HIGH COURT OF AUSTRALIA THE STATE OF NEW SOUTH WALES APPELLANT AND JOYCE AMERY AND ORS RESPONDENTS State of New South Wales v Amery [2006] HCA 14 13 April 2006 ORDER 1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 10 December 2004 and, in their place, order that the appeal to that Court be dismissed with costs. On appeal from the Supreme Court of New South Wales Representation: D F Jackson QC with T J Anderson for the appellant (instructed by Crown Solicitor for New South Wales) C J Birch SC with P F Lowson for the respondents (instructed by MacMahon Associates) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS State of New South Wales v Amery Industrial law (NSW) – Discrimination – Respondents were female teachers employed on a temporary basis as "supply casuals" by the New South Wales Department of Education and Training – Different salary scales applicable to permanent teachers and casual teachers – Permanent teachers entitled to progress along a common incremental salary scale consisting of 13 levels of annual salary – Casual teachers remunerated on a salary scale consisting of five levels, the highest of which equated to level eight of the salary scale of permanent teachers – All but two of the respondents had ceased teaching on a permanent basis either in order to rear children or for other family reasons – Evidence suggested that the proportion of permanent teachers employed in NSW government schools who are men is substantially higher than the proportion of casual teachers who are men – Permanent teachers subject to statutory requirements that did not apply to casual teachers – Whether subjection of casual teachers to different salary scale constituted discrimination on the grounds of sex in the terms or conditions of employment within ss 24(1)(b) and 25(2)(a) of the Anti-Discrimination Act 1977 (NSW) – Whether respondents were required to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the respondents do not or are not able to comply – Whether requirement that respondents obtain appointment as permanent full-time or part-time teachers was a "requirement or condition" within the meaning of s 24(1)(b) – Whether any such requirement was reasonable. Words and phrases – "requirement or condition", "employment", "terms or conditions of employment". Administrative Decisions Tribunal Act 1997 (NSW), ss 113, 119. Anti-Discrimination Act 1977 (NSW), ss 24, 25, 54. Industrial Relations Act 1996 (NSW). Supreme Court Act 1970 (NSW), s 48. Teaching Services Act 1980 (NSW), ss 4, 38, 44, 47, 50, 71, 73, 75, 76. GLEESON CJ. I would allow this appeal, substantially for the reasons given by Hodgson JA in his dissenting judgment in the Court of Appeal1. The relevant statutory provisions and facts are set out in the reasons for judgment of Gummow, Hayne and Crennan JJ ("the joint reasons"). The issues argued in this Court were narrower than those debated in the Administrative Decisions Tribunal of New South Wales ("the Tribunal"), the Appeal Panel of the Tribunal ("the Appeal Panel") and the Court of Appeal. For present purposes, it is necessary and sufficient to consider two related issues. The first is whether the New South Wales Department of Education and Training ("the Department"), the alleged perpetrator of indirect discrimination on the ground of sex, required the respondents to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex comply or are able to comply, and with which the respondents do not or are not able to comply ("the requirement issue"). The second is whether it was shown that such requirement was not reasonable having regard to the circumstances of the case ("the reasonableness issue"). Both issues are raised by the terms of s 24(1)(b) of the Anti-Discrimination Act 1977 (NSW) ("the Act"). Although I accept the respondents' case on the requirement issue, a resolution of the reasonableness issue requires close attention to the nature of the relevant requirement. The requirement issue The Tribunal, the Appeal Panel, and all members of the Court of Appeal decided this issue in favour of the respondents. Nevertheless, it is evident that there was some difficulty in relating the complaint of the respondents to the terms of the Act. It is easy enough to state, in broad terms, the grievance expressed by the respondents. It is also of some importance to note what they were not complaining about. The Department functioned, and the respondents were employed, within a scheme of statutory regulation found in the Teaching Services Act 1980 (NSW)2 ("the Teaching Services Act"). That scheme was outside the control of any of the parties to these proceedings, and constituted one of the "circumstances of the 1 Amery v State of New South Wales (Director-General NSW Department of Education and Training) (2004) EOC ¶93-352 at 73,476-73,483. 