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HREOC Report No. 26

Report of an inquiry into a complaint by Mr Kenneth Douglas of age discrimination
in the Australian Defence Force

HREOC Report No. 26

© Commonwealth of Australia 2004.

The Hon Philip Ruddock MP

Attorney-General

House of Representatives

Parliament House

CANBERRA ACT 2600

Dear Attorney,

Pursuant to s 31(b)(ii) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth), I attach, on behalf of the Commission,
a report of an inquiry conducted by my predecessor, Professor Alice Tay.
The inquiry dealt with a complaint of discrimination in employment by
Mr Kenneth Douglas against the Commonwealth of Australia (Australian Defence
Force).

Professor Tay completed her inquiry on 10 February 2003 and provided
her findings and recommendations to the Commonwealth. The Commonwealth
instigated proceedings under the Administrative Decisions (Judicial
Review) Act 1977 (Cth) for a review of Professor Tay's findings. The
Commonwealth discontinued the proceedings on 2 September 2003. As the
Commonwealth has discontinued its legal proceedings, the Commission is
now able to report to you in relation to the inquiry.

Yours sincerely,

The Hon. John von Doussa

President

February, 2004

Table of Contents

1. Introduction

1.1 The Commission's jurisdiction

This report to the Attorney-General concerns an inquiry by the Human
Rights and Equal Opportunity Commission (Commission) into a complaint
made by Mr Kenneth Douglas on 31 January 2001. The complaint is against
the Commonwealth of Australia (Australian Defence Force) under the Human
Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).
The complaint was made pursuant to s 32(1)(b) of the HREOC Act, which
provides for a complaint to be made in writing to the Commission alleging
that an act or practice constitutes discrimination (as defined in s 3
of the HREOC Act).

The Commission's functions in relation to the investigation and conciliation
of complaints of discrimination and in relation to reporting to the Minister
on complaints with substance that have not been resolved through the process
of conciliation are outlined in Appendix 1 to this report.

This inquiry was undertaken and completed by Professor Alice Tay who
was, at the relevant time, the President of the Commission. Professor
Tay's appointment as President came to an end on 30 May 2003.

1.2 Outline of the complaint

Mr Douglas' complaint alleged discrimination in his employment on the
ground of his age in relation to certain promotional opportunities. Mr
Douglas joined the Royal Australian Navy (RAN) of the Australian Defence
Force (ADF) in 1997 after serving in the Royal Navy for some years. Since
the date of joining the RAN to the present, Mr Douglas has held the position
of Petty Officer (PO). Mr Douglas was recommended by his senior officer
to appear before an Officer Selection Board (OSB) of the RAN in November
1998. Appearing before the OSB would have provided Mr Douglas with the
opportunity to be considered for promotion to an officer level as a Direct
Entry Seaman. However, the respondent refused to allow him to appear before
the November 1998 OSB. Mr Douglas alleged the reason for the refusal was
his age.

1.3 Findings and recommendations

On 10 February 2003, Professor Tay issued a Notice of her findings and
recommendations in relation to the complaint under s 35(2) of the HREOC
Act. She found that the act complained of by Mr Douglas, namely that the
respondent refused to allow him to appear before an OSB in November 1998,
constituted discrimination on the basis of age. Professor Tay recommended
that the respondent should pay to the complainant the sum of $15,000.00,
being general damages and loss of opportunity, and provide a written apology
to the complainant.

1.4 Actions taken by the respondent as a result of
the findings and recommendations made on 10 February 2003

Under s 35(2)(e) of the HREOC Act, the Commission is required to state
in its report to the Attorney-General whether the respondent has taken
or is taking any action as a result of its findings and recommendations.

The Commonwealth lodged proceedings challenging Professor Tay's findings
of 10 February 2003 under the Administrative Decisions (Judicial Review)
Act 1977 (Cth). On 2 September 2003, the Commonwealth discontinued
those proceedings.

Following the discontinuance of those proceedings, the Commission wrote
to the respondent's legal representatives seeking their advice as to what
action the respondent proposed to take as a result of Professor Tay's
findings and recommendations. In a letter to the Commission dated 28 October
2003, the respondent's legal representatives advised as follows:

I now have instructions that a cheque has been requisitioned
to pay Mr Douglas the amount recommended by HREOC. The cheque will be
accompanied by an apology in the form of a letter of regret from the navy
- the exact terms of the expression of regret have not been finalised.

The Commission is now in a position to report to the Attorney-General
as required by s 31(b)(ii) of the HREOC Act.

2. Background Facts

Professor Tay provided a summary of the relevant facts set out in the
following way:

2.1 Promotional considerations in the ADF take place against the background
of a compulsory retirement age. In particular, s 17 of the Naval Defence
Act 1910 (Cth) (Naval Defence Act) provides that the compulsory retirement
of members of the RAN shall be prescribed. In special cases the Minister
may, by instrument in writing, extend the prescribed age for retirement
for a period not exceeding two years.

2.2 The compulsory retirement ages for officers are prescribed by regulation
102 of the Naval Forces Regulations 1935 (Cth). It provides that
the compulsory retirement age for officers appointed to the Permanent
Naval Force[1] after 1 January 1992
is 55 years.[2]

2.3 Mr Douglas' date of birth is 26 June 1949 and he will therefore reach
the compulsory retirement age of 55 years on 26 June 2004.

2.4 The RAN policy that applied in relation to Mr Douglas at the relevant
time was contained in a document entitled "ABR 10 Sailors Career Management
Manual", in particular, chapter 10 of that document entitled "Nomination
and selection of sailors for commissioned rank".[3]
Annexure A to Chapter 10 details the entry requirements and selection
procedure for the sailor entry scheme. This provides that officer candidates
"are normally over 17 and under 45 years of age on the day of appointment
as an officer" and that "[a]ge waivers will be considered by ACPERS-N
subsequent to an [officer candidate's] appearance before an OSB, providing
the [officer candidate] has been assessed as competitive for the positions
available".[4]

2.5 By way of Minute dated 27 August 1998 from a Captain Clarke,[5]
Mr Douglas was recommended by his Captain and Commander to attend the
OSB of the RAN in November 1998, at which time Mr Douglas would have been
approximately 49 years and five months of age. Attendance at the November
1998 OSB would have provided him with an opportunity to be considered
for promotion to an officer level as a Direct Entry Seaman Officer. This
Minute discusses a number of aspects of Mr Douglas' training and experience,
and also includes the following discussion:

.

f. An initial PR5 on PO Douglas is forwarded as an attachment. However
it should be noted that the sailor has not been observed within CASSHQ
for the requisite period and as such his performance cannot be accurately
reflected at this stage.

2. PO Douglas has shown great perseverance in his quest to progress
his career as an officer in the RAN. He is not eligible because of his
age. However, should he be considered suitable at a selection board
it is recommended that an age waiver be granted.

3. We have not known PO Douglas long enough to be able to determine
whether he has the necessary attributes to become an officer. However,
since he is now 49 any delay might be disproportionately prejudicial
to his chance of selection. His application is therefore forwarded with
a recommendation that he appear before an Officer Selection Board.

2.6 In the Minute dated 27 August 1998, Captain Clarke, in line with
the terms of the policy outlined in 2.4 above, sought consideration of
the granting of an age waiver to Mr Douglas should he be considered suitable
for selection. It would seem that Mr Douglas separately applied for an
age waiver, as on 23 October 1998 a Minute[6]
was furnished by Commander S.E. Manning on behalf of the Directorate of
Naval Officers' Postings (DNOP). It relevantly provided as follows:

At DSCM[7] minute 10674/98
of 23 Sep 98, PO Douglas' request for age waiver was forwarded for consideration,
to allow him access to the Direct Entry Officer Selection Board. This
request has been considered, however, is denied. As there are only eight
DE SMN[8] positions on offer for 99
entry, and an oversupply of applicants who are eligible for these positions,
there is no requirement for DNOP to grant waivers to meet the recruiting
target. PO Douglas is not educationally qualified for TS.[9]

It would seem from this statement that the policy outlined at 2.4 above
was not followed. A decision was made not to grant Mr Douglas an age waiver
before an assessment was made of his suitability to appear before the
OSB.

2.7 Mr Douglas sought clarification of the decision of Commander Manning.
This request was conveyed in a Minute dated 9 February 1999 from Captain
Shalders to the attention of Lieutenant Commander Frost. That Minute relevantly
states as follows:

Apart from age, POEWASM Douglas meets all criteria in accordance
with References B,[10] C, [11]
and D[12]. Additionally, although
he had not at the time been observed for the requisite period, it was
recommended that PO Douglas appear before an Officer Selection Board (Reference
E).[13] As a result PO Douglas has
formed the belief that he has been denied access to an Officer Selection
Board solely because of his age.

