type of reports or recommendations which it did in fact single out in subs 3(3). If it were considered desirable to dispel any doubt that reports or recommendations of one particular type already fell within the concept of a "decision" within the meaning of the JRA, rather than legislating with respect to that type of report or recommendation which was a condition precedent to the exercise of a decision-making power, it surely would have been far more likely that the Parliament would have legislated with respect to that type of report or recommendation which was not a condition precedent to the exercise of a decision-making power.

90 Finally, I draw attention to what Mason CJ, with whom Brennan J agreed (at 365) and Deane J relevantly agreed (at 369) said about subs 3(3) of the JRA in the Bond Case (at 336). His Honour was in the course of identifying considerations which pointed to the word "decision", as used in the JRA, "having a relatively limited field of operation". Having pointed to two such considerations which were "indicative of a decision having the character or quality of finality", his Honour continued,

"Thirdly, s. 3(3), in extending the concept of `decision' to include `the making of a report or recommendation before a decision is made in the exercise of a power', to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that `decision' comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination."

91 Although, as was pointed out by Northrop and Lockhart JJ in the Edelsten Case, what had been said by Mason CJ in the Bond Case about subs 3(3) did not assist as to the first of the two matters which I said in par 81 I would discuss, it does, in my view, assist as to the second of those two matters. To my mind, the use of such language by the High Court is impossible to reconcile with a view of subs 3(3) which treats that subsection as having merely a declaratory effect. (Nor, I should perhaps add, is there any other decision, whether of the High Court or of a Full Court of this Court, which is to different effect.)

92 It follows from all that I have said above that it is my view that, if the Commission had already reported to the Minister in relation to the inquiry, then it would not have been open to the Commonwealth to seek review of that report under the JRA, it not being a "decision" within the meaning of that Act.

93 One judicial decision which, although obviously not binding on this Court, may be thought to contain reasoning which contradicts the conclusion which I have just expressed is that of Finn J in Kelson v Forward (1995) 60 FCR 39. Since it was that case which the Commonwealth placed at the forefront of its submissions before this Court on the jurisdictional issue, it is appropriate that I now refer to that case in some detail.

94 Section 56 of the Merit Protection (Australian Government Employees) Act 1984 (Cth) provided relevantly:

"56. (1) The Minister ... may request the Agency [that is, the Merit Protection Review Agency or MPRA], in writing, to conduct an inquiry into:

(a) a decision made, or an action taken, in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee; or

(b) decisions of a specified kind made, or actions of a specified kind taken, in relation to Commonwealth employees included in a specified class of Commonwealth employees in relation to their employment as Commonwealth employees.

(2) Where the Agency is requested under subsection (1) to conduct an inquiry into a matter, the Agency may conduct an inquiry into that matter and, where it conducts such an inquiry, shall provide to the Minister ... and, in a case where the matter is a matter referred to in paragraph (a), to the Commonwealth employee concerned, a report in writing setting out the results of the inquiry."

95 Pursuant to the power conferred upon him by subs 56(1), the Minister requested the conduct of an inquiry by the MPRA. The MPRA complied and then purported to provide a report setting out the results of that inquiry. Two individuals whose conduct had been criticised in that report brought a proceeding in this Court to challenge the lawfulness of the report's making. In doing so, they sought to invoke a number of different possible sources of this Court's jurisdiction, including the JRA.

96 (I should point out now that another source of this Court's jurisdiction which was sought to be invoked in that case was subs 39B(1) of the Judiciary Act. That was a source of jurisdiction possibly relevant in that case, because of the presence on the respondent's side of the record of an officer of the Commonwealth. It was not, incidentally, a source of jurisdiction possibly relevant in the present case, because of the absence from the respondents' side of the record of any officer of the Commonwealth. Mr Bradley was self-evidently not such an officer; indeed, that had been the reason for his complaint to the Commission. Neither was the Commission such an officer, it being a body corporate (see par 7(2)(a) of the Commission Act) and therefore incapable of being such an officer: see Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 (FCA; Gummow J); Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575 (FCA; Davies J); New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 382 (Hill J); and Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen [1996] FCA 981; (1996) 70 FCR 419 at 432 (Tamberlin J).)

97 The respondent submitted that the Court had no jurisdiction under the JRA to review the making of the report by the MPRA, an argument which Finn J rejected. In dealing with that argument, his Honour said (at 61-62),

"The applicant's submission that the making of the Report was a reviewable decision was made up of the following two elements. First, unlike in Bond ..., this Report was not merely a conclusion reached as a step along the way in a course leading to some ultimate decision: cf Bond at 337 per Mason CJ. Its making was an end in itself. If a subsequent decision or action was taken in consequence of it that would be a new - a separate - matter. In this sense the Report had the `quality of finality' required of a reviewable decision: cf Edelsten at 69. Secondly, it was a decision having operative effect in that it `can of itself have [an] effect on a person': cf Ross v Costigan (1982) 59 FLR 184 at 197. The relevant effect was the risk the Report posed to the reputations of the applicants. Reliance here was placed upon decisions of the High Court affirming that `reputation is an interest attracting the protection of the rules of natural justice': Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578. I am in broad agreement with the conclusion pressed by the applicants.

