Dao v Australian Postal Commission [1987] HCA 13; (1987) 162 CLR 317 (14 April 1987)

HIGH COURT OF AUSTRALIA

DAO v. AUSTRALIAN POSTAL COMMISSION [1987] HCA 13; (1987) 162 CLR 317
F.C. 87/013

Constitutional Law

High Court of Australia
Mason C.J.(1), Wilson(1), Deane(1), Dawson(1) and Toohey(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Inconsistency between Commonwealth and State laws - Commonwealth law providing for employment of Postal Commission workers - Terms to be determined by Commission - Requirement of medical examination - State law prohibiting discrimination in employment - Provisions for investigating complaints and taking remedial action - Suit to which Commonwealth a party - Rights of parties to be as nearly as possible the same as between subject and subject - Whether State law applied in suit to which Commission a party Postal Services Act 1975 (Cth), ss. 42(1), 45(1), 46(1) - Anti Discrimination Act 1977 (N.S.W.), ss. 25, 113 - Judiciary Act 1903 (Cth), s. 64 - The Constitution (63 & 64 Vict. c. 12), s. 109.

HEARING

1987, March 11, 12, 17; April 14. 14:4:1987
Appeal from the Supreme Court of New South Wales.

DECISION

MASON C.J., WILSON, DEANE, DAWSON AND TOOHEY JJ.: These are appeals from the Court of Appeal of the Supreme Court of New South Wales (Kirby P., Samuels and McHugh JJ.A.). The appellants, Dao Thi Nguyet Thanh and Nguyen Thi Dieu Ahn, are two women of Vietnamese national origin. They were each employed by the respondent ("the Commission") in accordance with the provisions of the Postal Services Act 1975 (Cth), as amended ("the Commonwealth Act") from 23 February 1981 until 11 June 1981 as a temporary assistant postal officer engaged in mail officer duties. In April 1981 they each sought permanent appointment. The procedures associated with an application of that kind required an applicant to be medically examined. Following this medical examination each appellant was informed that she did not possess the standard of medical fitness required for the appointment sought and her application for permanent appointment was refused. Thereafter, on 11 June 1981, the Commission terminated the employment of each appellant on the ground of want of medical fitness.

2. Each of the appellants then lodged with the Counsellor for Equal Opportunity under the Anti-Discrimination Act 1977 (N.S.W.) ("the State Act"), as it then stood, complaints of discrimination based on the grounds of race, national origin and sex. In each case it was alleged that the Commission had required as a criterion of appointment of each of the appellants that she attain a specified minimum body weight determined by reference to the height and sex of the applicant in accordance with a scale prepared and used by the Commonwealth Department of Health. The contention was that in imposing such a requirement, the Commission had engaged in discrimination in contravention of the State Act. In due course the complaints were referred in accordance with the transitional provisions of the Anti-Discrimination (Amendment) Act 1981 (Sch.6) to the Equal Opportunity Tribunal ("the Tribunal") constituted by that amending Act. The Commission unsuccessfully challenged the jurisdiction of the Tribunal and it was the decision of the Tribunal on the question of jurisdiction which then formed the subject of appeal by the Commission to the Court of Appeal. At the same time the Commission instituted proceedings for prerogative relief. The Tribunal has not yet considered the merits of the complaint of each of the appellants.

3. It is necessary to refer in some detail to the course of events in the Court of Appeal. The complaints of the appellants relating to alleged discrimination on the basis of race and national origin encountered difficulty by reason of the decision of this Court in Viskauskas v. Niland [1983] HCA 15; (1983) 153 CLR 280 where it was held that the provisions of the State Act dealing with discrimination on the basis of race and national origin were inconsistent with the Racial Discrimination Act 1975 (Cth). The consequence was that those provisions were invalid, by reason of s.109 of the Constitution, to the extent of the inconsistency. A later attempt by the Commonwealth Parliament, by an Act which received assent on 19 June 1983, to enable the State Act and the Racial Discrimination Act to operate together was denied any retrospective effect by this Court in University of Wollongong v. Metwally [1984] HCA 74; (1984) 158 CLR 447. The events complained of by the appellants having occurred in 1981, the question of alleged discrimination on the grounds of race and national origin therefore could not be pursued in the Court of Appeal notwithstanding that the appellants each filed a notice of contention attacking the validity of the Racial Discrimination Act. This aspect of the case was alluded to in the hearing of the applications for special leave to appeal to this Court and in granting leave the Court ordered:

