Commission submission - Markham

IN
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION VICTORIAN REGISTRY

C2002/3380

BETWEEN:

Graincorp Operations
Ltd

Appellant

AND:

Stephen Markham

Respondent

Submissions of
the Human Rights and Equal Opportunity Commission

A. SUBMISSIONS ON LEAVE TO
INTERVENE

1. The Human Rights
and Equal Opportunity Commission ("HREOC") seeks the leave of
the Australian Industrial Relations Commission ("the Commission")
under s.43 of the Workplace Relations Act ("the WR Act")
to intervene at the hearing of this appeal pursuant to s.48(1)(gb) of
the Sex Discrimination Act 1986 (Cth) ("the SD Act")
and 11(1)(o) of the Human Rights and Equal Opportunity Commission Act
1986 (Cth) ("the HREOC Act").

2. The form of the
intervention sought, subject to the discretion of the Commission, is the
filing of written submissions and the making of oral submissions during
argument on the correct interpretation of s.28A of the SD ACT and issues
of sexual harassment, sex-based harassment and sex discrimination as relevant
to this Appeal.

Functions of HREOC
under the HREOC Act and the SD ACT

3. HREOC has, inter
alia, the following functions under the HREOC Act and the SD ACT [1]:

(a) where HREOC
considers it appropriate to do so with the leave of the court hearing
the proceedings and subject to any conditions imposed by the court,
to intervene in proceedings that involve discrimination issues (s.31(j)
of the HREOC Act);



(b) to promote an understanding and acceptance, and the public discussion,
of equality of opportunity and treatment in employment and occupation
in Australia (s.31(c) of the HREOC Act);



(c) where HREOC considers it appropriate to do so, with the leave of
the court hearing the proceedings and subject to any conditions imposed
by the court, to intervene in proceedings that involve issues of discrimination
on the ground of sex, marital status, pregnancy or potential pregnancy
or discrimination involving sexual harassment (s.48(1)(gb) of the SD
ACT); and



(d) to promote an understanding and acceptance of, and compliance with,
the SD ACT (s.48(1)(d) of the SD ACT).

Experience and
expertise of HREOC and the Sex Discrimination Commissioner

4. HREOC performs
a wide range of activities in relation to sex discrimination in Australian
workplaces and has been active in public discussion of issues relating
to discrimination on the ground of sex, sexual harassment and equal opportunity
in employment. HREOC has undertaken a wide range of activities aimed at
eliminating all forms of discrimination against women and encouraging
Australia's compliance with its international human rights obligations.
Those activities have included:

(a) preparing and
distributing the publication Sexual Harassment - A Code of Practice,
August 1996;



(b) inquiring into and conciliating complaints alleging sexual harassment
and sex discrimination in employment under the SD Act and HREOC Act;




(c) representation on the AIRC central working party in 1995 for the
pilot award review process and subsequent intervention in proceedings
to adopt the award review principles, a key aspect being the removal
of discriminatory provisions from federal awards and the inclusion of
a model anti-discrimination clause;



(d) intervening in Gunn & Taylor Pty Ltd v AMWU, 4 June 2002
[Print PR918573] before the Australian Industrial Relations Commission
regarding an application for an order for equal remuneration for work
of equal value;



(e) intervening in the Parental Leave Casual Employees Test Case,
31 May 2001 [Print PR904631] (2001) EOC 93-144 before the Australian
Industrial Relations Commission regarding the rights of pregnant casual
employees to parental leave;



(f) on reference from the Attorney-General, undertaking a National Inquiry
into Pregnancy and Work involving extensive consultation and research
which resulted in the publication of the HREOC Report entitled Pregnant
and Productive: It's a right not a privilege to work while pregnant,
1999; [2]



(g) preparing submissions, dated 13 November 2000 and 16 February 2001,
to the Senate Legal and Constitutional Legislation Committee on the
Sex Discrimination Amendment Bill (No 1) 2000 and appearing before
that Senate Committee to give evidence;



(h) providing comments, by letter dated 21 December 1998, to the Office
of the Status of Women regarding the Optional Protocol to the Convention
on the Elimination of All Forms of Discrimination Against Women
("CEDAW");



(i) reviewing Australia's progress under CEDAW and providing comments,
by letters dated 11 May 2001 and 5 July 2002, to the Office of the Status
of Women on the draft of Australia's Fourth and Fifth Combined Report
on CEDAW;