It is not, in my view, possible to say that because a Report is made in consequence of a request under the Merit Protection (Australian Government Employees) Act, s 56, it is or is not for that reason a `reviewable decision' for ADJR Act purposes. Depending upon the terms of the request made, its subject matter, the nature of the rights and interests it is capable of affecting, and the relationship of the request to other decisions or actions in train or in contemplation, a particular Report may be capable of having any one of the three characters given to decisions by Northrop and Lockhart JJ in the Full Court of this Court in Edelsten at 68:

`Some decisions will have real impact upon a person's rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position.'

The nature of the Minister's request in this case was, at the least, to establish the possible existence of workplace harassment at the AWM [that is, the Australian War Memorial]. If that phenomenon was found and if identifiable individuals were found to be its perpetrators (and were so reported upon) that, without more in my view, would in this instance constitute a reviewable decision - irrespective of whether the Minister considered it necessary or desirable to initiate consequential steps, whether against those individuals or otherwise; and irrespective of whether the MPRA in its Report recommended consequential measures. My reasons for this conclusion are these.

First, the legislative scheme of the Act to which s 56 belongs does not itself create a larger decision making process in which it locates a s 56 report as merely a part or step.

Secondly, the actual terms of the Minister's request and the context of its making do not suggest in any way that the findings made in relation to the subject matter to be inquired into, were to be treated as other than substantive determinations.

There is, in other words, nothing in the legislative scheme or in the actual request made that compels the conclusion that to treat the Report as a discrete decision would itself result in `a fragmentation' of such process of administrative decision-making as may have been envisaged for the matter to which the request related: cf Bond's case at 337 per Mason CJ. The Report can properly be said to stand alone as a separate and discrete decision. That subsequent decisions may be taken in consequence of it, does not rob it of this character.

Thirdly, and I here am in complete agreement with the applicant's submission, the Report has operative effect in that `of itself' - cf the comments of Mason CJ on these words in Bond at 338 - it can have an effect on interests of the applicants that are protected by the law. This effect alone would not result in the Report being a reviewable decision: cf the personal findings against Mr Bond in Bond's case. It is the combination of the qualities of finality and of substantive determination which is necessary to produce that result: see Edelsten at 66.

Fourthly, notwithstanding that the Report has been kept confidential to date, the `risk to reputation' - cf Ainsworth v Criminal Justice Commission at 585 per Brennan J - it poses, begins at the moment the Report is submitted to the minister. This is because the reputation at risk is in part at least that of public sector manager, while the recipient of the Report is a person who can properly be taken to have a direct interest in ascertaining the accuracy or otherwise of that reputation. He is the Minister Assisting the Prime Minister for Public Service Matters.

Finally, even if the Report is kept relatively confidential - and the Minister apparently is under no formal obligation so to keep it - it may nonetheless constitute a factor in subsequent decisions taken in relation either to the applicants individually or to the AWM by those who have been made privy to its contents. Such subsequent decisions need not necessarily be linked explicitly to the Report in the sense of being based upon, or of growing out of, it. It thus has the independent capacity to be the instrument of silent and/or collateral injurious affection to the applicants. That it possesses this quality when considered in the light of the matters to which I have already referred serves to reinforce the conclusion that it satisfies the Bond test."

98 It will be apparent from what I have already said above that it is my view that the reasoning of Finn J which I have just set out was expressed per incuriam, his Honour having made no reference whatever in the course of his reasons to the presence in the JRA of subs 3(3) (let alone to what the High Court had said about that provision in Bond's Case).

99 I should, however, add that, even if I were able to accept the correctness of Finn J's reasoning, that reasoning would be of no assistance to the Commonwealth in the circumstances of the present case. An essential part of Finn J's reasoning leading to the conclusion that the MPRA's report to the Minister was a "decision" within the meaning of the JRA in the circumstances of Kelson's Case was that that report was capable of affecting adversely the reputations of particular individuals. The report by the Commission to the Minister in relation to the inquiry, the existence of which report I am hypothesising for present purposes, would, no doubt (and as I have already explained in par 67 above), repeat those findings, the reasons therefor and the recommendation already contained in the Commission's par 35(2)(a) notice. This Court has before it the Commission's par 35(2)(a) notice and there is, in my view, nothing in either the findings, the reasons therefor or the recommendation contained in that notice which has the capacity adversely to affect the reputation of any particular individual, a matter correctly conceded by the Commonwealth in argument on the appeal. Thus, even the application of Finn J's reasoning to the Commission's (hypothetical) report in the present case would not lead to the conclusion that its making was the making of a "decision" for the purpose of the JRA.

