2.1 The Anti-Discrimination Act 1977 (NSW) (“ADA”) does not exist in isolation. Its scope is both limited and enhanced by the wider State and Commonwealth legal and constitutional framework within which it operates.

2.2 This chapter considers the coverage of and relationship between the ADA and Commonwealth anti-discrimination and industrial relations laws within the context of international human rights laws.

2.3 The Australian Constitution recognises two levels of government, Federal and State, both having powers to make laws. Section 51(xxix) of the Constitution gives Parliament the power to make laws “for the peace, order and good government of the Commonwealth with respect to” various enumerated matters. One such matter is “external affairs” under which Commonwealth legislation has been enacted in the field of equal opportunity and anti-discrimination to ensure that international obligations assumed by Australia are given effect throughout the country.¹ Section 51 (xxxv) gives the Commonwealth Parliament the power to make laws with respect to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” Under the power given by this provision and s 51(xxix) the Commonwealth Parliament has enacted extensive legislation governing the conditions of employment of many Australian employees. State Parliaments have also made laws covering workplace relations.

2.4 A person who claims to have been discriminated against on a prohibited ground may in the area of employment have rights under one or more of the following:

• Commonwealth anti-discrimination laws;
• State anti-discrimination laws;
• Commonwealth industrial relations laws; and
• State industrial relations laws.

2.6 Australian constitutional law has developed a series of tests for resolving problems that arise where both Commonwealth and State laws may apply to the same situation – with inconsistent outcomes. This chapter considers the way in which these problems may be dealt with in relation to the scope and application of the ADA and their potential relevance to the content of the ADA.

2.7 Relevant Commonwealth laws may fall into one of three categories:

• laws relating particularly to discrimination;
• laws dealing primarily with other topics but containing express anti-discrimination provisions – and, in particular, industrial relations laws; or
• laws of general application.

COMMONWEALTH HUMAN RIGHTS LAWS

2.9 The Commonwealth discrimination statutes currently in force are the:

• Racial Discrimination Act 1975 (Cth);
• Sex Discrimination Act 1984 (Cth);
• Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth);
• Human Rights and Equal Opportunity Commission Act 1986 (Cth); and
• Disability Discrimination Act 1992 (Cth).

International context

2.11 A number of international instruments codify international human rights norms and establish international standards for working conditions. Australia is a signatory to a number of these and the Commonwealth anti-discrimination and industrial relations legislation embodies the Commonwealth Parliament’s attempt to incorporate these international obligations into domestic law. The main sources of standards relevant to equality and discrimination are the Conventions of the United Nations (“UN”) and the International Labour Organisation (“ILO”).

2.12 Since the Second World War, large numbers of such international instruments have been formulated. This process was fostered by the adoption of the Charter of the United Nations in 1945 and the Universal Declaration of Human Rights (“UDHR”) in 1948. The UDHR contains approximately 40 “rights”, which are the common standards of human rights to be attained by nations. A number of international treaties, many of which have been ratified by Australia and incorporated as schedules to the Commonwealth human rights legislation, contain binding obligations to implement these rights.²

2.13 A further development in the area of human rights is Australia’s accession to the First Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”) in December 1991. This Protocol allows Australian residents to complain to the United Nations Human Rights Committee about a breach of fundamental human rights standards.³

2.14 The States are not entities that have international legal personality: only the Commonwealth has this, so only the Commonwealth is involved in the negotiation and adoption of international instruments. Nevertheless, States may wish, or accept an obligation (not of course legally enforceable), to enact laws that reflect international norms.

Race

2.15 The Racial Discrimination Act 1975 (Cth) (“RDA”) ratifies the international Convention on the Elimination of All Forms of Racial Discrimination 1965 (“CERD”) which entered into force on 2 January 1969.

2.16 Under the RDA 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 or any other field of public life.⁴ Both direct and indirect forms of discrimination are prohibited.⁵

2.17 In addition to the broad prohibition contained in s 9, the RDA also contains specific prohibitions against discrimination in certain areas. Persons of a particular race, colour or national or ethnic origin have the right to be free from discrimination on the basis of that attribute in:

• access to places and facilities,⁶ land, housing and other accommodation;⁷
• provision of goods and services;⁸
• the right to join trade unions;⁹ and
• in employment.¹⁰

2.19 Exceptions in the RDA are limited to matters such as providing a “special measure”,¹² charitable benefits,¹³ employment in certain circumstances on a ship or aircraft,¹⁴ shared accommodation¹⁵ and offers of employment in a private home.¹⁶

2.20 The RDA binds the Crown in right of the Commonwealth and of each of the States and Territories.¹⁷ The RDA states that it is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with the RDA.¹⁸

Sex

2.21 A principal object of the Sex Discrimination Act 1984 (Cth) (“SDA”) is to give effect to certain provisions of the Convention of the Elimination of All Forms of Discrimination Against Women 1979 (“CEDAW”) which entered into force on 3 September 1981.

2.22 The SDA prohibits direct and indirect discrimination on the grounds of sex,¹⁹ marital status,²⁰ family responsibilities²¹ and pregnancy and potential pregnancy.²² Sexual harassment is also expressly prohibited.²³ It is an offence to publish or display or cause or permit publication or display of an advertisement that could reasonably be understood as indicating an intention to breach the SDA.²⁴ Discriminatory requests for information are also prohibited.²⁵

2.23 Where the Sex Discrimination Commissioner receives a complaint alleging that a person has done a discriminatory act and that act occurred in the course of conduct covered under an award or certified agreement, within the meaning given to those expressions by the WRA, and it appears to the Commissioner that the act is discriminatory, the Commissioner must refer the award or agreement to the Australian Industrial Relations Commission (“AIRC”). However, it should be noted that this provision appears to have been used extremely rarely, so its value must be questioned. Furthermore, the WRA (and, indeed, the State industrial relations legislation) generally applies only to those workers who are governed by awards and it appears that the number of employees covered by awards is currently in decline.²⁶

2.24 Discrimination on the basis of sex, marital status, pregnancy or potential pregnancy is prohibited in the areas of work,²⁷ education,²⁸ provision of goods, services and facilities,²⁹ accommodation,³⁰ land,³¹ clubs³² and in the administration of Commonwealth laws and programs.³³ It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.³⁴