(j) preparing a report, dated 28 June 2000, to the United Nations Human
Rights Committee dealing with, amongst other things, protection against
sex discrimination, the position of women in Australian society and
projects undertaken by HREOC in relation to the human rights of women;



(k) preparing and distributing an information package entitled Woman
of the World - know your international human rights, launched on
8 March 2001 (International Women's Day);



(l) participating in the United Nations General Assembly Special Session
entitled Women 2000: Gender Equality, Development and Peace for the
21st Century (Beijing+5) on 5-9 June 2000. The United Nations General
Assembly held the Special Session to review the outcomes of the 4th
World Conference on Women, known as the 1995 "Beijing Conference",
as set out in the Beijing Declaration and Platform for Action;
and



(m) attending the Regional Workshop on the role of national human rights
institutions in advancing the human rights of women in Suva Fiji, organised
by the Asia-Pacific Forum from 5-7 May 2000.

Factors relevant
to grant of leave to intervene

5. HREOC submits
that this appeal involves issues of general principle and public importance
which may significantly affect persons other than the parties who are
before it. [3]

6. HREOC further
submits that it has:

(a) a legitimate
concern in making submissions in relation to the proper interpretation
of the provisions of the SD ACT that is in issue in these proceedings;
[4]



(b) an interest in the subject of litigation greater than a mere desire
to have the law declared in particular terms; [5]



(c) an ability to make submissions which the Commission might consider
that it "should have to assist it to reach a correct determination";
[6]



(d) special knowledge and expertise relevant to the issues the subject
of the appeals; and



(e) an ability to make submissions which differ in emphasis and content
from those of the parties and which are likely to assist the

Commission in a way in which the Commission "would not otherwise
have been assisted". [7]

7. No practical considerations
militate against the granting of leave because:

(a) the parties
received adequate notice of HREOC's intention to seek leave to intervene;


(b) the parties were provided with a copy of draft submissions prior
to the hearing; and

(c) HREOC requests only a short opportunity to make oral submissions,
at the discretion of the Commission.

B. SUBSTANTIVE SUBMISSIONS

Definition of
sexual harassment under the HREOC Act

8. Sexual harassment
is defined by the Sex Discrimination Act 1984 (Cth) as follows:

28A (1) For the purposes
of this Division, a person sexually harasses another person (the person
harassed) if:

(a) the person
makes an unwelcome sexual advance, or an unwelcome request for sexual
favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation
to the person harassed;

in circumstances in which a reasonable person, having regard to all
the circumstances, would have anticipated that the person harassed
would be offended, humiliated or intimidated.

(2) In this section:

conduct of a
sexual nature includes making a statement of a sexual nature to
a person, or in the presence of a person, whether the statement is made
orally or in writing.

Findings of Commissioner
Blair

9. The Commissioner
found the facts as relevant to the issue of sexual harassment to be as
follows (at [10]-[18]):

Mr Markham was
aggrieved with Ms Barton and had consumed a fair amount of alcohol over
a dinner at which Ms Barton was not present. Ms Barton was known to
Mr Markham to be away from the hotel at which they were staying during
dinner and he believed that she had not returned after dinner as her
car was not parked outside.

On passing Ms Barton's
room on the way back to his, he banged on the external door to her room.
He did not know she was in the room. Upon returning to his room Mr Markham
banged on the internal door between the rooms. There was no door handle
on the doors connecting the rooms and he did not attempt to enter Ms
Barton's room.

A Mr Williams was
also in Mr Markham's room and sought to intervene by saying words to
the effect of "you can't do that". Mr Markham then said words
to the effect of "fucking bitch", "fuck the bitch"
and "fucking slut". The words were directed to Williams and
were a form of defiance on Mr Markham's part in response to Mr Williams'
reproach.

Ms Barton was in
the adjacent room and was extremely distressed by Mr Markham's actions.

10. HREOC notes the
Appellant has appealed against the factual findings of the Commissioner.
HREOC does not seek to make submissions in relation to matters of fact,
but rather set out what it contends are the appropriate principles applicable
to whatever facts are found by the Commission on appeal to be made out.
HREOC submits that the Commissioner erred in the principles applied to
the facts as found.

11. The Commissioner
made the following findings of law in relation to sexual harassment (see
[23] - [28]) about which HREOC seeks to make submissions:

(a) Words to the
effect of "fuck the bitch", "fucking bitch" and "fucking
slut" are not words of a sexual nature. These expressions are to
be looked at "in the same terms as the use of the words 'fucking
bastard' which is generally directed towards a male". Similarly the
words "well fuck him" is a figure of speech that does not necessarily
indicate a sexual intention.