2 This Act is now known as the Teaching Service Act 1980 (NSW), see Teaching Services Amendment Act 2004 (NSW), Sched 1(2). case" required by s 24(1)(b) to be considered. As explained in the joint reasons, under the statutory scheme, the Education Teaching Service is divided into "officers" and "temporary employees". The Director-General of Education is empowered to appoint appropriately qualified people to permanent positions as teachers in public schools. Under the Teaching Services Act, one of the incidents of permanent appointment is an amenability to direction by the Director-General to transfer from one teaching position to another (see ss 71 and 75 of the Teaching Services Act). Especially in relation to its geographical implications, this form of amenability to direction has important personal consequences for teachers. The evidence showed that the issue of teacher transfers is, so far as possible, dealt with consensually, and with regard to individual preferences and needs. Even so, behind the consensual arrangements there is a statutory power, which cannot be ignored by the parties to the arrangements. In fact, it is the inability of the respondents fully to submit themselves to a commitment to deployability that is at the heart of their claim of discrimination. Temporary employees, or casuals, are people who are not in permanent positions. In significant respects, the incidents of their employment differ from those which apply to permanent teachers. No doubt, the advantages and disadvantages of those incidents of employment vary in their effect on individuals, depending upon the personal circumstances, needs or preferences of the individual. From the point of view of the Department, managing a large, State-wide, teaching service, the differences are of importance. The complaint of the respondents has never been a complaint of unfair discrimination in the making of appointments to permanent positions. They do not complain of any requirement or condition that has to be met in order to qualify for permanent appointment. They do not complain of the manner in which permanent appointments are made. The Appeal Panel gave the following summary of the evidence with respect to the process by which teachers come to be employed with the New South Wales teaching service, whether as casuals or as permanent officers: "Whilst ss 47 and 50 of the [Teaching Services Act] respectively invests the Director General of Education with the power to appoint permanent and temporary staff, all applicants for appointment who have the appropriate qualifications in fact pass through the same 'gate'. The date of an application for employment is designated as the 'priority date'; in that application, the applicant can specify whether permanent or part time or casual employment is required, and can specify broad or narrow geographical areas, qualifications and interests in terms of subjects. The approval to teach is generally granted as approval to teach casually, it being unlikely that a permanent position meeting all of the applicant's criteria, and in respect of which the applicant has priority, is immediately available. When a vacancy in a permanent position arises, applications for permanency are ranked according to their priority date and the criteria nominated by the applicant. If that position is offered and declined, the priority date for that applicant becomes the date of declination. Thus, permanency becomes a function of the availability of a permanent position, the assigned priority date and the criteria stipulated by the applicant." Most of the respondents had applied for appointments as permanent teachers. They had placed geographical limitations on the teaching jobs they were prepared to accept. Their decisions in that regard were influenced by family responsibilities. The impact of those family responsibilities was central to a consideration of the comparative positions of men and women; but that comparison is not in dispute in this appeal. The respondents were not asserting that they had been discriminated against because their applications for permanency had been refused. It may be that the way in which the respondents put their claim of discrimination was constrained by the distinction drawn by statute between permanent officers and casual teachers, and by the statutory incidents of that difference in status. However that may be, it is important to note what the respondents were not asserting. The essence of the complaint of the respondents, and the basis of the damages awarded to them by the Tribunal, related to the rates of pay applicable to permanent officers and casual teachers respectively. In this respect, the respondents drew a distinction between "supply casuals" (such as the respondents) who, they said, for all practical purposes undertook the same teaching responsibilities as permanent teachers, and casuals who worked on a part-time, short-term basis. We are concerned only with the former. The Department pays teachers in accordance with rates and scales prescribed by the industrial agreements or awards operating from time to time. At the times relevant to this case, the rates and scales were set by the Teachers and Related Employees Enterprise Agreement made under the Industrial Relations Act 1991 (NSW) and, later, the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award made under the Industrial Relations Act 1996 (NSW). Permanent teachers are paid according to a scale with 13 incremental components. A permanent teacher advances to the next increment every 12 