2.25 A number of exceptions to the prohibitions reflect the public/private dichotomy of discrimination law.³⁵ Other exceptions attempt to further the objectives of the SDA in recognising the need for special measures.³⁶

2.26 The SDA is limited in its application to the States because it relies primarily on powers such as the external affairs and trade and commerce powers in the Constitution for its validity,³⁷ for example, to give effect to certain provisions of the CEDAW.³⁸ As this convention only applies to women, the SDA only applies to men where another “head” of constitutional power is relied upon. For example, a man who is employed in interstate trade and commerce, and is discriminated against on the basis of sex, may have access to rights under the SDA.³⁹

Disability

2.27 The objects of the Disability Discrimination Act 1992 (Cth) (“DDA”) are to eliminate, as far as possible, discrimination against persons on the ground of disability in certain areas of public life, to ensure equality before the law and to promote recognition and acceptance within the community of the universal application of fundamental human rights.⁴⁰

2.28 The DDA prohibits direct and indirect discrimination on the basis of disability, broadly defined.⁴¹ Discrimination is also prohibited on the grounds that a person with a disability possesses a palliative or therapeutic device or an auxiliary aid, or is accompanied by an interpreter, reader, assistant or carer, guide dog etc.⁴² For reasons that are discussed in the next chapter, a limited obligation is imposed on, for example, employers and service providers to accommodate disabilities.

2.29 Disability discrimination is prohibited in the areas of work,⁴³ education,⁴⁴ access to premises,⁴⁵ provision of goods, services and facilities,⁴⁶ accommodation,⁴⁷ land,⁴⁸ clubs and incorporated associations,⁴⁹ sport,⁵⁰ and administration of Commonwealth laws and programs.⁵¹ Discrimination involving harassment is prohibited in employment, education and the provision of goods and services.⁵² Discriminatory requests for information⁵³ and discriminatory advertisements⁵⁴ are also prohibited.

2.30 A number of exceptions in the DDA attempt to ensure that people with disabilities are afforded equal opportunity. However, this limited duty to accommodate disabilities does not apply if to do so would cause the other party “unjustifiable hardship”.⁵⁵ Exceptions based on the public/private dichotomy are also present in the DDA.⁵⁶

2.31 The DDA binds the Crown in right of the Commonwealth and of each of the States.⁵⁷ The DDA states that it is not intended to exclude or limit the operation of a law of a State or Territory which is capable of operating concurrently with the Act.⁵⁸ The DDA also provides that where a person has made a complaint under a State or Territory law in relation to an act of disability discrimination, they are not entitled to make a claim under the Federal law in respect of the same act or omission.

COMMONWEALTH INDUSTRIAL RELATIONS LAWS

2.32 The second category of Commonwealth laws requiring consideration are those dealing with industrial relations. These are important at both a practical and a theoretical level. At the practical level, the Anti-Discrimination Board (“the ADB”) has consistently reported that between one half and two thirds of all inquiries and complaints received by it over the years relate to the area of employment.⁵⁹

2.33 The principal Commonwealth legislation is the WRA. It includes among its principal objectives the achievement of anti-discrimination principles as well as assisting employees to balance their work and other responsibilities effectively through the development of mutually beneficial work practices. The Act is intended to encourage employers to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.⁶⁰

2.34 In addition, the AIRC established under the WRA is required, in the performance of its functions, to take account of the principles embodied in the RDA, the SDA and the DDA, insofar as such principles relate to discrimination in relation to employment.⁶¹ Those principles are, therefore, at the very least relevant considerations to be taken into account by the AIRC in carrying out its general functions of preventing and settling industrial disputes.

2.35 At a third level of specificity, the WRA makes detailed provision in relation to both substantive grounds and procedural matters relating to the termination of employment.⁶² In this context, specific reference is made to particular grounds upon which employment must not be terminated. The objective of the unlawful termination of employment provisions is to assist in giving effect to the Discrimination (Employment and Occupation) Convention (“ILO Convention 111”) and the Family Responsibilities Convention.⁶³

Termination of employment on discriminatory grounds

2.36 The WRA specifically prohibits termination of employment on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.⁶⁴ Other grounds include membership or non-membership of a trade union and filing a complaint against an employer involving an alleged violation of law.⁶⁵

2.37 These grounds are clearly more extensive than those contained in the Commonwealth human rights laws referred to above. Further, the grounds of sexual preference, age and physical or mental disability are not expressly referred to in the ILO Convention 111. These grounds were specifically referred to in the previous Industrial Relations Act 1988 (Cth),⁶⁶ as were certain other Conventions and recommendations which were identified as falling within those to which the 1988 Act was said to give effect. The WRA now relies upon other bases of constitutional power, perhaps indicating some nervousness on the part of the Commonwealth as to the constitutional basis for some of the grounds.⁶⁷

Exceptions to unlawful termination on discriminatory grounds

2.38 It is not unlawful for a matter listed in s 170CK(2)(f) (“discriminatory grounds”) to be a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.⁶⁸ Nor is it unlawful to terminate upon discriminatory grounds the employment of a member of staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.⁶⁹

2.39 Excluded by regulation from both unlawful and unfair termination provisions are:

• employees engaged under a contract of employment for a specified period of time;
• employees engaged under a contract of employment for a specified task;
• an employee serving a pre-determined period of probation or a qualifying period of employment of not more than three months unless a longer period is reasonable having regard to the nature and circumstances of the employment;
• a casual employee engaged for a short period;
• trainees; and
• non-award employees who earned more than $64,000 (as indexed) in the previous year.⁷⁰

2.40 Whilst concerns about the extent of Commonwealth legislative power may limit the coverage of anti-discrimination laws which operate nationally, similar problems do not arise with the ADA because of the broad law-making power which the New South Wales Constitution gives to the State parliament. The ADA prohibits discrimination on the grounds of race, sex, marital status, disability, homosexuality, age, and also prohibits vilification on the grounds of race, homosexuality and HIV/AIDS. It applies in the area of employment, but also in other areas, such as the provision of accommodation, goods and services and education.

2.41 Problems may arise where the ADA applies to circumstances also covered by Commonwealth laws, such as discrimination on the grounds of sex, race and disability. Other considerations relate to procedural and administrative arrangements.