(b) Conduct can only be unwelcome if the conduct is "directly directed
towards the person who may find it unwelcome".

(c) "The person 'harassed is, or would be offended humiliated or
intimidated' by the conduct infers that there is intent to harass the
person who would be 'offended, humiliated or intimidated' by the conduct."

(d) For a reasonable person to have "anticipated that the person
harassed would have felt this way" assumes that the person who is
making the comments "knows that the person whom the comments are
about can actually hear them".

Do the words
spoken constitute words "of a sexual nature"?

12. HREOC does not
submit that the words found by the Commissioner to have been spoken ("fuck
the bitch", "fucking bitch" and "fucking slut")
were, in the specific context in which the Commissioner found them to
have been uttered, "of a sexual nature" such that they would
constitute sexual harassment. [8] However, these words
could, in a different context, constitute sexual harassment. Furthermore,
the line between such expressions and others which would constitute language
"of a sexual nature" may be a fine one and, in approaching such
expressions, an acknowledgement of sex-based language and the context
of power in gender relationships is important. HREOC submits that, although
the Commissioner may have been correct in his ultimate conclusion regarding
sexual harassment, his reasoning failed to acknowledge this context and
the significance of sex-based language.

13. HREOC submits
that the Commissioner erred in trying to draw parallels with expressions
such as "fuck the bastard" when directed towards a male. This
expression differs relevantly from the expressions found to have been
used in the present case for a number of reasons.

14. The first is
that "fuck the bitch" and "fucking slut" are sex-based
insults. "Slut" carries a clear sexual connotation, and both
"bitch" and "slut" are, on their face, gender-specific
terms. The same is simply not the case with the expression "bastard"
which is not gender-specific (whether or not it may be directed more frequently
to males than females).

15. The second is
that derogatory or abusive terms spoken by a male to a female can be qualitatively
different to the same abusive terms spoken by a male to a male,
a female to a female or a female to a male. [9] By way
of example, a woman calling a man a "bitch" or a "slut"
would not necessarily carry the same meaning or impact as a man using
the same terms in reference to a woman.

16. It is also relevant
to consider the power dynamics that exist in male/female relationships
in the context of the work environment. Historically the workplace has
been a male domain, organised consistently with male needs and interests.
[10] These organisational arrangements "create
countless contexts of power inequities in which men occupy the majority
or the only positions of power and authority". [11]
While not advocating a one-dimensional analysis of power relations in
the workforce, HREOC submits that this power differential between the
sexes continues to exist in many workplaces to the detriment of female
workers.

17. HREOC submits
that the combination of these factors means that not only is it incorrect
to equate "fucking bitch" with "fucking bastard",
but the error is compounded by ignoring the context of the comments -
that they are spoken in a work-related environment by a man about a woman.

18. While this error
may not, in HREOC's submission, have resulted in the Commissioner reaching
the wrong conclusion in relation to the particular words spoken in this
case, the approach should not be followed in considering other expressions
or the same expressions in different contexts. The use of such expressions
may, for example, contribute to a hostile or "sexually permeated"
work environment. In such a context the use of the expressions may be,
of themselves, acts of sexual harassment. [12] As developed
below, sex-based insults may also constitute or contribute to an environment
that discriminates on the basis of sex.

Do words need
to be directed to, or spoken in the presence of the subject to constitute
"unwelcome conduct of a sexual nature"?

19. The Commissioner
found that conduct "can only be unwelcome… if the conduct is
directly directed towards the person who may find it unwelcome".
Although this finding is not developed, it seems that the Commissioner
is proceeding on the basis that "welcoming" connotes a "willing
reception" - and that for something to be "unwelcome" it
must be received other than willingly (and without such reception something
can neither be "welcome" nor "unwelcome").

20. However, while
a person harassed needs to be aware, or made aware, of the relevant conduct,
it is not necessary that they "receive" such conduct directly.
"Conduct of a sexual nature" is defined in s.28A(2) as including
"making a statement of a sexual nature to a person, or in the presence
of a person, whether the statement is made orally or in writing".
"A person" is to be distinguished from "the person harassed"
- the definition does not require that the statement be made to "the
person harassed" but contemplates that the statement can be made
to "a person" generally. This includes a statement to a third
person in the absence of the person harassed.