"that in the first instance such grant of special
leave be limited to exclude any argument as to the
question of the validity and effect of the Racial
Discrimination Act 1975 (C'wealth)".
this Court but it remains open for the appellants to seek special leave to raise the matter should they see any advantage in doing so, having regard to the decision of the Court on the matters that have been canvassed in the appeals. For the present the Court is concerned only with the question of alleged sex discrimination.

4. A number of issues have been agitated in the argument before this Court. They include the following:

1. Whether s.52(ii) of the Constitution, which
provides that the Parliament of the Commonwealth
shall have exclusive legislative power with respect
to matters relating to any department of the public
service the control of which was transferred by the
Constitution to the Executive Government of the
Commonwealth, was a transitional provision which is
now spent. If no, whether it operates so as to
render the legislative power of the Commonwealth
exclusive so far as concerns the Commission.

2. Whether the State Act is invalid in its purported
application to the Commission by reason of s.109 of
the Constitution.

3. Whether s.64 of the Judiciary Act 1903 (Cth), as
amended, has any operation in the circumstances of
the case, and if so, with what effect.

4. Whether the State Act is able of its own force to
bind the Commission and the bearing on that issue
of the decision in The Commonwealth v. Cigamatic
Pty. Ltd. (In Liquidation) [1962] HCA 40; (1962) 108 CLR 372.

These issues are substantially the same as those which were canvassed in the Court of Appeal. Each of their Honours found for the Commission on one or more of these issues and hence were unanimous in allowing the appeal. An order in the nature of a writ of prohibition was directed to the Tribunal. After hearing full argument on all these issues from counsel for the appellants and from the Solicitor-General of New South Wales appearing for the Attorney-General of New South Wales intervening in support of the appellants, the Court intimated that it did not wish to hear full argument at that stage from counsel for the Commission or from the Solicitor-General of the Commonwealth appearing for the Attorney-General of the Commonwealth intervening in support of the Commission on the issues numbered 1 and 4.

5. Mr Bennett Q.C., counsel for the appellants, placed s.64 of the Judiciary Act in the forefront of his argument. That section reads as follows:

"In any suit to which the Commonwealth or a State
is a party, the rights of parties shall as nearly
as possible be the same, and judgment may be given
and costs awarded on either side, as in a suit
between subject and subject."

Mr Bennett submitted that the section has the effect that a conflict between a provision of a Commonwealth Act and a provision of a State Act which affects the Commonwealth by virtue of s.64 must be resolved, not as a question of inconsistency under s.109 of the Constitution, but as a question of implied repeal of one Commonwealth provision (that is, s.64) by another. The distinction is, of course, significant as Fullagar J. explained in Butler v. Attorney-General (Vict.) [1961] HCA 32; (1961) 106 CLR 268, at pp 275-276. The corollary to this primary proposition advanced by Mr Bennett was that nothing in the Commonwealth Act evinces an intention on the part of the Parliament to repeal so much of s.64 as would pick up the State Act and make it applicable to the Commission in relation to its engagement and dismissal of staff. Counsel recognized that the fundamental assumption underlying this manner of formulating an approach to the case was that on its proper construction s.64 was capable of exposing the Commission to liability for a contravention of the State Act and that was the second matter to which Mr Bennett directed his attention.

6. But in our opinion, the argument cannot be accepted. It is as well to recall the oft-quoted words of s.109 of the Constitution:

"When a law of a State is inconsistent with a law
of the Commonwealth, the latter shall prevail, and
the former shall, to the extent of the
inconsistency, be invalid."