Inconsistency in general

2.42 Inconsistency between Commonwealth and State laws inevitably occurs in any federal system. This problem is resolved by s 109 of the Commonwealth Constitution which provides that, in the event of inconsistency between otherwise valid Commonwealth and State laws on a given subject matter, the Commonwealth law prevails. Despite the seemingly practical nature of the section, the High Court has frequently had to consider the question of when laws are inconsistent, that is, where concurrent operation of Commonwealth and State laws was not possible.⁷¹

2.43 In general terms, Commonwealth and State laws will be inconsistent if:

• it is not possible for a person to obey both laws at the one time;⁷² or
• the courts find that the Commonwealth Parliament intended to “cover the field”, that is, to provide a body of law which would operate to the exclusion of State laws.⁷³

2.45 Inconsistency can arise where State law extends Commonwealth law. State legislation may go further than the Commonwealth legislation by taking a provision beyond the scope of the Convention on which the relevant Commonwealth enactments are based or may go beyond the Commonwealth Act but not beyond the Convention. There will be no inconsistency in the former case, but there is a possibility of inconsistency in the latter. For instance, s 44 of the SDA allows the Sex Discrimination Commissioner to grant an exemption of up to five years from a specified provision of the SDA. The purpose of that section is to enable conduct which would otherwise be unlawful, to be engaged in lawfully, upon conditions if necessary. A provision of a State law which would render the exemption nugatory is directly inconsistent with the Commonwealth provision and would also not be capable of operating concurrently.

2.46 Inconsistency may also arise where State law is less extensive than the Commonwealth law. In certain instances, the State law does not define as unlawful that which is unlawful discrimination under Commonwealth legislation. For instance, the ADA does not apply to discrimination in employment where the number of persons employed does not exceed five (except on the ground of race, age or sexual harassment) or where employment is in a private educational authority. There is no “small business” exception under the Commonwealth Acts. Section 38 of the SDA does provide a partial exemption in relation to private educational authorities but it is limited to religious educational institutions. The ADA makes no distinction between religious and non-religious private schools and there is no requirement that the discriminatory act be justified by reference to doctrine, philosophy or creed as is the case under the SDA. Thus, discrimination by a private English College may be unlawful under the SDA but not under the ADA.

Commonwealth human rights laws

2.47 Inconsistency between State and Commonwealth human rights legislation has arisen in two cases.⁷⁵ The first, Viskauskas v Niland,⁷⁶ concerned the possibility of parallel complaint and investigation under the RDA and the ADA in relation to an allegation of racial discrimination in the provision of goods and services. The High Court held that there was clearly an inconsistency in respect of that subject matter as “the two legislatures have legislated upon the same subject, and have prescribed what the rules of conduct will be and (if it matters) the sanctions imposed are diverse”.⁷⁷ That being so, the State law was invalid to the extent of the inconsistency.

2.48 In response to that decision of the High Court, the RDA was amended to provide that it “is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or territory”.⁷⁸ That provision, by itself, was held to be ineffective to overcome the invalidity which had arisen as a result of the operation of s 109 of the Constitution.

Lack of equal operation

2.49 When legislating under the external affairs power, the Commonwealth must ensure that laws giving effect to treaty obligations are uniform in their operation within the States. The majority judgment of the High Court in Viskauskas stated that:

[t]he Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition or might otherwise detract from the efficacy of the Commonwealth law.⁷⁹

2.51 If this argument were thought to be correct, the only consequence for the State would be to provide an additional reason to ensure that State laws were available to fill any gap which might arise in Commonwealth laws. The Commission is not, however, inclined to place much weight upon this aspect of the matter as it does not consider the argument in favour of invalidity of the Commonwealth law to be persuasive. The views expressed by the High Court in Viskauskas appear to flow from the fact that the head of Commonwealth power relied upon to support the RDA was external affairs: that power would not allow the Commonwealth to make laws generally with respect to racial discrimination, but only laws dealing with that subject matter for the purpose of giving effect to an international Convention. It would be inconsistent with that purpose to allow for differential operation of a statute within Australia. On the other hand, where the Convention imposes an obligation upon signatories to protect human rights within their boundaries, there is no reason why the existence of Commonwealth legislation to give effect to that Convention should preclude State laws operating to similar effect or in a manner which would extend the protection provided by Commonwealth law.

Procedural issues

2.52 All inquiries under the RDA, the SDA and the DDA are conducted by the Human Rights and Equal Opportunity Commission (“HREOC”). At present the HREOC’s determinations are not binding on the parties other than the Commonwealth. An amendment made in 1992 provided a procedure which allowed a determination to take effect as an order of the Federal Court but, in the Brandy case,⁸¹ the High Court held that the HREOC, because it is not a judicial body, lacks the constitutional power to determine disputes finally. As the new procedure involved the exercise of Commonwealth judicial power by a body which was not a court, in contravention of the Constitution, the 1992 amendments were declared invalid and the former arrangements still apply. If a party does not comply with a determination, proceedings must be instituted in the Federal Court, involving a re-hearing of the matter. The ADA has an obvious procedural advantage in this area because the Equal Opportunity Tribunal⁸² can make binding orders.

2.53 Legislation has been introduced into the Commonwealth Parliament which will reform the functions and structure of HREOC in response to the Brandy decision. The hearing functions of HREOC will be dealt with by a Human Rights Registry within the Federal Court of Australia. Under the scheme, complaints will continue to be lodged, investigated and conciliated by HREOC. Matters which cannot be conciliated will be heard and determined by the Federal Court.

Administrative issues

2.54 In many cases a complainant must choose to proceed under State or Commonwealth anti-discrimination legislation where disability, race or sex discrimination is alleged. Sometimes, there may be distinct advantages in bringing an action under Commonwealth legislation.⁸³ A complainant who pursues a claim under the ADA is not entitled to lodge a subsequent claim under the Commonwealth legislation in respect of the same subject matter,⁸⁴ but the legislation does not expressly preclude unsuccessful claimants under the Commonwealth legislation from subsequently pursuing their claims under the ADA.