21. There are a variety
of situations in which HREOC would submit sexual harassment is committed
in the absence of the person harassed but the person harassed subsequently
becomes aware of such conduct. For example, employee X should be found
to have sexually harassed employee Y if X makes sexually explicit comments
about Y to co-employees in Y's absence. Similarly, it should properly
be found that it is sexual harassment if X distributes sexually explicit
material (physically or electronically) concerning Y to co-employees (excluding
Y) or if male employee X displays sexually explicit photographs of Y in
the men's toilets to which Y has no access. [13]

Does a harasser
need to intend that the person be harassed?

22. HREOC submits
that the Commissioner also erred in finding that there needs to be an
"intent to harass". The relevant test is whether or not a reasonable
person, having regard to all the circumstances, would have anticipated
offence, humiliation or intimidation. This test was applied in Johanson
v Michael Blackledge Meats [2001] FMCA 6 (1 March 2001), by Driver
FM who went on to state (at [89] emphasis added):

It is clear that
there have been instances where employers have been found liable for
harassment of employees in circumstances where offensive posters or
other offensive material have been left around the workplace and seen
by the complainant. In some instances this material was on display prior
to the arrival of the complainant in the workplace. In G v R and
the Department of Health, Housing and Community Services (unreported,
HREOC, 23 August 1993) a toy in form of a jack-in-the-box with a penis
substituted for the normal figure was put on the desk of the complainant's
husband. Other employees passed comments about the toy but these were
not directed at the complainant. The complaint failed for other reasons
but Sir Ronald Wilson found that the conduct complained of could constitute
sexual harassment of the complainant even though she was not the target.
Clearly, it is not necessary that the complainant be the conscious target
of the offensive conduct. Sexual harassment can occur where the conduct
is directed at a limited class of people (eg employees). I see no material
difference in the case of conduct directed at customers or potential
customers. Once a person chooses to engage in conduct of a sexual
nature in which another person, whether the intended target or not,
who has not sought or invited the conduct, experiences offence, humiliation
or intimidation and, in the circumstances, a reasonable person would
have anticipated that reaction, the elements of sexual harassment are
made out.

23. The circumstances
of Johanson v Michael Blackledge Meats were that a customer had
been sold a bone which had been fashioned into the shape of a penis by
an employee. It was found that the sale of the particular bone was unintentional,
but the transaction as a whole constituted sexual harassment. His Honour
continued (at [90] emphasis added):

An additional factor
here is that the person who sold the bone, Mr Finlay, did not intend
to sell anything other than an ordinary bone. But Mr Finlay was not
the only employee involved and the act of sale of the bone was not the
only relevant act that occurred in the shop. Ben Lithgow intentionally
created a phallic object on the premises with the assistance of Ted
Brown. After showing the object to his friend, Ben Lithgow placed it
in the cool room with all of the other bones in such a way as it could
not be readily distinguished from ordinary bones. It follows that while
the sale of an offensive object was not a conscious act by the respondents
or their employees the creation of the object and its retention on the
premises in circumstances that gave rise to a reasonable likelihood
of such sale were deliberate acts of an employee. When one examines
all of the circumstances it is clear that a course of conduct was engaged
in which exposed Ms Johanson to the risk of obtaining from the shop
an offensive object that she did not want and which caused her serious
offence. I conclude, therefore, that the elements of harassment
for the purposes of s.28A and s.28G have been made out.

24. In the present
case, the employee Mr Markham may argue that a reasonable person would
not have anticipated offence, humiliation or intimidation by reason of
the fact that he did not believe that the other employee would hear the
words spoken (as it was believed she was not in the room). To the contrary,
however, the evidence that the employee Mr Williams tried to stop Mr Markham
would suggest that a reasonable person would have thought the behaviour
was inappropriate per se as it was offensive, humiliating and intimidating
even in the absence of Ms Barton. Furthermore a reasonable person may
have foreseen that Ms Barton may return during the outburst, overhear
the outburst from the hallway, or even hear about the outburst through
others at a later stage and find it offensive, humiliating and intimidating.

For a reasonable
person to anticipate that a person will feel offended etc, is it necessary
for the person who makes the comments to know that the subject can actually
hear those comments?

25. HREOC submits
that such knowledge is not necessary. As suggested above, a reasonable
person may anticipate that their comments will be overheard or relayed
by fellow employees or bystanders to the person harassed after the event.
The finding appears, with respect, to follow the Commissioner's error
in relation to intention.