2.8 Captain Gates provided a response dated 15 February 1999.[14]
The response stated that the following considerations were considered
pertinent:

  1. as indicated [in the Minute dated 23 October 1998], there were no
    compelling service reasons to justify a waiver
  2. the advice [in the Minute dated 27 August 1998, referred to at paragraph
    2.5 above] that PO Douglas had not been observed for sufficient time
    for his officer potential to be determined by the nominating officer;
  3. the granting of an age waiver, particularly noting the preceding sub-paragraph
    had the potential to prejudice the chances of other officer candidates
    who fully met the eligibility criteria;
  4. noting [the compulsory retirement age] of 55 years, PO Douglas' post
    [primary qualification] award employment potential is seriously limited;
    and
  5. as the Navy's potential to recruit qualified SMN[15]
    officers is minimal, there is a compelling need to appoint officers
    who have the potential to productively serve, at a minimum, as a sub-specialist.
    This is despite the ideal being completion of the LCDR[16]
    Charge Program if not seagoing command as a CMDR[17].

2.9 Mr Douglas instituted an internal grievance procedure by submitting
an application for redress of grievance on 3 June 1999.

2.10 On 13 July 1999, Mr Douglas was provided with a response to his
application for redress of grievance prepared by Commander A.H. Johnston.[18]
The application for redress was rejected.[] It referred to
the reasons set out in paragraph 2.8 above and advised that Mr Douglas
"failed to meet other important eligibility criteria in order to be selected
to appear before an Officer Selection Board. That criteria (sic) involved
a reporting history which would substantiate a recommendation that [Mr
Douglas'] performance was such that it would qualify [him] for Officer
Entry. DNOP considered that [Mr Douglas] did not meet this criteria (sic)and
that [he] also exceeded the upper age limit for transfer to commissioned
rank."[20]

2.11 In the response dated 13 July 1999, Commander A.H. Johnston also
discussed the exception contained in s 3(1) of the HREOC Act which provides
that a distinction made on the basis of age in a particular job will not
be discriminatory if it is based on the inherent requirements of the job.
He stated that the factors relevant to an assessment of the inherent requirements
of the job in this case included the length of service remaining until
Mr Douglas' statutory retirement age, the length of pre-requisite courses,
whether Mr Douglas would be able to fulfil any return of service obligation
(ROSO), how long Mr Douglas would serve as a fully trained officer before
he retired, and, accordingly, the "burden" on the ADF. Commander Johnston
explained the concept of ROSO as "the minimum requirement to acquit expensive
training investment in personnel and personnel would be expected to continue
to serve after completion of a ROSO".[21]

2.12 Commander Johnston provided additional information[22]
about the ROSO issue. He set out in some detail the length and nature
of the training courses that a person would have to complete to discharge
the ROSO associated with training for the role as a Direct Entry Seaman
Officer. In summary, Commander Johnston advised that from the commencement
of the relevant training course (which in Mr Douglas' case would have
commenced on 19 July 1999), it would take, on average, four years and
nine months to discharge a ROSO associated with Direct Entry Seaman Officer
training. Added to this figure is any additional time that it may take
for the acquisition of an A1 Bridge Watchkeeping Certificate (which could
take up to 18 months to acquire) as well as in excess of five months annual
leave acquired during the entire period plus delays caused by the non
continuous nature of the training. This amounts to a total of six years
and eight months, at which time Mr Douglas would have been approximately
56 years and eight months of age. On the basis of these calculations Commander
Johnston concluded that at the date of the November 1998 OSB, Mr Douglas
would not be able to complete the required ROSO in the time remaining
before he reached the compulsory retirement age of 55 years.[23]

2.13 By correspondence dated 7 February 2000, Mr Douglas requested that
his complaint be referred to the Chief of Navy.[24]
The respondent has advised that Mr Douglas originally requested that his
complaint be referred to the Chief of Navy in late 1999, but that Divisional
Staff delayed in forwarding the relevant documentation.[25]

2.14 By a Minute dated 20 October 2000, Lieutenant Commander A.L. Franklin
advised that Mr Douglas was eligible to attend the November 2000 OSB,
subject to him confirming his volunteer status. That Minute also stated
that all paperwork associated with Mr Douglas' original application would
be resubmitted to the OSB, along with all performance reports rendered
since August 1998 and certain other updated documentation.[26]

2.15 In correspondence provided to the Commission,[27]
the respondent advised that the decision to allow Mr Douglas to attend
the November 2000 OSB resulted from a meeting between the Complaint Resolution
Agency of the Department of Defence, the DNOP and the Directorate of Sailors
Career Management. The meeting was convened with the "objective of seeking
an administrative resolution". It was agreed that Mr Douglas' age at the
time of the November 1998 OSB, "while not a specific reason for him being
denied the opportunity to appear before the OSB, may have been a contributing
factor noting that his employment potential beyond initial training was
severely limited. As there were only limited SMN training positions available
at the time, there was a compelling need to appoint those who had the
potential to productively serve, to a minimum, to a sub-specialist level."
It was further agreed that an "increased SMN recruiting target potentially
place[d] PO Douglas in a more competitive position . provided that he
meets all other officer nomination criteria."[28]

2.16 In correspondence dated 23 October 2000,[29]
Mr Douglas declined the offer to appear before the November 2000 OSB.
Mr Douglas made this decision on the basis that he would "be unable to
achieve [his] desired career objectives in the short time remaining before
compulsory retiring age". In light of the fact that more than two years
had lapsed since he was denied an age waiver, he could not "in all honesty,
believe that [the decision to allow him to sit the November 2000 OSB]
isn't just simply to placate [him]".

2.17 In a letter from Commodore L.J. Rago to Mr Douglas dated 7 November
2000,[30] Commodore Rago stated that:

I agree with the recommendation of the Directorate of Sailors
Career Management that you be permitted to appear before the November
2000 Officer Selection Board and your suitability be assessed in conjunction
with your initial application of 1998. It may be pertinent for you to
consider that subject to you achieving all the prerequisites needed to
become a fully qualified seaman officer, that your compulsory retirement
age could if needed, be extended for a further period of up to two years
at the discretion of the Chief of Navy. In essence, I see no reason why
you should not take advantage of the opportunity to appear before the
November 2000 Board.

In relation to Mr Douglas' comment that more than two years had passed
since he had been denied an age waiver, Commodore Rago stated:

I sympathise with your frustration that it has taken nearly
two years to resolve your complaint. However, a majority of the delay
has been contributed in part by the time taken by you to submit your initial
redress, and your subsequent decision to refer the matter to Chief of
Navy.

2.18 Mr Douglas did not appear before the November 2000 OSB.

3. Relevant Legal Framework

Section 3(1) of the HREOC Act defines "discrimination" as follows:

  1. 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
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity
      or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute discrimination
      for the purposes of this Act;

    but does not include any distinction, exclusion or preference:

  3. in respect of a particular job based on the inherent requirements
    of the job.

Regulation 4(a)(i) of the Human Rights and Equal Opportunity Regulations
1989 (Cth) provides that a distinction, exclusion or preference made on
the ground of age will constitute discrimination for the purposes of sub-paragraph
(b)(ii) of the definition of "discrimination" in s 3 of the HREOC Act.[31]

Section 31(b) of the HREOC Act confers on the Commission the function
of inquiring into "any act or practice, including any systemic practice,
that may constitute discrimination" and, where the Commission considers
it appropriate to do so, to endeavour, by conciliation, to effect a settlement
of the matters that gave rise to the inquiry.

Section 31(b)(ii) provides that where the Commission is of the opinion
that the act or practice constitutes discrimination, and has endeavoured
without success to reach a settlement, it will report to the Minister
in relation to the inquiry.

Section 35 of the HREOC Act sets out the requirements of the Commission's
report and the recommendations that may be made. Section 35(2) provides:

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:

  1. shall serve notice in writing on the person setting out its findings
    and the reasons for those findings;
  2. may include in the notice any recommendations by the Commission
    for preventing a repetition of the act or a continuation of the practice;
  3. may include in the notice any recommendation by the Commission
    for either or both of the following:

    1. 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;
    2. the taking of other action to remedy or reduce loss or damage
      suffered by a person as a result of the act or practice.

4. Inquiry Process

As a result of inquiries and investigation into this complaint, the parties
were provided with a document entitled 'Report of an unconciliable complaint
under the Human Rights and Equal Opportunity Commission Act 1986',
dated 19 April 2002, which contained Professor Tay's preliminary finding
that the respondent had discriminated against the complainant within the
terms of s 3(1) of the HREOC Act on the basis of his age.

After issuing that report, the respondent was invited to make further
submissions pursuant to ss 27 and 33(d) of the HREOC Act. The respondent
provided a written response by letter dated 15 May 2002. The details of
the response are set out under heading 5 below.

