Australian Education Union v The Human Rights & Equal Opportunity Commission & Anor [1997] FCA 1288

Australian Education Union v The Human Rights & Equal Opportunity Commission & Anor [1997] FCA 1288

The provision of superannuation benefits under the relevant Tasmanian acts and regulations constitutes the provision of 'services' for the purposes of s 22 of the Sex Discrimination Act, which binds the Crown in right of a State. The Inquiry Commissioner erred in law by concluding otherwise, and there is no basis to exclude such conduct from s 22 merely because there may be overlap with s 14, which does not bind States.

Parties
Applicant: Australian Education Union; First Respondent: Human Rights & Equal Opportunity Commission; Second Respondent: State of Tasmania
Jurisdiction
Australia
Judgment Date
25 November 1997
Procedural Posture
Judicial Review Application / Judgment
Outcome
Application allowed; decision of Inquiry Commissioner set aside; matter remitted for determination in accordance with law; State of Tasmania ordered to pay costs.
Legal Topics
State Crown Immunity, Sex Discrimination, Provision of Services, Superannuation Schemes, Interpretation of Sex Discrimination Act
Discrimination Law Administrative Law Employment Law Superannuation Law State Crown Immunity Sex Discrimination Provision of Services Superannuation Schemes +1 more

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Parties

Australian Education Union

Applicant

Human Rights & Equal Opportunity Commission

First Respondent

State of Tasmania

Second Respondent

Procedural Posture

Judicial Review Application / Judgment

Legal Issues

  1. 1 Whether provision of superannuation benefits by a State constitutes the provision of services under s 22 of the Sex Discrimination Act 1984 (Cth)
  2. 2 Whether discrimination in the provision of such superannuation benefits is prohibited under s 22 when s 14 immunity operates for States
  3. 3 Interpretation of 'services' within the Act and scope of Crown immunity in relation to employment discrimination

Ratio Decidendi

The provision of superannuation benefits under the relevant Tasmanian acts and regulations constitutes the provision of 'services' for the purposes of s 22 of the Sex Discrimination Act, which binds the Crown in right of a State. The Inquiry Commissioner erred in law by concluding otherwise, and there is no basis to exclude such conduct from s 22 merely because there may be overlap with s 14, which does not bind States.

Court Disposition

Application allowed; decision of Inquiry Commissioner set aside; matter remitted for determination in accordance with law; State of Tasmania ordered to pay costs.

Orders

  • The decision of the Human Rights and Equal Opportunity Commission Inquiry Commissioner made on 26 June 1997 is set aside.
  • The applicant's complaint is remitted to the first respondent to be determined in accordance with law.