In a case such as the present which raises issues involving both s.109 of the Constitution and s.64 of the Judiciary Act, the constitutional provision, as the basic law, must receive prior consideration. To attribute to s.64 the effect for which the appellants contend would be to construe the words of that section as disclosing a general legislative intent to finesse or sidestep that prior question of constitutional invalidity by reason of inconsistency and effectively to override, for the purposes of "any suit to which the Commonwealth ... is a party", a constitutional provision of great importance. We are unable to discern any such legislative intent in either the general or qualified ("as nearly as possible") words of s.64.

7. In any event, the submission misunderstands the import of s.64. That section was intended to fill what would otherwise be lacunae or gaps in the law of the Commonwealth. It is not to be understood as intended to have the practical effect of overriding s.109 of the Constitution by indirectly applying a provision of a law of a State to circumstances to which its direct application is invalidated by reason of inconsistency with a provision of an existing law of the Commonwealth. A fortiori, s.64 should not be construed as intended to manufacture a new kind of indirect inconsistency between a provision of a State law and a provision of a law of the Commonwealth by applying a provision of a State law to a situation to which it does not purport to apply in circumstances where, if rendered directly applicable, it would be relevantly inconsistent with the direct operation of the provision of the law of the Commonwealth. Rather, the section should and must be construed as intended to extend a litigant's rights in a suit in particular circumstances only if, and to the extent that, there be no directly applicable and inconsistent (in the relevant sense) Commonwealth law already regulating those circumstances. It follows that if examination of the relevant law leads to the conclusion that the State Act is inconsistent with the Commonwealth Act with the result that by force of s.109 of the Constitution the State Act cannot directly apply to the Commission in respect of its engagement and dismissal of staff then, whatever other difficulties may have confronted the appellants in their attempted reliance upon s.64 of the Judiciary Act, there remains no foothold at all for an argument invoking that section.

8. It will be apparent from this discussion that the question of inconsistency has assumed a central place in this case. It is therefore convenient to turn first to that question. The Commission maintains, and the appellants deny, that the provisions of the State Act upon which the appellants rely are relevantly inconsistent with provisions of the Commonwealth Act.

9. The Commonwealth Act establishes the Commission as a body corporate with perpetual succession: ss.5, 24. Part V (ss.37-73) deals with the staff of the Commission. The provisions in that Part which are of particular relevance are the following:

"41. (1) For the purpose of enabling the
Commission to perform its functions under
this Act, there is hereby established an
Australian Postal Commission Service.

(2) The Service consists of the persons
appointed as officers or employed as
employees in accordance with this Part
..."

We pause to observe that the definitions of "officer" and "employee" in s.3 make it plain that the phrase "persons appointed as officers" refers to those persons who are, in effect, permanent servants of the Commission while the phrase "persons ... employed as employees" refers to temporary servants of the Commission.

"42. (1) The Commission may appoint as officers
such number of persons as it thinks
necessary for the purposes of this Act.

(2) A person shall not be appointed as an
officer unless -

(a) the Commission is satisfied, after
he has undergone a medical
examination required by the
Commission, as to his health and
physical fitness;

(b) he possesses such educational
qualifications, or meets such other
requirements (if any), as are
determined by the Commission; and

(c) the Commission is satisfied that he
is a fit and proper person to be an
officer.

45. (1) The Commission may engage persons as
temporary employees.

46. (1) Subject to this Part, officers and
employees hold office on such respective
terms and conditions as the Commission
determines.

51. (1) The Commission may determine that a
person shall not be appointed ... to a
specified position, or to a position
included in a specified class of
positions, unless the person ...
possesses such qualifications, and
complies with such conditions, as are
specified in the determination."

10. The provisions of the State Act upon which the appellants rely in relation to their complaint against the Commission of sex discrimination are found in ss.25 and 113. So far as material, s.25 provides:

"(1) It is unlawful for an employer to discriminate
against a person on the ground of his sex -

(a) in the arrangements he makes for the
purpose of determining who should be
offered employment;

(b) in determining who should be offered
employment; or

(c) in the terms on which he offers
employment.

...