5. Respondent's Response to Preliminary Finding

By letter dated 15 May 2002, Ms A.C. Mantel, Directorate of Litigation,
The Defence Legal Service, provided comments on the preliminary findings
as follows:

With respect to the preliminary findings, the following is noted. It
is clear that in Aug 98 when PO Douglas applied to the OSB, that the
extant policy had a discretionary aspect in deciding whether to permit
an application to proceed. Where an applicant such as PO Douglas, did
not comply with other requirements, such as having had his performance
observed for three months, it was not unreasonable for that discretion
to be exercised adversely to PO Douglas' wishes. In that respect, while
we would concede that his age was one factor in being denied this opportunity,
it was not the only significant reason.

I note your reference to earlier Court decisions which have not accepted
economic considerations as a basis for discriminating against a person
during the course of employment. However I would suggest that there
is a proper integral economic condition in offering promotional opportunities
where there is a high expense in training a person to take on additional
responsibilities. Indeed, there is an expectation under the Financial
Management Act 1997 that the ADF will consider the return on its
investment in any member, regardless of his/her age. This is reflected
by the fact that every enlistment carries with it a stated minimum Return
of Service (ROSO) period which relates to the length of training undertaken
by the person.

Moreover, the ADF has a statutory upper age limit on a member's capacity
to give effective service unlike a 'normal' employer, for example, the
Australian Public Service, which is an additional factor that distinguishes
the situation of the ADF from that of other employers. That age limit
clearly demands that a member must have the capacity to provide ROSO
consequent upon promotion.

It is this Department's opinion that when the ADF recognised that it
should reconsider its policy in relation to PO Douglas' application
to appear before the OSB, it acted promptly to facilitate his attendance
at the next OSB. At that time, it was still possible for him to fully
meet his ROSO requirements if he had been appointed as an officer[32]
but he did not accept that opportunity, preferring to take a more litigious
approach. We suggest that the facts of this case do not provide the
Commission with a basis to generalise that discriminatory conduct on
the basis of age is widespread.

We believe that the ADF has responded appropriately to the allegations
of discriminatory conduct in the application for age limits by implementing
more equitable procedures. On that basis, we request that you review
your preliminary findings and terminate this complaint.

In the same correspondence, Ms Mantel also stated that:

Navy made a bona fide attempt to rectify the situation so that
PO Douglas was not in any way disadvantaged by the previous decision,
nevertheless PO Douglas decided not to avail himself of that opportunity.
However it is our view that the results of the conference were significant
in that the policy to restrict age limits for officer applications was
changed such that now there is no age limitation for sailor entry appointments.

6. Findings

In deciding whether there has been "discrimination" within the terms
of s 3(1) of the HREOC Act (read with regulation 4 of the Regulations),
Professor Tay considered the following matters:

  • whether there was an act or practice within the meaning of s 3(1)
    of the HREOC Act;[33]
  • whether that act or practice involved a distinction, exclusion or
    preference that was made on the basis of the complainant's age;
  • whether that distinction, exclusion or preference had the effect of
    nullifying or impairing equality of opportunity or treatment in employment
    or occupation; and
  • whether that distinction, exclusion, or preference was based on the
    inherent requirements of the job.[34]

The findings made by Professor Tay are set out in full as follows.

6.1 Whether there was an act or practice within the
meaning of s 3(1) of the HREOC Act

I find that the refusal to allow Mr Douglas the opportunity to appear
before the November 1998 OSB was an "act" within the meaning of the HREOC
Act.

6.2 Whether that act involved a distinction, exclusion,
or preference on the basis of age

I need to be satisfied on the balance of probabilities that the refusal
to allow Mr Douglas to appear before the November 1998 OSB was on the
basis of his age.

There appears to be no direct case law to assist in the interpretation
of the words "on the basis of". In considering the expression "based
on", in a similar definition of discrimination under s 9(1) of the
Racial Discrimination Act 1975 (Cth),[35]
the Federal Court held that the words were to be equated with the phrase
"by reference to", rather than the more limited "by reason of":
Victoria v Macedonia Teacher's Association of Victoria Inc (1999)
91 FCR 47.

As previously noted, the policy reflected in the ABR 10 Sailor's Career
Management Manual had the effect that a person would not normally be considered
for promotion to officer level unless they were between the ages of 17
and 45 years on the day of appointment as an officer. If a person was
older than 45 years on the day of appointment as an officer, then an age
waiver would be considered, as long as the person was assessed as otherwise
competitive for the position available.

The Minute dated 23 October 1998 from Commander Manning on behalf of
the DNOP[36] was the document prepared
in order to reflect the reasons for the decision of the DNOP. This stated
that as there "are only eight DE SMN positions on offer for 99 entry,
and an oversupply of applicants who are eligible for these positions,
there is no requirement for DNOP to grant waivers to meet the recruiting
target". In my view, this comment can be restated as follows: even if
an applicant over the age of 45 years at the date of appointment as an
officer could have satisfied other requirements considered necessary in
order to appear before the November 1998 OSB, it was not considered necessary
to grant any age waivers because of the over supply of eligible applicants
for the limited number of direct entry seaman positions on offer.

It is therefore clear to me, certainly on the basis of this Minute, that
the reason for the decision not to allow Mr Douglas to appear before the
November 1998 OSB was on the ground of his age.

6.2.1 Other reasons relied on by respondent

As set out previously, a number of other reasons have been relied on
by the respondent to support its decision to deny Mr Douglas the opportunity
to appear before the November 1998 OSB and to support its contention that
Mr Douglas' age was not the only reason. For the purposes of determining
this aspect of Mr Douglas' complaint, I am of the view that the relevant
section of the HREOC Act does not require Mr Douglas to establish that
age was the sole reason or dominant reason for the refusal to allow him
to appear before the November OSB, but merely that it was a reason.[37]

However, I find it useful at this point to consider the other reasons
relied on by the respondent particularly as this may be relevant to any
consideration of appropriate recommendations, including in relation to
the payment of compensation, under s 35(2)(c) of the HREOC Act.

As noted previously, Mr Douglas sought clarification of the decision
dated 23 October 1998. A response was provided in a Minute dated 15 February
1999, the details of which are set out at paragraph 2.8 above. It is somewhat
difficult for me to assess the appropriate weight to give to these reasons
because, apart from one (being that "there were no compelling Service
reasons to justify a waiver" which appears to reflect the position set
out in the Minute dated 23 October 1998), no reference was made to those
reasons in the original Minute dated 23 October 1998. However, in the
event that an argument could be put that there was an implicit reference
to these reasons in the Minute dated 23 October 1998, I make the following
comments.

In the Minute dated 15 February 1999, a reference is made to the fact
that Mr Douglas had not been observed for a sufficient time in order that
his officer potential could be determined by the nominating officer (see
2.8(b) above). I note that the recommendation supporting Mr Douglas' application
notes that this was the case, but his supervising officers considered
it nevertheless appropriate to recommend that he be considered for promotion
to officer level. I also note in relation to this point that in his application
for redress of grievance dated 3 June 1999, Mr Douglas states as follows:

I was not observed for sufficient time through no fault of my
own. Had my career been managed properly and had I been billeted in accordance
with my category, then I would have had the opportunity to be observed
for the required, 'sufficient time'.

As set out at 2.8(c) above, the Minute dated 15 February 1999 comments
that particularly noting this point, the granting of an age waiver, "had
the potential to prejudice the chances of other officer candidates who
fully met the eligibility criteria".

I also note that in the respondent's response dated 15 May 2002[38]
to my preliminary findings, the length of time that Mr Douglas had been
observed was again referred to as being one of the factors that led to
the decision not to grant Mr Douglas an age waiver.

Although it is apparent from the Minute dated 23 October 1998 that age
was a basis for the decision, I accept the submission made by the respondent
that the period of observation was also a factor. Again it would seem
that the policy outlined at 2.4 above was not followed in that a decision
was made not to grant Mr Douglas an age waiver before an assessment was
made of his suitability to appear before the OSB.

The next point made in the Minute dated 15 February 1999, as reflected
in 2.8(d) above, suggests that in light of the compulsory retirement age
of 55 years mandated by the Naval Defence Act and associated regulations,
Mr Douglas' post primary qualification potential was seriously limited.
It was also noted, as reflected in 2.8(e), that because the RAN's potential
to recruit qualified seaman officers is minimal, there is a compelling
need to appoint officers who have the potential to productively serve,
at a minimum, as a sub-specialist. This is despite the ideal being completion
of the Lieutenant Commander Charge Program, if not seagoing command as
a Commander.