2.55 Where a choice of jurisdiction must be made, officers of HREOC or the ADB can do no more than outline the relevant provisions of the respective Acts leaving the complainant with what may be a difficult choice. The Commission received submissions from advocacy and interest groups who also mentioned the difficulties they faced when their constituents ask for advice as to which jurisdiction is preferable.⁸⁵ In practice, the most frequent problems with choice of jurisdiction to date have arisen in the sex discrimination area with employees in private enterprise.

2.56 Choice of jurisdiction is particularly problematic because of the lack of any co-operative arrangements between the two administering agencies, namely HREOC and the ADB. Until 1991, an agreement between the President of the ADB and the Commonwealth Attorney General appointed the President as agent of HREOC to receive and investigate complaints under the Commonwealth legislation. This arrangement was designed to achieve “one-stop shopping”. The objectives of the arrangement were to:

• provide the public with one point of contact for advice and for the handling of complaints, and thus relieve the complainant of having to decide which agency or law is more appropriate;
• facilitate the efficient handling of complaints and avoid the duplication of existing services in the State;
• avoid demarcation disputes between agencies, where a complaint could be made under both Commonwealth and State laws; and
• provide administratively effective and economical procedures.

2.58 The Commission’s Discussion Paper⁸⁷ raised the issue of whether a form of co-operative Federal arrangements should be adopted in New South Wales, and whether there are other appropriate administrative and legislative arrangements by which the responsibility of protecting human rights can be shared efficiently between State and Commonwealth bodies, overcoming the problems caused by the need to choose between Commonwealth and State legislation.

2.59 Many submissions suggested that a common reception point for complaints is critical for any workable scheme of case management and co-operation between the State and Commonwealth agencies handling anti-discrimination law.⁸⁸ At such a reception point, a complainant may be advised about procedural differences between the laws and factors likely to exclude the application of either State or Commonwealth law, such as jurisdictional problems or the extent of particular exceptions. The ADB articulated its preferred position as a co-operative arrangement with the Commonwealth, with the ADB being appointed as an agent for HREOC.⁸⁹ Once the Human Rights Registry of the Federal Court of Australia is established, there may also be advantages in linking that registry to any co-operative arrangements.

2.60 The Commission considers that the arguments for regular, consistent interaction between the State and Commonwealth agencies to alleviate the problems of choice of jurisdiction faced by complainants are compelling. This would involve re-establishing co-operative arrangements between the ADB and HREOC. An alternative option may be to establish a source of advice and assistance for complainants that is independent of both Commonwealth and State agencies.

Recommendation 1

Seek to formalise co-operative arrangements between the ADB and HREOC, whereby the ADB is appointed as an agent for HREOC and provides a common reception point for complainants, similar to the arrangement which existed until 1991.

Draft Anti-Discrimination Bill 1999: cl 128(3)

2.61 There are many areas in which the ADA currently operates which are also the subject of Commonwealth regulation by statutes which do not expressly refer to equal opportunity or anti-discrimination principles. Again, provisions in the ADA may be inoperative as a result of inconsistency with the Commonwealth law either because of a direct collision between the two laws or because the Commonwealth law was intended to cover the field within which it operated to the exclusion of all State laws.

2.62 Where the Commonwealth law covers a specific field of activity, it is less likely that an intention will be found to exclude the operation of State laws not specifically directed to the same area of activity. Thus a specific Commonwealth law relating to business activities is likely to be regulated against the general background of contract law and will not be inconsistent with, nor preclude the operation of, State laws governing contracts, unless there is a direct inconsistency.

2.63 In respect of the ADA, this problem has arisen in the context of life insurance. Thus, in the mid 1980s, a person was refused a premium waiver benefit by the AMP Society on the ground of his blindness. He complained under the ADA alleging disability discrimination. The AMP Society challenged the validity of the State law, asserting that the Life Insurance Act 1945 (Cth) expressed legislative intention to permit life insurance companies to determine the risks they would cover and the conditions on which they would cover those risks on the basis of actuarial advice and in a manner which would allow them to adopt such prudential practices as they thought fit. The High Court upheld the argument of the Society and found the prohibition on discrimination based on physical impairment in the ADA to be invalid.⁹⁰

2.64 It is neither necessary nor possible for the purposes of this chapter to consider all Commonwealth laws which might potentially conflict with the ADA.

Inconsistency: human rights law

2.65 The amendments introduced in 1983 into the RDA to permit the operation of State and Territory laws which were consistent with the Federal law was in the following form:

6A(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.

2.67 Limitations can occur in a number of ways. For example, the ADA does not prohibit sex discrimination in relation to employment, where the employer has less than five employees.⁹² There is no such limitation in the SDA. A somewhat different limitation arises in relation to relief available for contravention of the State and Commonwealth laws. Thus, where damages are claimed, a complainant under the ADA is not entitled to recover damages exceeding $40,000.⁹³ There is no such limitation under the SDA.

2.68 There are two ways of viewing such limitations in the ADA. First, it may be argued that the limitations are inconsistent with the Commonwealth law and an area of invalidity therefore arises. Whether the invalidity would be limited to the provision itself, or would infect other parts of the ADA, would depend upon questions of severability. The alternative approach is to view the ADA not as inconsistent with the SDA, but as providing partial relief which, to the extent that such relief is provided, is consistent with the objects of the Convention.

2.69 The Commission considers the latter approach to be more likely to be accepted by the courts. Although the former approach might provide greater protection under State laws in relation to unlawful discrimination, serious levels of uncertainty would arise depending upon whether the inconsistent provision were severable or not. Thus, in relation to damages awards, a court might have difficulty in striking down the limitation on awards by itself, as the limitation in part reflects the nature of the Tribunal in which jurisdiction is vested. The court might well not be satisfied that Parliament would have been happy to provide an unlimited jurisdiction to a Tribunal whose status and expertise fell short of the only body with such jurisdiction in New South Wales, namely the Supreme Court. Further, there appears to be no reason to find that exceptions in a State law which do not appear in a Commonwealth law are invalid. Whilst it would be relatively simple to rule that the exception was inoperative, there are other forms of inconsistency which could not be so readily dealt with. For example, the New South Wales Parliament might decide that the ADA should deal with sex discrimination, but not in the important area of employment. So long as the provisions in other areas were consistent with the SDA, there would be little reasons for striking down those provisions simply because the SDA provided protection in an additional area.