(2) It is unlawful for an employer to discriminate
against an employee on the ground of his sex -

(a) in the terms or conditions of employment
which he affords him;

(b) by denying him access, or limiting his
access, to opportunities for promotion,
transfer or training, or to any other
benefits associated with employment; or

(c) by dismissing him or subjecting him to
any other detriment.

..."

Section 113, as amended by the Anti-Discrimination (Amendment) Acts of 1981 and 1982, provides, so far as material:

"After holding an inquiry, the Tribunal may -

(a) dismiss the complaint the subject of that
inquiry; or

(b) find the complaint substantiated and do any
one or more of the following:-

(i) ... order the respondent to pay to the
complainant damages not exceeding
$40,000 by way of compensation for any
loss or damage suffered by reason of the
respondent's conduct;

(ii) make an order enjoining the respondent
from continuing or repeating any conduct
rendered unlawful by this Act or the
regulations;

(iii) ... order the respondent to perform any
reasonable act or course of conduct to
redress any loss or damage suffered by
the complainant;

(iv) make an order declaring void in whole or
in part and either ab initio or from
such other time as is specified in the
order any contract or agreement made in
contravention of this Act or the
regulations; or
(v) decline to take any further action in
the matter."

11. The appellants complain of two distinct acts of discrimination: first, in respect of their applications for permanent employment; secondly, in respect of their dismissal from temporary employment. It is convenient to consider each complaint separately. With respect to the appointment of an officer, the powers of the Commission conferred by s.42 of the Commonwealth Act are detailed and far-reaching. Indeed, the section goes beyond the investing of powers in the Commission. It imposes a duty which the Commission may not disregard. A person shall not be appointed as an officer unless, inter alia, the Commission is satisfied as to his health and physical fitness and unless he meets such other requirements as the Commission may determine. But it is said for the appellants that the broad discretions that are here conferred upon the Commission are not unfettered. They must be exercised reasonably and it is not to be supposed that their exercise was intended to be an occasion for discriminatory practices whether on the basis of sex or race or disability. Reference was made to the "Convention Concerning Discrimination In Respect Of Employment And Occupation" which appears as Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). All this may be conceded. Of course the Commission is to act responsibly in discharge of the duties and exercise of the powers which form its mandate under the statute. But this is not to say that the Commonwealth Parliament intended that the employment policies devised and implemented by the Commission are to be subject to the supervision of State laws in all their variety from State to State: cf. Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30, per Fullagar J. at pp 68-69. The Parliament has made its own provision for maintaining the propriety of decisions made, inter alia, by Commonwealth instrumentalities such as the Commission (see, for example, the Racial Discrimination Act 1975; Administrative Decisions (Judicial Review) Act 1977; Sex Discrimination Act 1984).

12. But apart from these considerations, the appellants' denial of any relevant inconsistency must founder on the plain words of s.42. The Commission, in exercise of the positive authority conferred by s.42, determined that an applicant for permanent appointment to the Australian Postal Commission Service must achieve the minimum body weight prescribed for a person of her body height and sex. Yet the Tribunal is asked to find that the determination is unlawful and to award damages against the Commission. Presumably, had the appellants sought to invoke the further powers conferred on the Tribunal by s.113 of the State Act the Tribunal might have ordered the Commission to redress the loss or damage suffered by the appellants by granting their applications for permanent appointment, resulting in a clear usurpation by the Tribunal, under the authority of the State Act, of the responsibility resting on the Commission under the Commonwealth Act. Sections 25 and 113 of the State Act are clearly in collision with s.42 of the Commonwealth Act and must therefore, by force of s.109 of the Constitution, give way. The same direct inconsistency appears between those provisions of the State Act and s.51 of the Commonwealth Act which empowers the Commission, inter alia, to determine that a person shall not be appointed to a specified position unless he or she complies with such conditions as are specified in the determination.