months, until reaching the thirteenth increment. Casual teachers are paid according to a scale limited in its incremental increases to five, the highest increment of which is equivalent to the eighth increment on the permanent scale. As there is no further increment, casual teachers working after they have reached that level are paid less than permanent teachers with equivalent teaching experience. That is the nub of the complaint. The respondents do not complain of the fact that they were not appointed as permanent teachers; the limitations they placed upon their geographical availability brought that about. Nor do they make a wider criticism of the system for distinguishing between permanents and casuals, or of the relationship of that distinction to geographical availability. That system is based largely on statute. They say that the work value of supply casuals is no less than that of permanent officers. Supply casuals, of course, are both male and female; but the proportion of male teachers who are permanents is higher than the proportion of female teachers who are permanents. That is because family commitments tend to make some female teachers less mobile. In the Tribunal (which found in favour of the respondents), and the Appeal Panel (which found in favour of the Department), much attention was devoted to the background of the agreement and award, which were the outcome of a decision of the New South Wales Industrial Relations Commission. It was pointed out by the respondents that, in consequence of s 54 of the Act, it is no answer to what would otherwise be a case of unlawful discrimination to say that the conduct of the perpetrator is necessary to comply with the requirement of an award. Even so, the existence of an industrial agreement or an award may be a relevant circumstance in determining the issue of reasonableness. Part 6 of the Act contains a number of exceptions to the Act. Sections 55, 56, 57(2) and 59 provide that "[n]othing in [the] Act affects" certain activities or organisations. For example, nothing in the Act affects the provision of benefits by a building society (s 57(1)(d)). There are a number of such general exceptions. Section 54 provides that nothing in the Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with an order of any court (s 54(1)(d)). Before 1994 "order of any court" included "an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment". Following amendment in 1994, the expression "order of any court" no longer includes such an order or award. It is, therefore, no longer an answer to what would otherwise be a contravention of the Act to say that the relevant conduct was necessary in order to comply with a requirement of an industrial award. In this case, as will appear, the conduct of the Department the subject of the respondents' complaint was never necessary in order to comply with a requirement of an award. However, the reasonableness of the Department's conduct is to be considered having regard to the circumstances of the case. As a matter of construction of the Act, s 54(1)(d), after the 1994 amendment, did not require that an industrial award be disregarded in identifying the circumstances of a given case. Where, as here, the complaint is that the Department should have made over-award payments to some teachers, the wider industrial significance of such a course of action may be a material matter. The Department cannot answer the respondents' case simply by pointing to an award and saying that it is acting in accordance with the award. At the same time, if the respondents' case is that the Department should be making over-award payments to some teachers, the award system, and the award itself, may bear upon the reasonableness of the Department's conduct. Section 54(1)(d) does not require that the award be ignored; and the structure of the award is central to the respondents' case. This is a matter to which it will be necessary to return. It is unnecessary to distinguish between the agreement and the award, and, for convenience, further reference will be to the award. The Tribunal summarised the case for the respondents as follows: "It is said that by reason of the policy and practice of the Department to restrict the casual pay scales to level 8 of the permanent scale, they are underpaid having regard to the duties which they perform and the seniority they have established as employees. It is further contended that the policy is discriminatory because it operates harshly in the case of women teachers because the [respondents], prior to engaging in casual employment, were employed as permanent staff at the higher levels of remuneration and resigned in response to family responsibilities, and have effectively been precluded from achieving permanent status again because of the limitations on travel and career that those family responsibilities have entailed. It is said that this policy, found in the conditions of the enterprise agreement and the award, is discriminatory and unlawful in that it has the effect of discriminating against the [respondents] on the ground of their sex. In this regard it is put that as a proportion of casual teachers affected by the