2.70 Accordingly, the Commission is of the view that the State law can validly operate concurrently with Commonwealth law except to the extent that there is a direct collision between a permission and a prohibition. There would be direct inconsistency if, for example, the ADA expressly provided that discrimination on the ground of sex was lawful in workplaces with less than five employees. The Commonwealth laws should therefore be given careful consideration to ensure that such direct inconsistency does not arise.

Duplication

2.71 Whilst the ADA may validly overlap with Commonwealth law in the area of human rights, there is a separate question as to whether such duplication is desirable. If in truth there were total uniformity between State and Federal laws, that would tend to raise legitimate questions as to the desirability of maintaining a dual system. That is not in fact the case, however, for a number of reasons. First, the ADA applies in relation to numerous grounds of discrimination which are not available under Commonwealth law. To remove particular grounds, including the central or core grounds of race and sex would make the ADA piecemeal and would not give a clear message to the community as to the unacceptability of discrimination on these important grounds which would violate human rights principles.

2.72 Secondly, in key respects, the ADA predated Commonwealth laws. To remove important areas simply because the Commonwealth has now legislated would also tend to lead to confusion in the public mind as to the commitment of the State legislature to protecting citizens against violations in key areas of human rights. The practical difficulties would not end there: to be consistent, the State legislature would have to withdraw protection in any area in which Commonwealth protection became available and would also have to remain vigilant to reinstate protection in areas where Commonwealth laws were declared invalid or were repealed. As repeal can occur by implication as well as by express provision in a statute, this task would give rise to considerable administrative, as well as legislative, inefficiency.

2.73 Thirdly, at an administrative level, there are pragmatic reasons for ensuring that State bodies and tribunals can continue to monitor violations in key areas of race, sex and disability discrimination. In addition, there are procedural benefits to the public in having State tribunals available, particularly since the High Court held that HREOC is not able to make binding decisions in relation to complaints.⁹⁴ There is no guarantee that Commonwealth agencies, burdened with a greatly increased case load, would be able to cope effectively with complaints in key areas.

2.74 As the Commonwealth legislation is clearly intended to co-exist with State laws, the proper goal for the State is to ensure that its laws provide comprehensive and effective protection to its citizens, whilst ensuring that confusion arising from inconsistency between Commonwealth and State laws and administrative difficulties arising from the dual system are both minimised. These principles will inform the recommendations which appear in subsequent chapters.

Industrial relations laws

2.75 Because the area of employment is a critical area for the operation of discrimination laws, questions of inconsistency between industrial law and discrimination law arose soon after the commencement of the anti-discrimination legislation. The leading case involved a complaint by a woman that she was refused employment by Ansett Transport Industries as a pilot on the ground of her sex. Ansett argued that decisions by it as to who it would employ as pilots were made under a Commonwealth industrial award and that the provisions of the award (which said nothing about equal opportunity or discrimination) were inconsistent with the prohibition of sex discrimination contained in the Equal Opportunity Act 1977 (Vic). The High Court held that there was no inconsistency between the award and the State law because the provisions of the award, which were in quite general terms, should be read subject to the general laws, including relevant State laws.⁹⁵

2.76 Whilst the State law survived the challenge in that case, warnings were sounded by two members of the Court (Justices Mason and Wilson) each of whom was concerned that the grievance procedures in relation to dismissals might give rise to inconsistency, although no such question arose in the particular circumstances then before the Court. Since that time, it has become common for Commonwealth awards to contain specific provisions relating to discrimination in relation to employment, terms and conditions of employment and dismissal. This process significantly increased the danger that State laws would cease to have effect in areas covered by Commonwealth industrial awards. In its original form, the ADA excepted from its prohibitions things done in compliance with, amongst other things, industrial awards. Accordingly, the potential for a Commonwealth award to override a State Act was consistent with the ADA’s own exception in relation to State awards.⁹⁶ However, that exception was removed in 1994⁹⁷ and there have been continuing extensions of anti-discrimination principles now found not merely in awards, but in industrial relations laws themselves.

Commonwealth industrial relations law

2.77 Federal awards are not themselves Federal laws, but they obtain their force and effect for the purposes of s 109 of the Constitution from the legislation under which they are created. Thus, the Conciliation and Arbitration Act 1904 (Cth) contained a specific provision providing that awards made under it prevailed over State law.⁹⁸ That provision has been continued in more recent legislation, although there is now a qualification which will limit the invalidity of the State law to inconsistency arising from a direct collision and will prevent invalidity where there may have been an intention to cover the field.

2.78 Section 152 of the WRA states:

(1) Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.

(1A) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award.

because some Federal system employees have been denied access to State unfair dismissal remedies on the basis that award clauses dealing with termination, change and redundancy “cover the field” to the exclusion of a State remedy. This amendment allows these Federal system employees to utilise any access to State remedies provided for them by a State law or award.

This provision was intended to ensure that an employee covered by a Federal award … would not be prevented from applying for an unfair dismissal remedy under a State law, solely because of the existence of a termination of employment provision in their federal award or agreement. However, it is considered that this provision might have the unintended consequence of rendering employers covered by federal awards subject to other State provisions on termination of employment, for example in relation to severance pay or redundancy consultation.

2.82 The Commission considers that there is little force in that argument because the legislation is beneficial and is therefore likely to be given a broad, rather than a restrictive interpretation. However, the possibility that the scope of any State legislation, including the ADA, may be limited by the operation of s 109 of the Constitution must always be a relevant consideration.

2.83 Further, whether s 152 will allow the ADA to operate in respect of these complaints may also depend upon whether it can be said that the ADA “provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law)”.¹⁰¹ It is arguable that the breadth of this provision means that it would cover anti-discrimination legislation.

2.84 Even if s 152(1A) does contemplate the concurrent operation of State anti-discrimination legislation, however, it might still be arguable that the State law is directly inconsistent with the WRA. While it was not necessary for the final decision, the Full Bench of the Industrial Relations Commission of NSW observed in relation to the question of inconsistency between State and Commonwealth industrial relations law, in the context of s 152 of the WRA:

[g]iven that, generally speaking, two tests of inconsistency between Commonwealth and State laws have developed – “cover the field” ... and “direct” inconsistency ... sub-s (1A), as the parties and interveners have accepted, removes any possibility of conflict according to the “cover the field” approach; and that was so even though, certainly on one view, the Commonwealth Act in respect of termination of employment and remedies in relation thereto is wide and comprehensive in its scope ...