I note that on their face, these comments could be interpreted as suggesting
that in order for a sailor to be eligible for promotion to officer level
as a seaman, it is a requirement that sailors have the potential to serve,
at a minimum, at a sub-specialist level and progress to higher ranks.
These comments also appear to suggest that, because of the statutorily
imposed compulsory retirement age, the ability of Mr Douglas to satisfy
this requirement was seriously limited. If this correctly reflects the
import of the comments at 2.8(d) and 2.8(e), then the onus would have
been on the respondent to establish that such a requirement was an inherent
requirement.[39] However, the respondent
had not pursued this issue in further correspondence and I am not satisfied
that it formed part of the decision reflected in the Minute dated 23 October
1998 to deny Mr Douglas the opportunity to appear before the November
1998 OSB.

Finally, I note the submissions made by the respondent to the effect
that the ability to satisfy a ROSO is an inherent requirement of any position
in the RAN, that Mr Douglas could not satisfy the necessary ROSO had he
been promoted to a Seaman Officer, and that this was an additional reason
for the decision to deny Mr Douglas the opportunity to appear before the
November 1998 OSB. I am not persuaded, however, that the ability of Mr
Douglas to satisfy a ROSO for the job as a Seaman Officer was a factor
in the decision to deny him the opportunity to appear before the November
1998 OSB. I say this for the following reasons:

  • the ability to satisfy any ROSO was not mentioned in the Minute dated
    23 October 1998 nor in the Minute dated 15 February 1999;
  • the ROSO issue was first raised in the Minute from Commander Johnston
    dated 13 July 1999 responding to the redress of grievance lodged by
    Mr Douglas, approximately eight and a half months after the decision
    was originally made; and
  • even if the ROSO issue was a consideration, the Minute from Captain
    Shalders dated 9 February 1999 (referred to at paragraph 2.7 above)
    seemed to indicate that Mr Douglas met the relevant ROSO criteria set
    out in DI(N)PERS 42-9.

In these circumstances, I do not consider it necessary to decide whether
the ability to satisfy a ROSO is an inherent requirement of the job of
a Seaman Officer. I do note, however, that even if I were to consider
this matter further, the issue of whether Mr Douglas could in fact have
satisfied the ROSO at the date of the November 1998 OSB would need to
be examined further. This is because although in the Minute dated 13 July
1999, Commander Johnston advised that Mr Douglas could not satisfy the
relevant ROSO, it appears that he would have been able to satisfy the
relevant requirements set out in DI(N)PERS 42-9, which, as previously
noted, sets out the RAN's policy in relation to return of service obligations.

I therefore find that the reason for the refusal to allow Mr Douglas
the opportunity to appear before the November 1998 OSB was primarily on
the basis of his age. Another reason was the length of time that Mr Douglas
had been observed so that his officer potential could be determined.

6.3 Whether the distinction, exclusion or preference
had the effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation

For an act or practice to be discriminatory, the HREOC Act requires the
complainant to show that the distinction, exclusion or preference has
had the effect of nullifying or impairing the equality of opportunity
or treatment in employment or occupation. I find that as a result of the
refusal to allow Mr Douglas to appear before the November 1998 OSB, Mr
Douglas was not afforded equality of opportunity in employment.

6.4 Whether the distinction, exclusion or preference
was based on the inherent requirements of the job

Not all distinctions, exclusions or preferences are discriminatory within
the meaning of the HREOC Act. Under paragraph (c) of the definition of
discrimination in s 3 of the HREOC Act, a respondent does not discriminate
on the basis of age, if the distinction, exclusion or preference is based
on the inherent requirements of the job.

6.4.1 Relevant international jurisprudence

Paragraph (c) reproduces, in substance, article 1(2) of the Convention
Concerning Discrimination in Respect of Employment and Occupation
(ILO 111). The HREOC Act was "introduced to be the vehicle by which
Australia's obligations under .[ILO 111] .are implemented".[40]
As such, paragraph (c) should be construed in accordance with the construction
given in international law to article 1(2) of ILO 111.[41]

The Governing Body of the International Labour Organisation (ILO) has
created a committee known as the Committee of Experts on the Application
of Conventions and Recommendations (Committee of Experts). It is "orthodox"
to rely upon the expressions of opinion of the Committee of Experts for
the purposes of interpreting ILO 111.[42]

The meaning of article 1(2) was discussed in Chapter 3 of the Committee
of Experts' Special Survey on Equality in Employment and Occupation 1996:

Under Article 1, paragraph 2 of Convention No 111, "any distinction,
exclusion or preference in respect of a particular job based on the
inherent requirements thereof shall not be deemed to be discrimination".
This exception must be interpreted restrictively. When qualifications
are required for a particular job, it may not be simple to distinguish
between what does and what does not constitute discrimination. It is
often difficult to draw the line between bona fide requirements for
a job and the use of certain criteria to exclude certain categories
of workers. In order to determine the real scope of this exception,
the following two points should be examined: first, the concept of a
"particular job" and, second, the definition of 'inherent requirements"
of a particular job.

It appears from the preparatory work for the Convention that the concept
of "a particular job" refers to a specific definable job, function or
task. The necessary qualifications may be defined as those required
by the characteristics of the particular job, in proportion to its inherent
requirements. A qualification may be brought to bear as an inherent
requirement without coming into conflict with the principle of equality
of opportunity and treatment. In no circumstances, however, may the
same qualification be required for an entire sector of activity. Systematic
application of requirements involving one or more grounds of discrimination
envisaged by Convention 111 is inadmissible; careful examination of
each individual case is required.

Similarly, in an ILO Commission of Inquiry regarding a complaint made
against the Federal Republic of Germany,[43]
it was stated:

It needs to be borne in mind that Article 1, para 2, [of the Convention]
is an exception clause. It should therefore be interpreted strictly,
so as not to result in undue limitation of the protection which the
Convention is intended to provide.

6.4.2 Identifying "inherent requirements"

The meaning of the term "inherent requirements" has also been considered
by both the Federal Court and the High Court.

In Qantas Airways v Christie (1998) 193 CLR 280 (Christie),
the High Court considered the meaning of the term "inherent requirements
of the particular position" in s 170DF(2) of the Industrial Relations
Act 1988 (Cth). At 284, Brennan CJ stated:

The question whether a requirement is inherent in a position must be
answered by reference not only to the terms of the employment contract
but also by reference to the function which the employee performs as
part of the employer's undertaking and, except where the employer's
undertaking is organised on a basis which impermissibly discriminates
against the employee, by reference to that organisation. In so saying,
I should wish to guard against too final a definition of the means by
which the inherent nature of a requirement is determined. The experience
of the courts of this country in applying anti-discrimination legislation
must be built case by case. A firm jurisprudence will be developed over
time; its development should not be confined by too early a definition
of its principles.

At 295, Gaudron J stated:

It is correct to say, as did Gray J in the Full Court, that an inherent
requirement is something that is essential to the position. And certainly,
an employer cannot create an inherent requirement for the purposes of
s 170DF(2) by stipulating for something that is not essential or, even,
by stipulating for qualifications or skills which are disproportionately
high when related to the work to be done. But if a requirement is, in
truth, essential, it is irrelevant that it derives from the terms of
the employment contract or from the conditions governing the employment
relationship.

Much of the argument in this Court was directed to the question whether
the expression "inherent requirements" in s 170DF(2) should be construed
broadly or narrowly. It was put on behalf of Mr Christie that it should
be construed narrowly because it is an exception to or exemption from
the prohibition on termination on discriminatory grounds and a broad
construction would be contrary to the evident purpose of s 170DF, namely,
to prevent discriminatory conduct. I doubt whether s 170DF(2) is an
exception or exemption of the kind which the argument assumes. Rather,
I think the better view is that sub-s (2) is, in truth, part of the
explication of what is and what is not discrimination for the purposes
of s 170DF of the Act. However, that issue need not be explored for
there is nothing to suggest that the expression "inherent requirements"
in s 170DF(2) is used other than in its natural and ordinary meaning.
And that meaning directs attention to the essential features or defining
characteristics of the position in question.

At 316, Gummow J said that the term "inherent" suggests "an essential
element of that spoken of rather than something incidental or accidental".

Similarly, in X v The Commonwealth (1999) 200 CLR 177 (X),
Gummow and Hayne JJ stated that the inherent requirements of employment
are those which are "characteristic or essential requirements of the employment
as opposed to those requirements that might be described as peripheral".
Their Honours went on to say (at 208):

It follows from both the reference to inherent requirements and the
reference to particular employment that … it is necessary to identify
not only the terms and conditions which stipulate what the employee
is to do or be trained for, but also those terms and conditions which
identify the circumstances in which the particular employment will be
carried on. Those circumstances will often include the place or places
at which the employment is to be performed and may also encompass other
considerations. For example, it may be necessary to consider whether
the employee is to work with others in some particular way. It may also
be necessary to consider the dangers to which the employee may be exposed
and the dangers to which the employee may expose others.

