23. The application of s.30 of the HR Act in Tribunal matters was discussed by Presidential Member Spender in the matter of Allatt & ACT Government Health Directorate, in interpreting the Freedom of Information Act 1989 and Health Act 1993.
24. The Tribunal first questioned if a human right was enlivened by the legislation, and then followed the methodology adopted by Justice Penfold of the ACT Supreme Court in Re Application for Bail by Islam, notwithstanding the High Court’s decision in the Victorian case of R v Momcilovic.
25. In Islam, her Honour held that s.30 of the HR Act should be applied at an early stage in the process of interpreting legislation (rather than at the end). In Allatt, the Tribunal confirmed that s.30 is not a special rule of interpretation, and noted that this aspect of the Victorian Court of Appeal decision in R v Momcilovic was upheld by the majority of the High Court, and cited the statement of French CJ that the provision: 
“…requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms.” 
26. The Commission agrees that the High Court decision in Momocilivic does not appear to have negated the ACT authority of Penfold J’s decision in Islam. This methodology determined by Penfold J, and adopted by the Tribunal in Allatt is:
Preliminary question: Does the Legislation Enliven a Human Right? If so, proceed to apply:
Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the HR Act but also meanings that would be available apart from s 30.
Step 2: Temporarily set aside any available meaning that is not human rights-compatible under s 30.
Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).
Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.
Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.
Step 4: Undertake an inquiry under s 28 of the HR Act into whether any of those re-instated available meanings can be justified.
Step 4A: If only one meaning can be justified, it is adopted.
Step 4B: If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.
Step 4C: If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.
27. Section 8 of the Discrimination Act may excuse ‘reasonable’ behaviour that nonetheless engages the right to equality under the HR Act (and potentially other rights). Section 8 of the Human Rights Act states:
8 Recognition and equality before the law
(1) Everyone has the right to recognition as a person before the law.
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
28. As provided for in the example, s 8 of the HR Act covers race amongst its attributes. Having already found that the respondent’s conduct represents direct race discrimination, the Tribunal has confirmed that Dr Wang’s right to equality has been limited.
Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying s 30 of the HR Act but also meanings that would be available apart from s 30.
29. In Allatt, the Tribunal first applied s.139 of the Legislation Act 2001:
139 Interpretation best achieving Act’s purpose
In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
30. The objects and Explanatory Statement to the Discrimination Act suggests its purpose is to eliminate unfair discrimination and sexual harassment. Hunyor has noted that legislation drafted to protect against racial discrimination should be given a beneficial meaning. In citing Waters v Public Transport Corporation he suggests the assessment of reasonableness should be determined with this in mind:
‘The apparent reasonableness of a requirement or condition will limit the circumstances in which indirect discrimination can be shown. Courts should, however, be slow to find that requirements with a discriminatory impact are ‘reasonable’, consistent with the principle that when construing legislation designed to protect human rights, courts have a special responsibility to take into account the purposes and objects of the legislation (to eliminate racial discrimination) and, accordingly, should construe exemptions and provisions restricting rights narrowly.’
31. Sections 141 and 142 of the Legislation Act notes that non-legislative context may also be considered including Explanatory Statements and introduction and debate speeches.
32. Section 31 of the Human Rights Act allows International Law and the judgments of foreign and international courts and tribunals, to be considered in interpreting rights.
33. Section 8 is silent on which party bears the onus, if any, of proving indirect discrimination was reasonable.
34. In Re Secretary of the Department of Foreign Affairs and Trade v Styles, in considering the then Federal Sex Discrimination Act 1984 (‘the SDA’), the Full Federal Court suggested that as unreasonableness was part of the construction of indirect discrimination, the complainant bore the onus of providing it. It should be noted that the relevant provision was arguably constructed differently to that provided in s 8 of the ACT legislation, in that it required that the condition or requirement was shown to be ‘not reasonable’. Subsection 5 (2) of the SDA stated:
“For the purposes of this Act, a person (in this sub-section referred to as the ‘discriminator’)
discriminates against another person (in this sub-section referred to as the ‘aggrieved person’)
on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to
comply with a requirement or condition –
(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
35. In Waters v Public Transport Corporation, Justice McHugh of the High Court, considering the relevant section of the Victorian Equal Opportunity Act 1984, supported this assertion. Again, that concerned the interpretation of a provision that was constructed on the basis that conduct would be unlawful if it was not reasonable:
For the purposes of sub-section(l) a person discriminates against another person on the ground of the status or by reason of the private life of the other person if—
(a) the first-mentioned person imposes on that other person a requirement or condition with which a substantially higher proportion of persons of a different status or with a different
private life do or can comply;
(b) the other person does not or cannot comply with the requirement or condition; and
(c) the requirement or condition is not reasonable.