policy, women significantly outweigh men." While the Department has at all stages sought to justify its conduct as reasonable, (and succeeded in doing so in the view of the Appeal Panel and Hodgson JA in the Court of Appeal), it is necessary to be clear about what it is that the Department needs to justify. It does not need to justify the Act, with its distinction between permanents and casuals, or the differing statutory incidents attaching to the status of permanent or casual, or, in particular, the amenability of permanent officers to relocation. That is the work of Parliament, not the Department. Nor does it need to justify the award, which is the work of the Industrial Relations Commission and, no doubt, the outcome of industrial interaction involving different interest groups within the teaching service. (The Teachers Federation has taken no part in these proceedings at any stage.) If its own conduct is otherwise within the Act, it needs to justify that conduct as reasonable (leaving aside questions of onus). But what, exactly, is the conduct it needs to justify? That turns upon the identification of the requirement of the respondents "to comply with a requirement or condition" within s 24(1)(b) of the Act. It is the requirement which is subject to the test of reasonableness. What is the requirement? "The Tribunal held that the award that governs teacher salaries contains a requirement or condition 'that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status'. This is not correct because the award does not contain such a condition. Rather, it is the Department's practice of not making over-award payments that imposes the requirement." (emphasis in original) The "requirement" was, at all levels of the litigation, said to be "the requirement to have permanent status". The requirement to have permanent status was said to be a condition of access to the higher level of salary scales. However, if it is necessary to identify what the Department does that imposes that requirement (that is to say, the conduct of which the Department, as opposed to Parliament, or the Industrial Relations Commission, is the perpetrator), it must be, as Beazley JA said, that the Department adheres to a policy and practice of paying teachers in accordance with the award. The Department has the legal capacity to make over-award payments if it wants to. It could change its policy so as to pay supply casuals whose teaching has, in the sense considered by the Tribunal, the same work value as that of permanent teachers, above the award. It is difficult to imagine that if, in practice, it did so, it could restrict the over-award payments to female supply casuals, but that is another question. The Department could, if it wished, make over-award payments. It is in that sense that, as was held in the Tribunal, the Appeal Panel, and the Court of Appeal, it requires teachers to comply with a condition of having permanent status (with all the statutory incidents of that status, including deployability) in order to have access to the higher salary levels from which casual teachers are excluded. It is to the requirement, so understood, that the test of reasonableness is to be applied. It is not "the system" that is under scrutiny; it is the conduct of the Department within the system. No doubt, from the personal viewpoint of the respondents, they are employed by the Government. They may not distinguish between the role of the New South Wales Parliament in legislating about the teaching service and the role of the Department in implementing the legislation. The distinction, however, is legally significant. It is the Department that is the alleged perpetrator of discrimination, and it is the conduct of the Department that is in question. The issue of reasonableness I agree with the conclusion of Hodgson JA, that the Department's practice of not making over-award payments to supply casuals has not been shown to be unreasonable. The Department has the responsibility of managing a teaching service which is large in numbers and extensive in geographical scope. Issues of deployability, and deployment, are of major practical importance and, no doubt, of industrial sensitivity. Such issues are central to the difference between permanent and casual status. The statutory amenability of permanent teachers to re-deployment is, in economic and managerial terms, a matter of value to the Department. No doubt, at a particular school, if a teacher in one classroom is a permanent officer and a teacher in an adjoining classroom is a supply casual teacher, the quality and quantity of their teaching output may be identical. However, leaving pay to one side, the incidents of their employment are significantly different, and it does not follow that it is unreasonable to pay them differently. Beazley JA said that the Tribunal "found that the transfer requirements placed upon permanent teachers were such that they did not assist in determining the work value issue". Yet, at all stages of the proceedings, the Department has questioned the appropriateness of a narrow identification of the work value issue. If the issue is whether the teaching work of a history teacher who is