Nevertheless, a conflict arising between particular aspects of the relevant Commonwealth and State laws may still occur in terms of direct inconsistency or collision.¹⁰²

Awards and other anti-discrimination provisions

2.86 The WRA provides that in the performance of its functions, the AIRC must take account of anti-discrimination principles embodied in Commonwealth law.¹⁰⁴ The AIRC must also take account of the Family Responsibilities Convention¹⁰⁵ and must convene a hearing in relation to an award or agreement upon referral by the Sex Discrimination Commissioner.¹⁰⁶ If discrimination is found, the AIRC must remove the discrimination by setting aside the terms of, or varying, the award or agreement.¹⁰⁷ In certain circumstances, upon application by the Sex Discrimination Commissioner, an employee or a trade union, the AIRC may make orders to ensure that there will be equal pay for work of equal value.¹⁰⁸

2.87 Australian Workplace Agreements (“AWAs”) between an employer and an employee must include provisions relating to discrimination. In their absence, such provisions will be implied.¹⁰⁹ Any dispute concerning the discrimination provisions in the AWA must be processed initially under the dispute resolution procedure in the AWA. In addition, the provisions state that they do not allow any treatment that would otherwise be prohibited by anti-discrimination provisions in applicable Commonwealth, State or Territory legislation.¹¹⁰

2.88 Certified agreements must satisfy a “no disadvantage test” which asks whether the approval or certification would result, on balance, in a reduction in the overall terms and conditions or employment of employees under a relevant award or any other relevant law.¹¹¹ The AIRC must refuse to certify an agreement if it thinks a provision discriminates against an employee on discriminatory grounds, subject to exceptions.¹¹²

2.89 The freedom of association provisions of the WRA prohibit discrimination between union members and non-union members. Thus, discrimination on the ground of trade union activity is introduced into New South Wales in the absence of such a ground in the ADA. Where, on application from a person bound by a Commonwealth industrial agreement or award, the AIRC is satisfied that the agreement or award contravenes the freedom of association provisions of the WRA, the AIRC must make appropriate variations so as to remove the objectionable provisions.¹¹³

APPLICATION TO THE COMMONWEALTH

2.90 There is a further question which arises in this context, namely the application of the ADA to the Commonwealth itself and its authorities and instrumentalities. Where these bodies operate or conduct business in New South Wales, they will be subject to New South Wales laws of general application, in the absence of any inconsistency between those laws and a relevant Commonwealth law, such as that establishing the Commonwealth body.¹¹⁴ Such a result may be achieved either by an express statement in the State Act indicating that it binds the Crown in right of the State and in all other capacities, within the limits of the power of the State Parliament, or it may be achieved by the operation of s 64 of the Judiciary Act 1903 (Cth).¹¹⁵

2.91 Two matters have relevance in relation to the operation of a State law such as the ADA. First, there is a question whether, as a matter of statutory construction, the law does apply to the Commonwealth and Commonwealth bodies. It used to be the case that a relatively inflexible presumption applied that, in the absence of express words or necessary implication, the Crown was not bound by the State Act in any capacity.¹¹⁶ That presumption was held to apply both in relation to the Crown in right of the legislating polity and in relation to the Crown in respect of any other polity. More recently, that inflexible rule has been abandoned in favour of an approach which takes into account a range of matters, including the subject matter of the statute, its terms, its general purpose and effect and the activities of the executive government which would be affected were it to have application.¹¹⁷ The uncertainty of these approaches is, however, overcome by express words indicating that the Act intends to bind the Crown in all aspects.

2.92 The second question is whether that is a proper coverage for the ADA. The arguments in favour of such a result are themselves arguments which appeal to basic human rights, namely that so far as possible all individuals should be treated equally before the law. The protections available to individuals for example, in areas of employment, should not depend upon the identity of the employer. Further, the underlying concerns of the ADA are to provide protection in relation to fundamental human rights, a concern which is reflected in equivalent Commonwealth legislation to the extent that Commonwealth Constitutional power permits. Accordingly, there is consistency with that common purpose in seeking to ensure that the Commonwealth and its bodies and authorities are subject to the ADA. Finally, in areas where the Commonwealth has legislative power, it may exclude the operation of a State Act, if it considers that appropriate: the Commonwealth need not be subject to a State Act in any area where it deems such coverage inappropriate.

2.93 Accordingly, the Commission is satisfied that the ADA should be expressed to bind the Crown, not only in the right of the State, but in all other respects so far as the legislative authority of the State Parliament permits.

Recommendation 2

The ADA should expressly state that it binds the Crown in right of the State and in all other capacities so far as the legislative authority of the State Parliament permits.

Draft Anti-Discrimination Bill 1999: cl 6

2.94 Any changes to the ADA should take account of relevant principles contained in international Conventions and other instruments to which Australia is a party and to similar principles contained in Commonwealth laws. Such provisions have legal consequences, whether directly or indirectly, for all people living in New South Wales. In the course of considering possible reform of the ADA, the Commission has also paid attention to analogous legislation in other States and Territories of Australia and in overseas jurisdictions which embrace or reflect the historical tradition of the common law.

2.95 The direct legal significance of Commonwealth laws arises from the operation of s 109 of the Constitution which provides that Commonwealth laws prevail over State laws in areas where both have legislative power and in circumstances where there is inconsistency between the laws. There being Commonwealth laws which address issues of discrimination, it is necessary to ensure, so far as possible, that the ADA will not intrude into areas in which it would not be effective. However, the Commission is satisfied that the present form of Commonwealth laws effectively permits the concurrent operation of State laws. Further, the Commission is satisfied that it is neither necessary nor appropriate for the State to withdraw from areas where Commonwealth legislation operates. No other State or Territory in Australia appears to have taken a contrary view on this matter.

2.96 While the Commission is mindful of the need to maintain both legislative consistency and administrative co-operation to ensure that the benefits of the dual system are not outweighed by the disadvantages which can arise from it, the Commission’s recommendations must be restricted to the former area, namely legislative consistency. Accordingly, this principle will inform the specific recommendations made in the ensuing chapters.