In that same case, McHugh J stated (at 189-90):

Unless the employer's undertaking has been organised so as to
permit discriminatory conduct, the terms of the employment contract, the
nature of the business and the manner of its organisation will be determinative
of whether a requirement is inherent in the particular employment. But
only those requirements that are essential in a business sense (including
where appropriate public administration) or in a legal sense can be regarded
as inhering in the particular employment. The Commission must give appropriate
recognition to the business judgment of the employer in organising its
undertaking and in regarding this or that requirement as essential to
the particular employment. Thus, in Christie, Qantas had no obligation
to restructure the roster and bidding system which it utilised for allocating
flights to its pilots in order to accommodate Mr Christie. In the end,
however, it is for the Commission, and not for the employer, to determine
whether or not a requirement is inherent in a particular employment.

It follows from the cases of X and Christie that identification
of inherent requirements requires one to take into account the surrounding
context of the particular position, employment or job and not merely the
physical or mental capability of the employee to perform a task.

6.4.3 "Based on"

Once the inherent requirements of the particular job have been identified
I must decide whether the relevant exclusion, distinction or preference
is "based on" those inherent requirements.

In Commonwealth v Human Rights and Equal Opportunity Commission and
Others,[] Wilcox J interpreted the phrase as follows (at
482):

In the present case, there are policy reasons for requiring
a tight correlation between the inherent requirements of the job and the
relevant "distinction", "exclusion" or "preference". Otherwise, as Mr
O'Gorman pointed out, the object of the legislation would readily be defeated.
A major objective of anti-discrimination legislation is to prevent people
being stereo-typed; that is, judged not according to their individual
merits but by reference to a general or common characteristic of people
of their race, gender, age etc, as the case may be. If the words "based
on" are so interpreted that it is sufficient to find a link between the
restriction and the stereo-type, as distinct from the individual, the
legislation will have the effect of perpetuating the very process it was
designed to bring to an end.

The Full Court affirmed that approach in Bradley's case.[45]
In particular, Black CJ discussed the phrase "based on" as follows (at
[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.

The Chief Justice continued (at [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.

He further added (at [40]):

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.

6.4.4 "Onus"

As noted at 6.2.1 above, the respondent bears the burden of persuasion
on this issue.

6.4.5 Is it an inherent requirement of the job
of a Seaman Officer that he or she be under the age of 45 years on the
date of appointment as an officer?

In response to a direct query from the Commission as to whether it was
an inherent requirement of attending the November 1998 OSB that a person
be younger than a certain age, the RAN advised as follows:[46]

[a]lthough current policy within ABR 6289 states that sailors must
be 45 years of age on the first day of the month of appointment, age
guidelines for appointment of sailors as officers are based on an applicant's
ability to provide a period of service that provides an economical return
on the Service's investment in their officer training. The timeframe
associated with this return varies between [primary qualifications]
and training programs. The age guidelines specified by Navy are indicative
only, and are applied in much the same way as upper age limits are applied
to Direct Entry applicants. Successful applicants must be able to complete
the period of their initial fixed period of service before reaching
CRA. An initial fixed period of service is inclusive of the total training
time, plus the Return of Service Obligation (ROSO) associated with that
training, and will not be less than six years.

In this response, the RAN appeared to rely on the ROSO as the basis for
the policy concerning an upper age limit. In my view, these are separate
issues. From the information before me, a ROSO is imposed on every person
in the ADF whatever their age. Even if one accepts, for the sake of argument,
that Commander Johnston's calculations concerning the ROSO requirement
of a Direct Entry Seaman Officer were correct,[47]
then a candidate could have been, for example, up to 48 years of age at
the date of appointment as an officer and still would have satisfied that
ROSO.

It therefore seems to me that the upper age limit imposed by the policy
did not bear any relationship to the ROSO. In other words, the relevant
"exclusion, distinction or preference", being the upper age limit, was
not, in my view, "based on" the ROSO. There is not a sufficiently "tight"
or "close" correlation[48] between
what may be an inherent requirement of the job and the relevant "exclusion,
distinction or preference".

It my view, the submissions made by the respondent to the effect that
the ability to satisfy a ROSO is an inherent requirement of the job of
Seaman Officer, are not relevant to a consideration of whether an upper
age limit was an inherent requirement. This is supported by the fact that
as a result of the internal grievance procedures instituted by Mr Douglas,
the "policy to restrict age limits for officer applications was changed
such that now there is no age limitation for sailor entry appointments".[49]

Apart from relying on the ROSO, the respondent has not provided any other
information to support its contention that it was an inherent requirement
of the job as Seaman Officer that a person be 45 years of age or younger
at the date of appointment as an officer. It does confirm, however, that
the ADF "has not conducted occupationally specific competency testing
that might link age to specific requirements or duties associated with
courses or occupations".[50]

In these circumstances, I find that the requirement imposed by the respondent
that Mr Douglas be 45 years of age or younger at the date of appointment
as an officer was not an inherent requirement of the job as Seaman Officer.

7. Recommendations

Having found the refusal to allow Mr Douglas the opportunity to appear
before the November 1998 OSB was discriminatory under the HREOC Act, Professor
Tay then considered what recommendations should be made.

The HREOC Act does not make it unlawful to discriminate on the ground
of age. However, the Division of the Act under which this inquiry was
conducted is directed to the elimination of discrimination in employment
and occupation. Section 35(2) expressly provides that, where an act or
practice is found to constitute discrimination, the Commission may make
such recommendations, including compensation, as it considers appropriate.

Submissions were therefore sought from both parties concerning what recommendations,
if any, should be made under ss 35(2)(b) and (c) of the HREOC Act which
provide as follows:

"(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:

…

  1. may include in the notice any recommendations by the Commission for
    preventing a repetition of the act or a continuation of the practice;
  2. may include in the notice any recommendation by the Commission for
    either or both of the following:

    1. 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;
    2. the taking of other action to remedy or reduce loss or damage
      suffered by a person as a result of the act or practice;

The submissions made by the parties are set out below.

7.1 Submissions made by the complainant concerning
recommendations

Mr Douglas provided submissions on 2 September 2002 as follows:

Captain P.A.C. Clarke[51] (RAN)
Commander Australian Submarine Service (CASS) (now Rear Admiral) recommended
early 1998 that I should be allowed to attend the Officer Selection
Board (OSB) in November that year.

I had all the necessary qualifications prescribed in ABR 10 Chapter
10 except age. All that was required was an age waiver, which was duly
requested (ABR 10 Chapter 10 states that an Age Waiver may be given
in certain circumstances). I would have been 49 in June 1998; this would
allow (if selected) me to give the minimum Return of Service Obligation
required by the ADF.

Having been recommended by the Commander Australian Submarine Service
(CASS) one would expect that he would know what he was looking for in
his officers. CASS's PA would have advised him that all the necessary
qualifications were in accordance with ABR 10 Chapter 5 p.1021 before
carefully considering his recommendation.

Commander A.H. Johnston (RAN), the CO of HMAS Stirling at the time
endorsed Captain Clarke's recommendation, expressing no problems other
than that previously mentioned.

Director Naval Officers Posting (DNOP) denied the Age Waiver request
(23 October 1998). There were apparently only 8 positions available
on the November OSB and many Officer Candidates (OC) who would be disadvantaged
should I be given an age waiver. I asked for an explanation not to grant
me an age waiver and received a reply 15 February 1999. Age aside; I
questioned the other candidate's qualifications. Why would any selection
board not want to interview all candidates and make their own minds
up as to who are the best people for the available positions.

It puzzled me as to who from Direct Entry recruits could possibly have
better qualifications. I had 26 years Royal Navy experience, 18 of
which was in submarines a Degree in Navigation and a recommendation
from CASS. The Royal Australian Navy had brought me and my family over
from England, presumably because I had something to offer the new submarines
being brought into service. I knew what submarine life was about and
wanted to impress and endorse my Commanding Officer's recommendation
(The number of DE recruits lost through attrition is quite high and
there is no guarantee that they will stay to complete their ROSO when
they enter).

Commander A.H. Johnston (RAN) previously supporting CASS about faced
and laid out a long letter (13 July 1999) as to why I had not been selected
for the OSB. Why he did not point out these seemingly salient points
before remains a mystery.

It seems a lifetime ago that this discriminatory act was carried out
against me and the years have not healed the great hurt I feel. Not
to be given an opportunity to go before the Officer Selection Board
was devastating. To be offered an opportunity to attend the OSB two
years later providing all previous promotion requirements were re-taken,
and whether I still desired to become an officer was down right cruel.
Why the turn around? Even though I had only just met the Return of Service
Obligation (ROSO) in 1998 the Australian Defence Force (ADF) made this
offer! After all my family and I had suffered the previous two years
this offer, out of the blue, seemed false hearted and offered simply
to placate me. I declined this offer pointing out my deep disillusionment
with the ADF and their treatment of me, and the fact that I had even
less time for ROSO requirements. The ADF suggested that I could apply
for an extension of service to meet the ROSO requirement, why did this
not happen in the first instance?