a supply casual has the same value of that of a history teacher who is a permanent officer, then one answer may follow. However, if the question is whether, having regard to their respective conditions of employment, it is reasonable to pay one less than the other, a different answer may follow. Furthermore, from the point of view of the Department, the question of making over-award payments to some teachers would have been a matter of considerable managerial, and industrial, significance. Issues of relativity are notoriously sensitive in any workplace. As Hodgson JA pointed out, it is hardly a practical possibility that the Department should make over-award payments only to women, or to teachers whose family commitments make it difficult for them to submit to the full conditions of permanent appointment. The first course would discriminate against men. The second course would involve setting up criteria that would be difficult to formulate, and to apply in practice. If the Department adopted a practice of making over-award payments to some teachers, how could it, as a matter of industrial reality, limit such payments to one particular class of teacher (supply casuals)? There may be classes of permanent teachers, or individual permanent teachers, who also could make out a case for special treatment. As has been noted, compliance with a requirement of an award is not of itself an excuse for conduct that is otherwise unlawful (s 54). Nevertheless, in deciding whether conduct is unlawful, and for that purpose asking in accordance with s 24(1)(b), whether conduct the circumstances of the case, the industrial context in which the conduct occurs, including the provisions of an award, may be a material circumstance. is reasonable having regard Hodgson JA said: "[The Tribunal] did not address the very existence of the enterprise agreement and award as a factor relevant to reasonableness, in that what had to be shown was that it was not reasonable for the Department [not] to make over-award payments to supply casual teachers. For reasons given above, in my opinion what then would have to be shown to be not reasonable was failing to make over-award payments available to all supply casual teachers with commitments to children." to women or teachers, not just I agree, but would go further and say that what would have to be shown to be not reasonable was failure to make over-award payments to any teacher, or group of teachers. The respondents appear to accept that they could not seriously suggest that over-award payments should be made only to female supply casual teachers, much less to a certain group of female supply casual teachers. Once over-award payments are on the agenda, it would be difficult to justify restricting them to any particular class of teacher. It is to be emphasised that the question is not whether the whole system of dividing teachers into permanent and casual teachers, or the requirement of deployability, is reasonable. That system is set up by an Act of Parliament. The question is whether the conduct of the Department in not making over-award payments was shown not to be reasonable. The answer to that question is no. Conclusion The appeal should be allowed. I agree with the consequential orders proposed in the joint reasons. Crennan GUMMOW, HAYNE AND CRENNAN JJ. This appeal by the State of New South Wales against a decision of the New South Wales Court of Appeal (Beazley JA, Cripps AJA; Hodgson JA dissenting)3 concerns the application of certain provisions in the Anti-Discrimination Act 1977 (NSW) ("the AD Act") to the practices adopted by the New South Wales Department of Education and Training ("the Department") in setting the pay scales of the State's permanent and casual public school teachers4. In particular, the respondents, 13 female teachers who were or have been employed on a casual basis by the Department in the period since November 1995, successfully contended in the Court of Appeal that the pay differentials between casual and permanent teachers have the effect of discriminating against them, even if indirectly, on the ground of sex, thus attracting, among other things, the monetary remedies provided for in the AD Act5. Resolution of the controversy requires close attention to three New South Wales statutes and the regimes established under them. The statutes are the AD Act, the Teaching Services Act 1980 (NSW) ("the Teaching Services Act")6 and the Industrial Relations Act 1996 (NSW) ("the IR Act"). In particular, close attention is required to the interaction of those statutes and the regimes they establish. The controversy is not to be resolved by attempting to discern some trend in three or four decisions the Court has made over the last decade in discrimination matters and then seeking to arrest that trend because in those other matters the parties who complained of discrimination did not succeed. Rather, as 3 Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] EOC ¶93-352. 4 Section 5 of the AD Act provides that "[t]his Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities". Section 5(1) of the Crown Proceedings Act 1988 (NSW) provides for the bringing of civil proceedings against the Crown under the title "State of New South Wales". 