2.97 In this chapter it has been noted that inconsistency may arise in relation to Commonwealth laws which do not themselves expressly address discrimination as an issue. It is neither necessary nor practicable to consider all potential areas of inconsistency. However, where there are particular laws which are likely to give rise to potential inconsistency, these are dealt with in appropriate sections of the following chapters. For example, Commonwealth regulation of superannuation and insurance will be considered in the discussion which relates to those particular areas of operation of the ADA.

2.98 Consideration has been given in this chapter to the operation of the WRA, but not to the operation of the Industrial Relations Act 1996 (NSW) (“IRA”), despite the fact that both State and Commonwealth Acts have provisions which recognise and give effect to principles of anti-discrimination. Consideration of the IRA falls outside the purpose of this chapter: however, the IRA contains important provisions which result in overlap between it and the ADA in the area of employment and detailed consideration will need to be given to the scope of the IRA and those areas of overlap when considering the specific area of employment in Chapter Four.

Footnotes
1. Other heads of legislative power may be relied on: for instance, s 5 of the RDA draws on the power in s 51 (xxvii) of the Constitution (Cth) with respect to immigration and emigration; similarly s 9 of the SDA draws on a variety of heads of power such as the trade and commerce power and the corporations power.

2. CERD, incorporated in the Sch to the RDA; CEDAW, incorporated in the Sch to the SDA; CROC; ILO Convention 111, incorporated in Sch 1 of the HREOC Act; ICCPR, incorporated in Sch 2 of the HREOC Act; UN Declaration on the Rights of the Child 1959, incorporated in Sch 3 of the HREOC Act; UN Declaration on the Rights of Mentally Retarded Persons 1971, incorporated in Sch 4 of the HREOC Act; UN Declaration on the Rights of Disabled Persons 1975, incorporated in Sch 5 of the HREOC Act; ILO Convention 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities 1981.

3. This is an important mechanism for the advancement of human rights as the Human Rights Committee may require ratifying States to account for alleged violations. Thus, the decision of the Human Rights Committee in relation to the first complaint under the Protocol, lodged by Mr Nicholas Toonen about certain sections of the Tasmanian Criminal Code which violated Australia’s obligations under the ICCPR, prompted the enactment of the Human Rights (Sexual Conduct) Act 1994 (Cth).

4. RDA s 9.

5. RDA s 9(1A). For a detailed discussion of the definitions of “direct” and “indirect” discrimination see Chapter 3.

6. RDA s 11.

7. RDA s 12.

8. RDA s 13.

9. RDA s 14.

10. RDA s 15.

11. RDA s 16.

12. RDA s 8(1).

13. RDA s 8(2).

14. RDA s 9(3) and 15(4).

15. RDA s 12(3).

16. RDA s 15(5).

17. RDA s 6.

18. RDA s 6A.

19. SDA s 5.

20. SDA s 6.

21. SDA s 7A.

22. SDA s 7.

23. SDA Pt 2 Div 3. Harassment may also be a form of discrimination on the ground of sex. For a detailed discussion of harassment see Chapter 7.

24. SDA s 86.

25. SDA s 27.

26. According to a 1997 publication of the Commonwealth Department of Workplace Relations, Changes at Work, in 1995 the proportion of workplaces covered by awards was 96%, compared to 98% in 1990. The proportion seems to be declining. Many people from the groups most likely, on past experience, to suffer unlawful discrimination (women, people of non-English speaking background, workers aged between 18 and 30) are not covered by awards because they are casual or temporary employees especially if they are part-time. As such, their only recourse, if they suffer unlawful discrimination in the course of their employment, is under anti-discrimination legislation. See A Morehead, M Steele, M Alexander, K Stephen and L Duffin, Changes at Work – The 1995 Australian Workplace Industrial Relations Survey (Longman, Melbourne, 1997) at 207.

27. SDA Pt 2 Div 1.

28. SDA s 21.

29. SDA s 22.

30. SDA s 23.

31. SDA s 24.

32. SDA s 25.

33. SDA s 26.

34. SDA s 7A.

35. For example, although discrimination on the basis of sex is prohibited in the area of employment, an exception is provided where a person is employed to perform “domestic duties” in the home of the discriminator: SDA s 14(3). See also SDA s 23(3): provision of accommodation for no more than three persons. For a detailed discussion of exceptions under the ADA, see Chapters 4 and 6.

36. SDA s 7D and s 25(3).

37. SDA s 9.

38. SDA s 3(a).

39. SDA s 9(17).

40. DDA s 3.

41. See DDA s 5 and 6 as defined in s 4. For a detailed discussion of discrimination on the ground of disability see Chapters 3 and 5.

42. See DDA s 7, 8 and 9.

43. DDA Pt 2 Div 1.

44. DDA s 22.

45. DDA s 23.

46. DDA s 24.

47. DDA s 25.

48. DDA s 26.

49. DDA s 27.

50. DDA s 28.

51. DDA s 29.

52. DDA Pt 2 Div 3.

53. DDA s 30.

54. DDA s 44.

55. See, for example, DDA s 15(4) and 24(2). For example, an employer would not be required to hire a person who was blind for a position as an airline pilot, even if the person could perform the inherent requirements of the job if expensive audio equipment were installed by the employer.

56. For example, although discrimination on the ground of disability is prohibited in the area of accommodation, an exception is provided where the accommodation is for no more than three persons and is provided in the residence of the discriminator (or a near relative of the discriminator): DDA s 25(3). See also Chapters 4 and 6 for a detailed discussion of exceptions.

57. DDA s 14.

58. DDA s 13.

59. At a theoretical level, laws primarily relating to industrial relations now contain express provision in relation to equal opportunity and prohibitions on discrimination. Accordingly, and relevantly for the purposes of s 109 of the Constitution (Cth), they fall between the human rights legislation and laws of general application.

60. WRA s 3 (a), (j) and (k).

61. WRA s 93.

62. WRA Pt 6A Div 3.

63. WRA s 170CK(1).

64. WRA s 170CK(2)(f).

65. WRA s 170CK(2)(b), (c) and (e).

66. The title of this Act was changed to the Workplace Relations Act 1996 (Cth) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) s 3 and Sch 19, effective 25 November 1996.