13. The relevant principle was discussed by Mason J., as his Honour then was, in Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley [1980] HCA 8; (1980) 142 CLR 237, at p 260, in a passage which was later quoted in the joint judgment of Wilson, Deane and Dawson JJ. in Commercial Radio Coffs Harbour Ltd. v. Fuller [1986] HCA 42; (1986) 60 ALJR 542, at p 546; [1986] HCA 42; 66 ALR 217, at p 224. The passage reads as follows:

"If, according to the true construction of the
Commonwealth law, the right is absolute, then it
inevitably follows that the right is intended to
prevail to the exclusion of any other law. A State
law which takes away the right is inconsistent
because it is in conflict with the absolute right
and because the Commonwealth law relevantly
occupies the field. So also with a Commonwealth
law that grants a permission by way of positive
authority. The Commonwealth legislative intention
which sustains the conclusion that the permission
is granted by way of positive authority also
sustains the conclusion that the positive authority
was to take effect to the exclusion of any other
law. Again it produces inconsistency on both
grounds: cf. Airlines of New South Wales Pty.
Ltd. v. New South Wales (No. 2) [1965] HCA 3; (1965) 113 CLR
54, where the permission for which Commonwealth law
provided was neither absolute nor comprehensive."

14. The same conclusion must follow with respect to the action of the Commission dismissing the appellants from their temporary employment. Section 46 of the Commonwealth Act arms the Commission with positive authority to determine the terms and conditions upon which temporary employees hold office. It was therefore competent for the Commission to determine that it was a condition of the continued engagement of the appellants as temporary employees that they achieve the minimum body weight prescribed for a person of their body height and sex. In that circumstance, the State Act cannot be permitted to characterize the dismissal of the appellants, consequent on their failure to achieve that minimum body weight, as unlawful, thereby exposing the Commission to the jurisdiction of the Tribunal to make the orders contemplated by s.113. Here again, ss.25 and 113 of the State Act are, by reason of s.109 of the Constitution, invalid in their purported application to the Commission.

15. In the submissions advanced for the appellants, reliance was placed on the decision of this Court in Wardley. In that case it was held that the provisions of an agreement registered under the Conciliation and Arbitration Act 1904 (Cth), dealing with certain particular aspects of the employment relationship between employer and employee, did not evince an intention to exclude the operation of a Victorian law outlawing sex discrimination in relation to the termination of employment. The award dealt with the procedures governing the termination of employment but not with the grounds upon which the employment might be terminated. It was seen therefore to be intended to operate against the background of the general law, both common law and statutory, relating to the contract of employment. There was no difficulty then in the circumstances of that case, in allowing full rein to the State legislation. A different result emerged, however, in the analogous case of Metal Trades Industry Association v. Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; (1983) 152 CLR 632. A number of awards made under the Conciliation and Arbitration Act contained provisions for the termination of employment on notice and the period of notice, dismissal for misconduct without notice and the rights of an employee to wages in consequence of termination or dismissal. The Employment Protection Act 1982 (N.S.W.) required employers to give to the State Industrial Registrar a notice of their intention to terminate the employment of any employee, except in the case of termination for misconduct, and conferred on the State Industrial Commission power to make orders in relation to dismissed employees, including orders for severance pay, payment of gratuities and superannuation benefits. The State legislation was held to be inconsistent and therefore invalid in its application to the employment relationships governed by the awards. The position was described succinctly in the following passage of the joint judgment of Gibbs C.J., Wilson and Dawson JJ., at p.644:

"In our opinion, these provisions (that is, of
the State legislation) plainly interfere with the
relationship of employer and employee as
established by the awards with respect to the
termination of the employment. Both in
subject-matter and effect, Pt II of the State Act
is dealing precisely with the same topic as is
covered by the awards, namely, the procedure which
the employer must observe if he wishes to terminate
the employment. On their proper construction, the
awards do not leave any room for a State law to
attach additional obligations on an employer in
consequence of a termination of employment under
the awards. In attempting to do so the State Act is
inconsistent with the awards."