Sex-Based Harassment
as Discrimination

26. HREOC submits
that the Commission, in reaching a decision on whether or not a termination
is "harsh, unjust or unreasonable", should consider an employer's
obligation to maintain a work environment that does not condone sex-based
harassment.

27. It is well established
that behaviour that falls within the definition of sexual harassment will
also constitute sex discrimination. [14]

28. Sex-based harassment
falling outside the definition of sexual harassment may also constitute
less favourable treatment in the conditions of employment (s.14(2)(a)
of the SD ACT) or amount to subjecting an employee to a detriment (s.14(2)(d)
of the SD ACT) and may create or contribute to a work environment that
discriminates against women.

29. The Commission
is required to take into account the principles embodied in the SD Act
relating to discrimination in relation to employment; s.93 of the WR Act.

Equal Opportunity
Considerations

30. HREOC further
submits that the Commission should have regard to the broader context
of equality of opportunity in employment in determining what constitutes
"harsh, unjust and unreasonable" termination.

31. In addition to
the requirement of s.93 of the WR Act that the Commission take into account
the principles embodied in the SD Act, the objects of the WR Act set out
in s.3 include:

(j) respecting
and valuing the diversity of the work force by helping to prevent and
eliminate discrimination on the basis of … sex…; and

(k) assisting in giving effect to Australia's international obligations
in relation to labour standards.

32. While the WR
Act gives effect to these objects through certain specific provisions,
[15] the objects are applicable to the WR Act as a whole.
Such an approach has been taken by the Commission in proceedings under
s.170CE in Johnston v Kew Aged Care Pty Ltd t/as Parkland Close
[16] and Tsipas v Brimbank City Council. [17]



33. It is also an accepted principle of the common law that a statute
is to be interpreted and applied, as far as its language permits, so that
it is consistent with established rules of international law. [18]
As noted by Mason CJ and Deane J in Minister for Immigration and Ethnic
Affairs v Teoh (1995) 183 CLR 273 at 287-8:

If the language
of the legislation is susceptible of a construction which is consistent
with the terms of the international instrument and the obligations which
it imposes on Australia, then that construction should prevail.

34. The Convention
on the Elimination of all Forms of Discrimination Against Women (CEDAW)
[19] is the principal international human rights convention
dealing with the human rights of women. It forms the Schedule to the SD
Act and as such is part of the statute; Acts Interpretation Act 1901
(Cth) s.13(2). It provides relevantly:

Article 3

States Parties shall take in all fields, in particular in the political,
social, economic and cultural fields, all appropriate measures, including
legislation, to ensure the full development and advancement of women,
for the purpose of guaranteeing them the exercise and enjoyment of human
rights and fundamental freedoms on a basis of equality with men.

Article 5

States parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority
or the superiority of either of the sexes or on stereotyped roles for
men and women…

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a basis
of equality of men and women, the same rights, in particular:

….

(d) The right to … equal treatment in respect of work of equal
value, as well as equality of treatment in the evaluation of the quality
of work;

….

(f) The right to protection of health and safety in working conditions

35. Australia is
also a member to the Convention Concerning Discrimination in Respect
of Employment and Occupation (ILO 111). [20] This
provides relevantly:

Article 1

1. For the purpose of this Convention the term "discrimination"
includes -

(a) any distinction, exclusion or preference made on the basis of…
sex… which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation

Article 2

Each Member for which this Convention is in force undertakes to declare
and pursue a national policy designed to promote, by methods appropriate
to national conditions and practice, equality of opportunity and treatment
in respect of employment and occupation, with a view to eliminating
any discrimination in respect thereof.

36. Sex-based harassment
(whether it falls within the definition of sexual harassment or not) enforces
and perpetuates modes of behaviour that should not be seen as acceptable
in light of the international standards to which Australia has committed
itself. Consistent with the SD Act and the objects of the WR Act these
considerations should be taken into account when determining whether or
not the conduct of an employer, in terminating an employee on the basis
of sex-based harassment, is "harsh, unjust and unreasonable".

37. A work environment
in which sex-based insults are tolerated will, in HREOC's submission,
inhibit equal opportunity and equal participation in the workplace by
reinforcing or perpetuating existing inequality and disparate power relationships
in the workplace.

38. HREOC notes the
evidence of Ms Barton that she would feel compelled to resign if Mr Markham
was reinstated because she would be unable to feel safe in the workplace
(at [43]). The Commissioner declined to be influenced by these comments
in reaching his decision, but does not appear to have doubted that Ms
Barton's fears were genuine. This highlights the damaging influence of
sex-based insults, whether or not they fall within the parameters of sexual
harassment as defined by the SD Act.