100 (I should, perhaps, add here that, if it were to be suggested (although it was not so suggested by the Commonwealth on the present appeal) that a possible adverse effect upon the Commonwealth's own reputation would be sufficient to make the (hypothetical) report a "decision" for JRA purposes in the present case, then, in my view, the Commission's findings, its reasons therefor and its recommendation have no more capacity adversely to affect such reputation (assuming it to exist for present purposes) than they do adversely to affect the reputation of any particular individual. That being so, it is unnecessary to consider the correctness of the assumption that the Commonwealth does have a reputation in the relevant sense.)

101 For the reasons which I have just given, the reasoning of Finn J in Kelson does not cause me to alter the view which I have expressed in par 92 above.

102 Thus far in these reasons for judgment, I have been asking myself the question whether the Commission's hypothetical report to the Minister in relation to the inquiry would be a "decision" within the meaning of the JRA and have concluded that it would not be. I turn my attention now directly to the Commission's findings and its recommendation as communicated in its par 35(2)(a) notice, the making of those things, as I have already mentioned in par 74 above, being characterised in the Commonwealth's initiating process in the present case as the making of a "decision" for JRA purposes. If the making of the hypothetical report would not be the making of such a decision, can it nevertheless be argued that the making of the findings and the recommendation was?

103 I find it impossible to see how it can be successfully argued, as was sought to be argued by the Commonwealth before this Court, that the act of the making by the Commission of the findings and a recommendation was a "decision" within the meaning of the JRA, when the making of the report itself would not be. The making by the Commission of those findings and that recommendation was, after all, an essential part of the Commission's function of reporting to the Minister in relation to the inquiry. The mere fact that such findings and recommendation were required by par 35(2)(a) of the Commission Act to be separately communicated in advance to the person found to have discriminated should not obscure their true character as an essential part of the Commission's reporting function. To accept the Commonwealth's argument would be to permit the circumvention of the implied exclusion from review under the Act of the Commission's making of its report to the Minister.

104 An analogy to the view I have just expressed is to be found in Thongchua v Attorney-General (1986) 11 FCR 187. Decisions of the Governor-General are excluded from review under the JRA. Section 19A of the Crimes Act 1914 (Cth) conferred upon the Governor-General, acting with the advice of the Attorney-General, a particular decision-making power. It was argued by the appellant in Thongchua that the giving of the Attorney-General's advice was the making of a reviewable "decision" under the JRA (coincidentally, by reason of subs 3(3) of the JRA), nonetheless though the making of a decision by the Governor-General, acting with that advice, was not. The Court, however, rejected that argument. In joint reasons for judgment, Neaves and Burchett JJ pointed out (at 192) that,

"... the advice of the Attorney-General is only involved as a part, indeed a necessary part, of the ordinary process of the making of such a decision by the Governor-General. It is therefore within a fair understanding of what is comprehended by the reference in the Judicial Review Act to `a decision by the Governor-General' ..."

In the same way, it may be said that the making of findings and recommendations by the Commission is a necessary part of the making by it of a report to the Minister and that if the making of the report is not the making of a "decision" within the meaning of the JRA, then neither is the making of findings and recommendations for the purpose of the making of that report, whether they be communicated in that report or in an earlier document.

105 I should add, however, that, to the extent to which the Commonwealth relied upon the reasoning of Finn J in the Kelson Case to support the argument that, in the present case, the act of the making by the Commission of the findings and the recommendation was a "decision" within the meaning of the JRA, that reasoning no more assists it in that argument than it would assist it in an argument that the Commission's report itself would be a "decision" within the meaning of the JRA. I have already given my reasons in pars 99 and 100 above why that reasoning would not assist the Commonwealth in the latter argument and need not repeat them here.

106 Finally, I should add that, although, as I have already mentioned in par 74 above, the Commonwealth in its initiating process only characterised the act of making the findings and the recommendation as a "decision" within the meaning of the JRA, it sought on the hearing of the appeal to argue in the alternative that that act was "conduct" within the meaning of the JRA and reviewable on that basis. Without troubling myself over the question whether the Commonwealth should be permitted, in the circumstances which I have just outlined, to make such an argument at this stage, in my view, that argument must fail. The reason is that the JRA only applies to conduct engaged in "for the purpose of making a decision to which this Act applies" (see subs 6(1)) and, for the reasons which I have already given, that act, if viewed as conduct, would not be conduct engaged in for the purpose of making a decision to which the JRA applies, but rather conduct engaged in for the purpose of making a non-reviewable report.

107 In the circumstances, the Commonwealth's appeal should be dismissed, with costs, as incompetent.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated: 4 November 1999

Counsel for the Appellant:	Ms R Henderson
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr T O'Gorman
Solicitor for the Second Respondent:	Townsville Community Legal Service Incorporated
Date of Hearing:	24 February 1999
Date of Judgment:	4 November 1999