16. Illustrative though these cases are of the operation of s.109 of the Constitution in a situation where it is said that a State law is inconsistent with the provisions of an award made or agreement registered under the Conciliation and Arbitration Act, it must be remembered that in those circumstances the question of inconsistency can arise only because of the provisions of s.65 of that Act. The cases therefore are to be understood in the way explained by the Court in T.A. Robinson & Sons Pty. Ltd. v. Haylor [1957] HCA 76; (1957) 97 CLR 177, at p 182 and discussed again in the Metal Trades Case to which we have referred: see at pp 641-642, 646, 648-652.

17. A decision which bears a more direct analogy to the present case is Australian Broadcasting Commission v. Industrial Court (S.A.) [1977] HCA 51; (1977) 138 CLR 399. Section 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (S.A.) empowered the Industrial Court of South Australia to determine whether the dismissal of an employee was harsh, unjust or unreasonable and to order the re-employment of the employee in his former position on terms that were not less favourable to the employee than if he had not been dismissed. The jurisdiction of the Industrial Court was invoked by a temporary employee of the Broadcasting Commission who challenged his dismissal. The question was whether s.15(1)(e) was inconsistent with the provisions of the Broadcasting and Television Act 1942 (Cth). Division 2 of Pt III of that Act conferred detailed powers on the Broadcasting Commission with respect to the engagement, promotion, tenure of office and discipline of its officers. However, the only material provisions which referred to temporary employees were s.43(2) which directed that "The Commission shall appoint such other officers, and engage such temporary employees, as it thinks necessary", and s.43(6) which authorized the Commission, with the approval of the Public Service Board, to determine the terms and conditions of employment of its officers and temporary employees. The Court held that the Industrial Court could not validly direct the Commission to re-employ a former officer or temporary employee. Stephen J. saw the case as one of direct collision between a law of the Commonwealth and a law of a State, saying, at p.406:

"Inconsistency may manifest itself in a
variety of ways, some producing direct collision
between State and Commonwealth legislation, others
involving indirect, and hence more subtle,
contrariety. The present appeal involves, in my
view, an instance of the former, powers conferred
by Commonwealth legislation are disclosed as
purporting to be dealt with by State legislation in
a manner which impairs and may even inhibit their
exercise."

Mason J., with whose judgment Barwick C.J. agreed, identified (at pp.415-416) an area of direct inconsistency between the State law and the provisions of the Broadcasting and Television Act which, as his Honour demonstrated, constituted a comprehensive and exclusive code regulating the appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission. His Honour acknowledged that the provisions of the Act dealing with temporary employees were less detailed and less comprehensive than those dealing with officers and that there was consequently no direct conflict with the provisions of the State law. However, his Honour nevertheless discerned an intention to cover the field of appointment and dismissal of temporary employees to the exclusion of any State law on the topic. At p.417, his Honour added:

"To me it is inconceivable that the Broadcasting
and Television Act, whilst intending to exclude the
operation of a State law providing for the
reinstatement of dismissed officers, should
contemplate the operation of such a law in relation
to temporary employees whose services have been
terminated. The absence in relation to temporary
employees of the detailed provisions which delimit
the rights of officers is to be explained by the
fact that it is usual to safeguard the rights and
privileges of officers in a permanent service
analogous to a public service by detailed
provisions which qualify the rights of the employer
to deal with the employee. It is otherwise with
employees who are temporary and who do not form
part of the permanent service. The absence of
detailed provisions applying to them is not an
indication that it is contemplated that other laws
will apply to them, but rather that the employer
has an unqualified authority to make decisions
affecting their employment and the termination of
their services."

These observations are relevant and applicable in their entirety to the second limb of the present case, that which concerns the powers of the Commission to dismiss a temporary employee.

18. For these reasons, the provisions of ss.25 and 113 of the State Act can have no application to the Commission. They are inconsistent, within the meaning of s.109 of the Constitution, with the provisions of the Act conferring on the Commission its powers and responsibilities with respect to its staff. This conclusion makes it unnecessary to consider the other arguments advanced by the Commission in support of its objection to the jurisdiction of the Tribunal.

19. In each case, the appeal should be dismissed.

ORDER

Appeal dismissed.

No order as to costs.