67. WRA s 170CB.

68. WRA s 170CK(3).

69. WRA s 170CK(4).

70. Workplace Relations Regulations 1989 (Cth) reg 30B-30BB.

71. See Viskauskas v Niland (1983) 153 CLR 280 and DP 30 para 2.20-2.27.

72. R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23.

73. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 and Ex parte McLean (1930) 43 CLR 472 were cases in which the Court held that the operation of State law was excluded even though it was possible to obey both at the same time. For example, if a State law provided that the maximum working week was 44 hours, but a Commonwealth law provided that it was 48 hours, compliance with the State law would also constitute compliance with the Commonwealth law. Nevertheless, in Clyde Engineering it was held that a State law which fixed wages on a 44 hour week had no operation, because the Court decided that the Commonwealth law (which fixed wages on a 48 hour week) was intended to “cover the field” of working hours.

74. See RDA s 6A(1); SDA s 10(3); and DDA s 13(3). In effect this means that the relevant Commonwealth enactment is not intended to exclude or limit the operation of a State law if the latter furthers the objects of the Convention and is capable of operating concurrently with the Commonwealth Act. While this reduces possible inconsistencies it does not remove the possibility of direct inconsistency which may still arise where a particular provision of a Commonwealth law is impinged upon or derogated from by a State law.

75. Viskauskas v Niland (1983) 153 CLR 280; and Dao v Australian Postal Commission (1987) 162 CLR 317.

76. (1983) 153 CLR 280.

77. Viskauskas v Niland at 293.

78. Racial Discrimination Amendment Act 1983 (Cth), s 3 inserting new s 6A in the RDA.

79. Viskauskas v Niland (1983) 153 CLR 280 at 292 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ.

80. J Macken, G McCarry and C Sappideen, The Law of Employment (3rd edition, Law Book Company, Sydney, 1990) at 529.

81. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

82. Soon to become the Equal Opportunity Division of the NSW Administrative Decisions Tribunal: See Administrative Decisions Tribunal Act 1997 (NSW) and Administrative Decisions Legislation Amendment Act 1997 (NSW).

83. Particularly if a wider range of situations is covered: as under RDA s 9.

84. RDA s 6A(2); SDA s 10(4); and DDA s 13(4).

85. The Australian Quadriplegic Association outlined these difficulties, and questioned whether the State needs to be involved in disability legislation at all when there is adequate Commonwealth legislation: Australian Quadriplegic Association, Submission. A number of other submissions also noted the problems relating to dual coverage and expressed their support for uniformity of State and Commonwealth legislation. See The Association of Superannuation Funds of Australia Ltd, Submission at 1; Catholic Education Commission NSW, Submission at 7; NSW Department of Health, Submission at 2; Disability Discrimination Legal Centre, Submission at 6; Eastern Sydney Area Health Service, Submission at 1; Gay and Lesbian Rights Lobby, Submission at 2; Law Society of NSW, Submission at 2; NSW Ministry for the Status and Advancement of Women, Submission at 7; NSW Independent Teachers Association, Submission at 3; NSW Women’s Advisory Council, Submission at 3; Public Service Association NSW, Submission at 1; D Robertson, Submission at 3.

86. Australia, HREOC, Annual Report 1990-1991. However, the Commission understands that it is proposed to re-negotiate the arrangements.

87. DP 30.

88. NSW Department of Health, Submission at 2; Law Society of NSW, Submission at 2; NSW Ministry for the Status and Advancement of Women, Submission at 7; NSW Department of Industrial Relations, Employment, Training and Further Education, Submission at 11; Public Service Association NSW, Submission at 1; D Robertson, Submission at 3.

89. Anti-Discrimination Board, Submission 1 at 14.

90. See AMP Society v Goulden (1986) 160 CLR 330. Since that case was decided the Life Insurance Act 1945 (Cth) has been repealed and it is not clear whether the same conclusion would result from the current Life Insurance Act 1995 (Cth).

91. SDA s 10(3) and DDA s 13(3).

92. ADA s 25(3)(b).

93. ADA s 113(1)(b).

94. See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

95. See Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.

96. See ADA s 54.

97. See Anti-Discrimination (Amendment) Act 1994 (NSW) Sch 4(23).

98. Section 165.

99. See Workplace Relations and Other Legislation Amendment Act 1997 (Cth) Sch 5(1).

100. Emphasis added.

101. In its original form, the provision referred to a State law or State award which “makes provisions in respect of the termination of an employee’s employment”.

102. Moore v Newcastle City Council: Re Civic Theatre Newcastle (1997) 43 NSWLR 614 at 622.

103. See Metal Trades Industry Association of Australia v The Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632.

104. WRA s 93. These principles include: freedom from racial discrimination (RDA s 15), freedom from discrimination on the basis of sex, marital status, pregnancy or potential pregnancy (SDA Pt 2 Div 1), freedom from sexual harassment (SDA s 28B), freedom from discrimination on the basis of family responsibilities in the area of termination of employment (SDA s 14(3)) and freedom from disability discrimination (DDA s 15).

105. WRA s 93A.

106. WRA s 111A. However, this provision has rarely been used.

107. WRA s 113(2A). Note that the award review mechanism in s 150A, to remove discriminatory provisions, has been repealed.

108. WRA Pt 6A Div 2. Note that no order may be made where there is an adequate alternate remedy.

109. WRA s 170VG; Workplace Relations Regulations 1989 (Cth) reg 30ZI and Sch 8.

110. Workplace Relations Regulations 1989 (Cth) Sch 8(c).

111. WRA s 170LT and 170XA.

112. WRA s 170LU(5). See also WRA s 170LV.

113. WRA s 298Z, Pt 10A. The freedom of association provisions specifically provide that an employer must not dismiss or discriminate against an employee by reason of their association, or lack of association, with an industrial organisation. See WRA s 298K.

114. Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399, applied in Dao v Australian Postal Commission (1987) 162 CLR 317 at 337; cf Re Residential Tenancies Tribunal of NSW; ex parte Defence Housing Authority (1997) 190 CLR 410.

115. Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254.

116. See Bradken Consolidated Ltd v Broken Hill Pty Ltd (1979) 145 CLR 107.