Obviously the ADF have changed their policy on Age in the interim,
I welcome that, however it is too late for me. I selfishly, feel very
annoyed at this policy change, why did I have to be the sacrificial
lamb in order to promote change?

.

My personal feeling on financial compensation for the loss of career
prospects, mental stress, anxiety, dignity and stigmatisation over the
last four years at the hands of the ADF would be in the region of $30,000.00.
An apology in writing would be welcomed as an indication of the ADF's
future commitment to eradicate age discrimination.

7.2 Submissions made by the respondent concerning
recommendations

The respondent provided submissions on 11 September 2002 as follows:

I refer to your letter of 6 Sept 02 and the accompanying submission
of PO Douglas as to the amount of compensation he seeks for the loss
of career prospects, stress and anxiety allegedly experienced by him
as a result of the actions of the Royal Australian Navy.

We note that he now considers compensation in the amount of $30,000
as being more appropriate than his initial claim of $20,000. In neither
case, has he provided any supporting material as to how he has arrived
at this figure. He also has requested a written apology.

Briefly, we reiterate our view that PO Douglas was not denied the opportunity
to appear before the Officer Selection Board (OSB). He was given that
opportunity, obviously two years later than his initial application,
but also when he was in a better position to meet all the entry requirements,
such as the three month observation period, that factor being one reason
that his application for an age waiver was rejected. The offer to attend
the selection process recognised that the Department had changed its
policies and that offer was a seriously considered option. PO Douglas
cannot now use his rejection of that opportunity because it was his
view that it was a 'false-hearted' offer, to penalise the Department.

It is our submission that the effect of the discriminatory conduct
is limited to a loss of opportunity to appear before the OSB - it cannot
extend to a guarantee that he would have been selected to undertake
the officer training course. This is particularly so, given that there
were relatively few positions available in the course and the high calibre
of the other candidates. Therefore we would deny that there has been
a loss of career prospects. At best, PO Douglas experienced a loss of
opportunity to compete on equal terms with his peers at only the initial
stage of a possible career upgrade.

Furthermore, as we highlighted in our earlier letter, the assertion
that he has no future career prospects and has suffered future economic
loss, cannot be supported when PO Douglas is still able to be promoted
into a Chief Petty Officer position in a specialised category that receives
special allowances. Again, we suggest that as PO Douglas has not suffered
any identifiable loss, there should be no compensation for loss of future
earnings.

As to the allegation of stigmatisation and loss of dignity, any compensation
for injury to feelings should be based on awards made in comparable
cases. We refer you to two comparable discrimination cases - Ivory v
Griffith University (1997) EOC 92-880; and Gruschow v Newman (1998)
EOC 92-923 - in which amounts of $5,000 compensation were awarded. It
remains our view that compensation in the vicinity of this figure is
appropriate in the circumstances of this case.

7.3 Recommendation of compensation

Professor Tay's discussion concerning the appropriate recommendations
in this matter is set out in full below.

7.3.1 Assessment of damages

The principles of assessment of damages in discrimination and human rights
matters are flexible, although based generally on the principles applied
when assessing damages in tort: Hall v A & A Sheiban Pty Ltd (Sheiban).[52]
So far as this is possible by an award of compensation, the object should
be to place the injured party in the same position as if the wrong had
not occurred.[53]

This involves asking: what would have happened had the respondent not
engaged in an act or practice that constituted discrimination, and that
hypothetical question brings with it elements of uncertainty. The uncertainty
arises in this case for two reasons. The first is that, as noted by the
respondent, there was no way to determine with any certainty that, even
if the respondent had considered his application to appear before the
November OSB in a non-discriminatory manner, Mr Douglas would ultimately
have been successful. The second is by reason of my finding, set out at
6.2.1 above, that another reason for the refusal to allow Mr Douglas to
appear before the November 1998 OSB may have been because he had not been
observed by his senior officers for a requisite period of time.

The assessment of damages in hypothetical fact situations has been discussed
in a number of High Court cases. In Malec v JC Hutton Pty Limited[54]
(Malec), Deane, Gaudron and McHugh JJ said:

If the law is to take account of future or hypothetical events in assessing
damages, it can only do so in terms of the degree of probability of
those events occurring … But unless the chance is so low as to
be regarded as speculative - say less than 1 per cent - or so high as
to be practically certain - say over 99 per cent - the court will take
that chance into account in assessing the damages. Where proof is necessarily
unattainable, it would be unfair to treat as certain a prediction which
has a 51 per cent probability of occurring, but to ignore altogether
a prediction which has a 49 per cent probability of occurring. Thus,
the court assesses the degree of probability that an event would have
occurred, or might occur, and adjusts its award of damages to reflect
the degree of probability.

Malec was a personal injury case. However, in Sellars v Adelaide
Petroleum,[55] the High Court
made clear that the approach to the assessment of damages discussed in
Malec has more general application. At 355, Mason CJ and Dawson,
Toohey and Gaudron JJ stated:

The principle recognized in Malec was based on a consideration
of the peculiar difficulties associated with the proof and evaluation
of future possibilities and past hypothetical fact situations, as contrasted
with proof of historical facts. Once that is accepted, there is no secure
foundation for confining the principle to cases of any particular kind.

On the other hand, the general standard of proof in civil actions will
ordinarily govern the issue of causation and the issue whether the applicant
has sustained loss or damage. Hence the applicant must prove on the
balance of probabilities that he or she has sustained some loss or damage.
However, in a case such as the present, the applicant shows some loss
or damage was sustained by demonstrating that the contravening conduct
caused the loss of a commercial opportunity which had some value (not
being a negligible value), the value being ascertained by reference
to the degree of probabilities or possibilities. It is no answer to
that way of viewing an applicant's case to say that the commercial opportunity
was valueless on the balance of probabilities because to say that is
to value the commercial opportunity by reference to a standard of proof
which is inapplicable.

The conclusion which we have reached on this question finds support
in other considerations. The approach results in fair compensation whereas
the all or nothing outcome produced by the civil standard of proof would
result in the vast majority of cases in over-compensation or under-compensation
to an applicant who has been deprived of a commercial opportunity. Furthermore,
it is an approach which conforms to the long-standing practice of taking
into account contingencies in the assessment of damages.

Those principles appear to have been accepted as applicable to human
rights matters brought under Federal legislation, including in relation
to recommendations made under s 35(2)(c)(i) of the HREOC Act.[56]

The issue for me to consider, therefore, is whether as a result of the
discriminatory act of the respondent, the complainant has sustained the
loss of an opportunity which had some value, not being a negligible value.[57]

The effect of the respondent's actions was that it nullified the complainant's
opportunity to be properly considered for promotion at the November 1998
OSB, and, in my view, the complainant's loss is the loss of the opportunity
to be assessed on his individual merits. While it is difficult on the
basis of the material before me to ascertain the value of that loss of
opportunity with any certainty, I find that it had some value, not being
a negligible value. The respondent has conceded as much by acknowledging
that Mr Douglas experienced a loss of opportunity to compete on equal
terms with his peers at a (necessary) initial stage for possible promotion.[58]

Having made that finding, I am required to do my best to assess the value
of that loss of opportunity, "even if a degree of speculation and guesswork
is involved".[59]

I have also considered the issue of general damages and note Mr Douglas'
submission concerning the mental stress, anxiety loss of dignity and stigmatisation
he has experienced as a result of the discriminatory action. I also note
that the respondent has referred me to awards of compensation in what
it suggests are comparable discrimination cases.[60]
I am of the view that the circumstances that led to the particular damages
awards in those cases are very different to the circumstances in this
case[61] and are therefore of limited
use, and that regard can usefully be had to recommendations made by this
Commission in relation to similar circumstances.[62]

Therefore, doing the best I can to assess the complainant's loss and
having taken into account all of the matters before me, including my finding
that Mr Douglas' age was not the sole reason for the refusal to allow
him to appear before the November 1998 OSB, I recommend that the respondent
pay the complainant the sum of $15,000.00 for mental stress, anxiety,
loss of dignity and stigmatisation, and loss of opportunity.