36. In contrast, s.8(2) of the ACT Discrimination Act states that s 8(1) does not apply where condition or requirement ‘is reasonable’. Arguably, the ACT Discrimination Act instead requires that absent proof of reasonableness, a condition or requirement is unlawful. Support for this interpretation is found in s 70 of the Act:
70 Onus of establishing exception etc
If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be unlawful under part 3, part 5, section 66 or part 7, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.
37. This provision includes reference to not only to ‘exceptions’ and ‘exemptions’, which are explicitly named as ‘defences’ in various parts of the Act, but also to ‘excuse, qualification or justification’. None of these words are used in this context elsewhere in the Act, and arguably their inclusion suggests that the onus created by s 70 is intended to apply beyond the named ‘Exceptions’ and ‘Exemptions’ to other provisions of the Act, of which s.8(2) would be the most apparent.
38. The legislature did intend to formulate the definition of indirect discrimination differently to other jurisdictions at the time of the Act’s passage (1991), including ‘simplifying’ the existing definitions in force at the time. Rosemary Follett MLA, the then Chief Minister, stated in introducing the Bill:
‘One of the most significant changes made to the Bill is in the definition of what constitutes discrimination. The traditional definition which is used in all other State legislation has proved difficult and often unworkable in the courts. The definition in this Bill is a clear statement of what we mean by discrimination, without the unnecessary tests and conditions which unduly complicate the matter in other jurisdictions.’
39. Section 8 of the HR Act is based on Article 26 of the International Covenant on Civil and Political Rights , and support for the proposition that conduct must be demonstrably reasonable is found in General Comment 18 of the Human Rights Committee. This General Comment provides guidance on the interpretation of Article 2, and notes that:
‘…Not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.’
40. Some support is also found for the proposition in the jurisprudence of the European Court of Human Rights. For example, in the recent case of Eweida and Others v United Kingdom, the Court summarised its approach to indirect discrimination as follows:
‘Such a difference of treatment between persons in relevantly similar positions – or a failure to treat differently persons in relevantly different situations – is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’
41. In citing a number of relevant European Council Directives and related case law, the European Union Agency for Fundamental Rights summarises the situation as follows:
‘To address the difficulty of proving that differential treatment was based on a protected ground, European non-discrimination law allows the burden of proof to be shared. Accordingly, once the claimant can show facts from which it can be presumed that discrimination may have occurred, the burden of proof falls on the perpetrator to prove otherwise. This shift in the burden of proof is particularly helpful in claims of indirect discrimination here it is necessary to prove that particular rules or practices have a disproportionate impact on a particular group.’
42. Finally, discussed further below, the Victorian courts and tribunals have found that a Public Authority bears the onus of showing its actions are reasonable and proportionate when they engage a legislated right. As the Tribunal has already noted in the Interim Decision, the respondent’s policy limits Dr Wang’s right to equality.
43. While somewhat unsettled, the weight of these authorities when applied to the particular construction of s 8 of the Discrimination Act, suggests that if either party carries a burden, the onus is on the respondent to demonstrate that the requirement or condition was reasonable, likely on the balance of probabilities.
44. The so-called Briginshaw principle is often cited as precedent for the proposition that the strength of the evidence required to meet the standard of proof in civil cases may change. Discrimination matters have been identified as ‘serious matters’ for these purposes. However, several commentators have cautioned against a blanket approach to determining the standard of proof in finding unlawful discrimination. For example, in writing about racial discrimination, Hunyor’s notes:
‘Furthermore, it should be recognised there is nothing ‘inherently unlikely’ about racism or racial discrimination, such that under the Briginshaw principle a higher standard of evidence should be required to make out such a claim. As I have argued above, factors such as race are an inevitable influence on decisions which require a differentiation of candidates based on their personal attributes.’