19 August 2002

ENDNOTES

1. Section
11(1)(a) of the HREOC Act provides that the functions of HREOC include
such functions as are conferred on HREOC by the Sex Discrimination Act
1984 or any other enactment.

2. On behalf of the Commission, the then Sex Discrimination
Commissioner received over 100 written submissions and also undertook
a wide range of consultations and interviews. Focus groups were hosted
by interested organisations around the country. The then Sex Discrimination
Commissioner also undertook extensive consultations with government, employers,
employees and employee organisations in relation to a range of pregnancy
and work issues.

3. United States Tobacco Co v Minister for Consumer Affairs
(1988) 20 FCR 520 at 534.

4. Australian Railways Union v Victorian Railways Commission
(1930) 44 CLR 319 at 331 per Dixon J.

5. Kruger v Commonwealth of Australia (1996) 3 Leg Rep
14 per Brennan CJ.

6. Levy v State of Victoria (1997) 189 CLR 579 at 603
per Brennan CJ.

7. Ibid at 604 per Brennan CJ.

8. It is noted that the NSW Equal Opportunity Tribunal
in O'Callaghan v Loder (1984) EOC 92-023, albeit prior to the direct legislative
prohibition on sexual harassment, identified "gender-based insults
or taunts" in its inclusive list of "sexual conduct".

9. Similarly, racial taunts carry vastly different meanings
depending upon context - "white bastard" cannot necessarily
be equated with "black bastard", and the difference between
the terms will depend upon the context in which they are used.

10. See Aruna Rao, Rieky Stuart and David Kelleher Gender
at Work: Organizational Change for Equality, Kumarian Press, Hartford,
1999 page 5.

11. Paula J Dubeck and Kathryn Borman (eds) Women and
Work: A Handbook, Garland Publishing, New York, 1996 page 323.

12. See Djokic v Sinclair & Central Queensland Meat
Export Co Pty Ltd [1994] HREOCA 16 (20 July 1994), http://www.austlii.edu.au/au/cases/cth/HREOCA/1994/16.rtf,
Zoiti v The Cheesecake Factory Pty Ltd [1993] HREOCA 12 (7 June 1993),
http://www.austlii.edu.au/au/cases/cth/HREOCA/1993/12.rtf; Rutherford
v Wilson & State of Queensland [2001] QADT 7 (21 May 2001), http://www.austlii.edu.au/au/cases/qld/QADT/2001/7.rtf
at p.51 and Horne & Anor v Press Clough Joint Venture & Anor (1994)
EOC 92-556. Repeated use of language such as "slut" may also
constitute sexual harassment; see Edwards v Bourke Bowling Club Limited
[2000] NSWADT 31 (31 March 2000), http://www.austlii.edu.au/au/cases/nsw/NSWADT/2000/31.rtf
at [66] and [101].

13. Such acts would also contribute to a hostile or "sexually
permeated" environment; see note 12 above.

14. See Johanson v Michael Blackledge Meats op cit at
[96] and also O'Callaghan v Loder op cit, Aldridge v Booth (1988) 80 ALR
1 at 16, Hall & Others v A & A Sheiban Pty Ltd & Others (1989)
20 FCR 217 per French J at 274 and consideration by Lockhart J at 233-235.

15. These sections are not relevant for the present case;
see for example s.170BA. In the case of Division 3 of Part VIA of the
WR Act under which this case is brought, the stated objects of the Division
in s.170CA are the "principal" objects (cf s.17BA), confirming
that the more general objects of the WR Act apply.

16. 1476/98 M Print Q9544 (9 December 1998), decision
of Commissioner Foggo.

17. 1460/98 M Print Q9442 (7 December 1998), decision
of Commissioner Lewin.

18. Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384
per Gummow and Hayne JJ; Polites v The Commonwealth (1945) 70 CLR 60.

19. Declaration on the Elimination of Discrimination
against Women, proclaimed by General Assembly Resolution 2263(XXII) of
7 November 1967, entry into force for Australia 27 August 1983.

20. Convention Concerning Discrimination in Respect of
Employment and Occupation, proclaimed by the General Conference of the
International Labour Organisation on 4 June 1958, entry into force for
Australia 15 June 1974. The Convention is annexed to the HREOC Act in
Schedule 1.

Last
updated 6 September 2002.