7.3.2 Mitigation

It is also necessary for me to note the respondent's comments (under
heading paragraphs 5 and 7.2 above) concerning the decision to allow Mr
Douglas to appear before the November 2000 OSB as this may have been relied
upon (although not expressly stated as such) to suggest that Mr Douglas
could have mitigated any loss he suffered by taking up that opportunity.
Ms Mantel, on behalf of the respondent, stated that at the time of the
November 2000 OSB "it was still possible for [Mr Douglas] to fully meet
his ROSO requirements if he had been appointed as an officer" and that
Mr Douglas "cannot now use his rejection of that opportunity because it
was his view that it was a 'false-hearted' offer, to penalise the Department."
I note that the former comment appeared to be in conflict with the advice
provided by Commander Johnston on 13 July 1999[63]
that as at the time of the November 1998 OSB, Mr Douglas could not have
completed the required ROSO in the time remaining before he reached the
compulsory retirement age of 55 years.

On the basis that the respondent accepted its own advice from Commander
Johnston as to the required ROSO in relation to the position of a Direct
Entry Seaman Officer (which is disputed by Mr Douglas and, as I noted
at paragraph 6.2.1, appears to be in conflict with the requirements set
out in DI(N)PERS 42-9), then if Mr Douglas had appeared before the November
2000 OSB (when he was approximately 51 years and five months of age) and
had been successful, he would have been approximately 58 years and 1 month
of age by the time he had completed the ROSO (and possibly older depending
on when the initial training course began). On the basis of the material
before me, it appears that the only way that Mr Douglas could have satisfied
the ROSO at the time of the November 2000 OSB was if the Minister decided
to exercise his/her discretion, pursuant to s 17 of the Naval Defence
Act to extend the prescribed age of retirement in Mr Douglas' case.
I note that s 17 states that the extension can only be granted for a period
not exceeding two years. Therefore, in order for Mr Douglas to have satisfied
the ROSO as at the November OSB, the discretion under s 17 would presumably
have had to have been exercised on two occasions.

It therefore seems to be the case that even if Mr Douglas had taken up
the offer to appear before the November 2000 OSB, there was no guarantee
that the discretion under s 17 would ultimately be exercised in Mr Douglas'
favour, and nor, I would have thought, could there be such a guarantee,
as the discretion is that of the Minister or his or her delegate. In these
circumstances, I am not convinced that even if Mr Douglas had taken up
the offer to appear before the November 2000 OSB that it would necessarily
have led to a meaningful outcome.

The respondent bears the burden of persuasion in any controversy as to
whether Mr Douglas had mitigated his loss[64]
and I am not satisfied that it has discharged that burden.

7.4 Other Recommendations

The respondent has advised that since the date of the circumstances that
led to this complaint, the policy concerning upper age limits for officer
applications has been changed such that there is no longer an age limit
placed on sailor entry appointments. This policy change is welcomed and
there is therefore no need to make a recommendation in this regard.

Mr Douglas has also sought an apology from the respondent "as an indication
of the ADF's future commitment to eradicate age discrimination".[65]
I am of the view that the policy change already instituted by the respondent
deals to a great extent with this particular concern. However, in light
of the admission by the respondent that age was one of the factors that
led to the refusal to allow Mr Douglas to appear before the November 1998
OSB, I recommended that the respondent provide a written apology to Mr
Douglas for that act of discrimination.

8. Conclusion

For the reasons set out above, Professor Tay formed the view that the
act complained of by the complainant, namely that the respondent refused
to allow him to appear before an OSB in November 1998, constituted discrimination
in employment on the basis of age.

9. Recommendations

Having found that Mr Douglas was discriminated against, Professor Tay
made the following recommendations:

  1. The respondent should pay to the complainant the sum of $15,000 being
    general damages and loss of opportunity.
  2. The respondent should provide a written apology to the complainant.

10. Actions Taken by the Respondent as a Result of
the Findings and Recommendations

The respondent's response to the findings and recommendation is set out
in paragraph 1.4 above.

Appendix 1

Functions of the Human Rights and Equal Opportunity
Commission

Part II Division 4 of the HREOC Act confers functions on the Commission
in relation to equal opportunity in employment in pursuance of Australia's
international obligations under ILO 111[66].

The Commission can inquire into complaints of discrimination in employment
and occupation against any employer and attempt to effect a settlement
- s 31(b) and s 32(b).

Where conciliation is unsuccessful or is deemed inappropriate, and the
Commission is of the opinion that an act or practice appears to constitute
discrimination, the Commission is required to provide an opportunity to
the parties to make written and/or oral submissions in relation to the
complaint - s 27 and s 33.

Where, after the inquiry, the Commission finds discrimination the Commission
is required to serve notice setting out the findings and the reasons for
those findings - s35(2)(a). The Commission may include recommendations
for preventing a repetition of the act or practice and for the payment
of compensation or the taking of any other action to remedy or reduce
the loss or damage suffered as a result - s 35(2)(b) and (c).

However, it is not unlawful to breach the principles of non-discrimination
protected under the Act and the Commission does not have power to enforce
its recommendations. If the Commission makes a finding of discrimination
it must report on the matter to the federal Attorney-General under s 31(b)(ii)
who subsequently tables the report in Parliament in accordance with s
46 of the Act. This is effectively the only power which the Commission
can exercise if a complaint proves to be non-conciliable.

Discrimination in employment and occupation

Under the HREOC Act discrimination means:

  1. 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
  2. any other distinction, exclusion or preference that:
    1. has the effect of nullifying or impairing equality of opportunity
      or treatment in employment or occupation; and
    2. has been declared by the regulations to constitute discrimination
      for the purposes of this Act;

    but does not include any distinction, exclusion or preference:

  3. in respect of a particular job based on the inherent requirements
    of the job;. [67]

ILO 111 prohibits discrimination on certain specified grounds.[68]
Those grounds are contained in the HREOC Act in subparagraph (a) of the
definition of discrimination. ILO 111 also provides that ratifying States
may address discrimination on additional grounds.[69]
The HREOC Act provides in subparagraph (b)(ii) of the definition of discrimination
for the adoption of regulations to declare additional grounds in accordance
with this provision in ILO 111. Under this power the Human Rights and
Equal Opportunity Commission Regulations 1989 (Cth) declared age as
a ground of discrimination for the purposes of the HREOC Act with effect
from 1 January 1990.[70]

It is an accepted principle in domestic law that where a statute contains
language that derives directly from an international instrument, such
as the HREOC Act does, it should be interpreted in accordance with the
interpretation the language has been given at the international level.[71]
The comments of the International Labour Conference Committee of Experts
on the Application of Conventions and Recommendations (the Committee of
Experts) are relevant to the interpretation of the HREOC Act's definition
of discrimination.

According to the Committee of Experts there are essentially three elements
to the definition of discrimination in ILO 111:

  1. an objective factual element, being the existence of a distinction,
    exclusion or preference which effects a difference in treatment in comparison
    with another in the same situation;
  2. a ground on which the difference of treatment is based that is declared
    or prescribed;
  3. the objective result of this treatment, that is, a nullification
    or impairment of equality of opportunity or treatment in employment
    or occupation.

Further the Committee of Experts has expressed the view that "the adoption
of impersonal standards based on forbidden grounds" and "apparently neutral
regulations and practices [that] result in inequalities in respect of
persons with certain characteristics" also constitute discrimination.[72]

The Committee of Experts has commented on the ILO 111 provision of "any
distinction, exclusion or preference in respect of a particular job based
on inherent requirements of the job". To be an inherent requirement the
condition imposed must be proportionate to the aim being pursued and must
be necessary because of the very nature of the job in question. The Committee
stated for example that the exception "refers to a specific and definable
job, function or task. Any limitation within the context of this exception
must be required by characteristics of the particular job, and be in proportion
to its inherent requirements."[73]

The Committee of Experts has agreed that an intention to discriminate
is not necessary for a finding of discrimination under ILO 111. [74]