45. Similarly, De Plevitz suggests that the absolute application of Briginshaw may be appropriate in other civil contexts, such as particularly serious matters (citing case law regarding sexual abuse allegations, medical negligence, fraud and others), or where the outcome of the decision may be irreversible, but not in the ‘blanket’ manner that has occurred in Australian discrimination law. She cites the decision of the Full Bench of the New South Wales Industrial Relations Commission, on the basis that its reasoning in questioning the application of the standard to unfair dismissal was equally applicable to anti-discrimination legislation. The Court observed that to apply Briginshaw indiscriminately was to harbour
‘…a fundamental misconception of the test and scheme of the Act relating to unfair dismissals. For example, a conclusion that a dismissal was harsh, unreasonable, or unjust does not necessarily involve any finding of legally or morally reprehensible conduct on the part of the employer. It may be sufficient, for example, to find the test met where the conduct of the employer, or the circumstances of the dismissal, result in a situation where the dismissal viewed objectively can be said to be harsh, unreasonable, or unjust. That does not involve necessarily a finding as to the employer’s intent, or that the employer has acted reprehensibly, illegally, or fraudulently. Indeed, such a finding could arise from mere inadvertence on the employer’s part’.
46. In Siddique v Director General of the Department of Education and Communities NSW, the New South Wales Civil and Administrative Tribunal has clarified how Briginshaw should be applied in anti-discrimination cases. The Tribunal cited Branson J in the Federal Court case of Qantas Airways v Gama,and suggested the Briginshaw test in discrimination law is about the quality of the evidence, not the standard of proof.
‘She indicated that “Briginshaw” was about the quality of the evidence, not the standard of proof. She stated, “The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises … that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.” ‘
47. Presidential Member Spender of the ACAT in the matter of Kovac v Australian Croatian Club Limited adopted a similar position:
‘However, when assessing the gravity of the matters alleged, the Tribunal notes that this matter does not involve an allegation of fraud, or lack of probity. Although the Tribunal recognises that a finding that the respondent has treated the applicant unfavourably because of his political views does have serious consequences, its gravity is on the lighter end of the sliding scale, so it is less serious than vilification, which the NSW Appeal Panel found, in turn, to ‘not sit as high in the spectrum of gravity’ as the allegations in Briginshaw itself, that is, an adverse finding of adultery against a wife in public court proceedings in the 1930s. Similarly the Tribunal does not consider the allegation to be as serious as an allegation of sexual harassment against a public figure, i.e. a politician, which was in issue in De Domenico. Therefore, although the Full Federal Court upheld the AAT’s application of the Briginshaw standard in De Domenico, the Tribunal does not consider that it is bound by the standard of proof adopted in the particular circumstances of the De Domenico case.’
48. Therefore, for the purposes of this matter, the application of Briginshaw should not be on the assumption that all discrimination matters are ‘serious’, but rather the Tribunal should consider what the appropriate quality of evidence is needed to make out a claim of indirect race discrimination. The allegations against ACT Health are not misconduct, fraud or other serious charge. Rather, this matter concerns drafting of a policy that prevents a trained doctor obtaining an internship. Therefore the Tribunal should adopt a threshold below, or at least analogous with, that used in Kovac.
49. In Styles the Court confirmed that regardless of onus, the determination of reasonableness was an objective one.
‘The criterion is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.’
50. The Explanatory Statement to the original 1991 Discrimination Bill noted that s 8(3) listed ‘some of the matters which should be taken into account’.
51. Further, while it may not be settled, at common law it is said that the term ‘includes’ is used when a non-exhaustive list is intended, to add to the ordinary meaning of the word. This is reflected in the decision of the High Court in Waters, considering the Victorian Equal Opportunity Act. Mason CJ and Gaudron J held:
“Reasonable in that paragraph must mean reasonable in all the circumstances.”
52. Therefore, using the ordinary step of statutory interpretation, the list in s.8(3) is not intended to be exhaustive.
53. This Submission focuses on relevant factors drawn from human rights jurisprudence and guidance material. There are likely other factors that the Tribunal might also consider.