Endnotes

  1. Other than Admirals, Vice
    Admirals and Rear Admirals.
  2. Naval Forces Regulations
    1935     (Cth), reg 102(3B).
  3. These documents were provided
    as enclosures to a letter dated 19 June 2001 from Richard Miller, Director
    Litigation, Department of Defence to Karen McCabe of the Commission.
  4. In another enclosure (entitled
    "Enclosure 1 to DGNPT Minute S/164801 of 7 May 2001") to the correspondence
    referred to in note 3 above, advice is provided that the RAN policy
    relating to these issues is now contained in a document entitled "ABR
    6289 RAN Officers' Career Management Manual". This document also provides
    that candidates must be less than 45 years of age on the first day of
    the month of appointment (see Annexure C to Chapter 4 of ABR 6289).
  5. Reference 74/3/2 (C) CASS
    985/98.
  6. Entitled "Defence Personnel
    Executive Minute, DNOP 3492/98.SO.(E&E) S/164801 PE98/27710".
  7. Directorate of Sailors' Career
    Management.
  8. Direct Entry Seaman.
  9. It is not evident on the face
    of this document what "TS" stands for. However, in the most recent version
    of annexure A to chapter 10 of the "ABR 10 Sailor's Career Management
    Manual" (provided to the Commission on 20 January 2003 by Alice Mantel,
    Directorate of Litigation), "TS" is noted as standing for "training
    systems" and appears to be one of a number of primary qualifications
    by which sailor entry candidates can apply for officer status.
  10. Minute dated 30 September
    1998.
  11. That is, the requirements
    set out in ABR 10 Ch 10.
  12. That is, DI(N)PERS 42-9,
    which is the Navy Defence Instruction containing the RAN's policy on
    return of service obligations.
  13. That is, the Minute dated
    27 August 1998 set out at paragraph 2.5.
  14. Contained in document entitled
    "Defence Personnel Executive Minute, POEWASM K. Douglas R164801 - Request
    for Clarification" prepared by Captain R.W. Gates forming part of enclosure
    1 to letter dated 17 August 2001 from John McKinlay, Department of Defence
    Complaint Resolution Agency, to Karen McCabe, of the Commission.
  15. Seaman.
  16. Lieutenant Commander.
  17. Commander.
  18. Contained in enclosure 2
    (entitled "HMAS Stirling Minute - Application for redress of grievance
    POEWA(SM) K. Douglas R164801" dated 13 July 1999) attached to letter
    dated 17 August 2001 from John McKinlay, Department of Defence Complaint
    Resolution Agency, to Karen McCabe, of the Commission.
  19. See note 18 above, paragraph
    8.
  20. See note 18 above, paragraph
    4.
  21. See note 18 above, paragraph
    6.
  22. See note 18 above, paragraph
    6.
  23. See note 18 above, paragraph
    6.
  24. Contained in enclosure 3
    (entitled "HMAS Farncomb Minute Application for redress of grievance
    - age discrimination" dated 7 February 2000) attached to letter dated
    17 August 2001 from John McKinlay, Department of Defence Complaint Resolution
    Agency, to Karen McCabe, of the Commission.
  25. Contained in enclosure referred
    to in note 4 above.
  26. Contained in enclosure 4
    (entitled "Minute - POEWASM K. Douglas R164801 - November 2000 Officer
    Selection Board, dated 20 October 2000) attached to letter dated 17
    August 2001 from John McKinlay, Department of Defence Complaint Resolution
    Agency, to Karen McCabe, of the Commission.
  27. Contained in enclosure referred
    to in note 4 above.
  28. Ibid.
  29. Contained in enclosure 5
    (entitled "Minute - DSCM (attention: LCDR A.L. Franklin) POEWASM K.
    Douglas R164801 - November 2000 Officer Selection Board, dated 23 October
    2000) attached to letter dated 17 August 2001 from John McKinlay, Department
    of Defence Complaint Resolution Agency, to Karen McCabe, of the Commission.
  30. Contained in enclosure 6
    attached to letter dated 17 August 2001 from John McKinlay, Department
    of Defence Complaint Resolution Agency, to Karen McCabe, of the Commission.
  31. In Commonwealth of Australia
    v Human Rights & Equal Opportunity Commission and Hamilton     [2000]
    FCA 1854 (Hamilton), Katz J at [9] said "As contemplated by subpar
    (b)(ii) of the definition of "discrimination", regulations have been
    made (under s 50 of the Act) 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 Act: see the Human Rights and Equal Opportunity Commission
    Regulations     (Cth) ("the Regulations"). Among such distinctions,
    exclusions or preferences are (and have been since 1 January 1990: see
    reg 2 of the Regulations) those "made … on the ground of …
    age    ": see subpar 4(a)(i) of the Regulations. (It is not clear to
    me why that provision uses the word "ground" instead of the word
    "basis", the latter word being the one which is used at the equivalent
    point in par (a) of the definition of "discrimination" in subs
    3(1) of the Act. For present purposes, I will proceed on the basis (or
    ground(!)) that the words were intended to be interchangeable."
  32. It is noted that this comment
    appears to be in conflict with the Minute from Commander Johnston dated
    13 July 1999 set out at paragraph 2.12. This issue is discussed in further
    detail at paragraph 7.3.2.
  33. Section 30(1) provides:

    "(1) In this Division-

    "act" includes an act done-

    1. by or on behalf of a State or an authority of
      a State;
    2. under a law of a State;
    3. wholly within a State; or
    4. partly within a State, to the extent to which
      the act was done within a State;

    "practice" includes a practice engaged in-

    1. by or on behalf of a State or an authority of
      a State;
    2. under a law of a State;
    3. wholly within a State; or
    4. partly within a State, to the extent to which
      the practice was or is engaged in within a State."
  34. See paragraph (c) of the
    definition of discrimination in s 3(1) of the HREOC Act.
  35. Section 9(1) provides: It
    is unlawful for a person to do any act involving a distinction, exclusion,
    restriction or preference based on race, colour, descent or national
    or ethnic origin which has the purpose or effect of nullifying or impairing
    the recognition, enjoyment or exercise, on an equal footing, of any
    human right or fundamental freedom in the political, economic, social,
    cultural or any other field of public life.
  36. Set out at paragraph 2.6.
  37. This view was also taken
    by Commissioner Sidoti in Human Rights Commissioner Report No.3 "Report
    of Inquiry into a Complaint of Discrimination in Employment and Occupation
    - October 1997" at p5. See http://www.humanrights.gov.au//human_rights/trade_union/index.html.
  38. Set out under heading 5.
  39. Hamilton at [61].
  40. Commonwealth v Bradley
    (1999) 95 FCR 218 (Bradley) at [35].
  41. Hamilton at [36].
  42. Ibid.
  43. (1987) 70 ILO Official
    Bulletin    , Ser B, Supp. 1.
  44. (1998) 158 ALR 468.
  45. (1999) 95 FCR 218.
  46. Contained in enclosure referred
    to in note 4 above.
  47. See note 30 above and Professor
    Tay's comments at paragraph 6.2.1.
  48. Set out at paragraph 6.4.3.
  49. Contained in advice from
    AC Mantel, Directorate of Litigation, set out under heading 5.
  50. See enclosure referred to
    in note 4 above.
  51. Mr Douglas added a footnote
    that stated: 'Capt. Clarke had known me from the Royal Navy and what
    my qualifications would entail.'
  52. (1989) 20 FCR 217.
  53. Ibid, per Lockhart J at 239.
    See similarly, in the context of the HREOC Act, Commonwealth v Peacock
    (2000) 104 FCR 464 (Peacock), per Wilcox J at [55].
  54. (1990) 169 CLR 638.
  55. (1994) 179 CLR 332.
  56. See Peacock at [55].
  57. Sellars v Adelaide Petroleum
    (1994) 179 CLR 332 at 355.
  58. Set out at paragraph 7.2.
  59. Enzed Holdings Ltd v Wynthea
    Pty Ltd     (1984) 57 ALR 167 at 183.
  60. Set out at paragraph 7.2.
  61. In the second case referred
    to by the respondent, Gruschow v Newman & Anor (1998) EOC 92-918,
    a New Zealand case, the complainant was not a current employee of the
    respondent but was an external applicant for the particular job. In
    Ivory v Griffith University (1997) EOC 92-880, the award of general
    damages was reduced because of circumstances particular to that case.
  62. See, for example, HREOC Report
    No.14 - Report of an inquiry into a complaint by Mr Andrew Hamilton
    of age discrimination in the Australian Defence Force (2002). It is
    relevant to note that although judicial review was sought by the Commonwealth
    of aspects of the Commission's decision in Hamilton, review was
    not sought in relation to the recommendation made in relation to the
    payment of compensation. See also HREOC Report No.8 - Age discrimination
    in the Australian Defence Force (2000), in particular, Appendix 5.
  63. See note 32 above.
  64. Medlin v State Government
    Insurance Commission     (1995) 182 CLR 1. See also, in the area of
    discrimination law, Everett v Copperart (1997) QADT 14.
  65. Set out at paragraph 7.1.
  66. Ratified by Australia in
    1973.
  67. Section 3(1).
  68. Art 1(1)(a).
  69. Art 1(1)(b).
  70. SR 1989 407, notified in
    the Commonwealth of Australia Gazette on 21 December 1989.
  71. Koowarta v Bjelke-Petersen
    & Others     (1981) 153 CLR 168 at 265 (Brennan J); Minister for
    Foreign Affairs and Trade & Ors v Magno and Another     (1992) 112 ALR
    529 at 535-6 (Gummow J).
  72. International Labour Conference,
    Equality in Employment and Occupation: General Survey by the Committee
    of Experts on the Application of Conventions and Recommendations
    ILO, Geneva, 1988, 23.
  73. Ibid, at 138.
  74. Ibid, at 22.

Last
updated 14 April 2004.