5 Section 113(1)(b)(i) provides that, after holding an inquiry into a complaint of discrimination, the Equal Opportunity Tribunal may "order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct". 6 The short title of this statute was changed to the Teaching Service Act 1980 (NSW) by the Teaching Services Amendment Act 2004 (NSW), Sched 1, Item 2. Crennan the Court has repeatedly emphasised7, it is necessary to look to the language of the relevant statute, or, in this case, statutes. The respondents were successful in the Equal Opportunity Division of the Administrative Decisions Tribunal of New South Wales ("the Tribunal") in establishing their respective claims for damages8. The Tribunal's decision was thereafter reversed9 by an Appeal Panel of the Tribunal ("the Appeal Panel") but the respondents succeeded in the Court of Appeal. Judge Latham presided in the proceeding before the Appeal Panel. Section 119 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") provided for a proceeding in the Supreme Court, identified as an "appeal ... on a question of law". Neither the Appeal Panel nor any member thereof was to be made a party to that proceeding. By force of the Supreme Court Act 1970 (NSW)10 the proceeding was assigned to the Court of Appeal. The appeal by the State to this Court should be allowed and consequential orders made. To explain why this should be the outcome, it is necessary to begin with a consideration of the regime established under the Teaching Services Act and by an award under the IR Act for permanent and non-permanent teachers. 7 See, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ, 89 [46] per Kirby J; Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [11] per Gleeson CJ, Gummow, Hayne and Callinan JJ, 545 [63] per Kirby J; Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [11]-[15] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, 111-112 [249] per Kirby J; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 at 6-7 [7]-[9] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 79 ALJR 1850 at 1856 [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 1877 [167]-[168] per Kirby J; 221 ALR 448 at 455, 484-485; Weiss v The Queen (2005) 80 ALJR 444 at 452 [31]; 223 ALR 662 at 671. 8 Amery v The State of New South Wales [2001] EOC ¶93-130. 9 The State of New South Wales v Amery (2003) 129 IR 300. 10 s 48(1)(a)(vii); s 48(2)(f). Crennan Permanent and non-permanent teachers The Education Teaching Service consists of all persons employed under Pt 4 Div 2 (ss 44-51) of the Teaching Services Act (s 44). However, there is a critical distinction drawn between "officers" and "temporary employees". Section 4 defines the term "officer" to mean "in relation to the Education Teaching Service, a person employed in that service, other than a temporary employee". The phrase "temporary employee" is in turn relevantly defined to mean "in relation to the Education Teaching Service a person employed under section 50". Section 50(1) of the Teaching Services Act provides that: "[t]he Director-General of Education may, if of the opinion that it is necessary to do so, appoint temporarily, on a full-time, casual or part-time basis, to any position to which he or she is entitled to make an appointment under section 47 a person who, in the opinion of the Director-General, has the appropriate qualifications". Section 47(1)(a) confers upon the Director-General of Education ("the Director-General") the power to appoint to permanent positions within the Education Teaching Service "persons who, in his or her opinion, have the appropriate qualifications to be employed as teachers in public schools in those permanent positions". Reference also should be made, for the purposes of what follows, to s 50(5) of the Teaching Services Act. That sub-section states: "A person appointed under sub-section (1), (2) or (3): shall not be employed for a period exceeding 12 months from the date of the appointment but the employment may be extended from time to time for a further period not exceeding 12 months on each occasion if [the Director-General] certifies that the extension is necessary in the public interest, and (b) may be dismissed at any time." The provisions outlined above thus show that in the Education Teaching Service the legislation establishes a distinction between teaching staff holding permanent positions and non-permanent teaching staff. It will be necessary later in these reasons to refer in some detail to the differences in the rights and obligations that attach to each category of teaching staff and to consider their significance in light of the provisions of the AD Act. In her reasons (with which Cripps AJA agreed), Beazley JA adverted to a further distinction. This was drawn within the category of casual teachers Crennan between short-term relief casuals and supply casuals. The distinction was expressed by her Honour as follows11: "Short-term relief casuals are employed to fill short-term vacancies, generally of less than 10 days duration and which may be as short as an hour. Supply casuals encompass two groups. The first consists of supply casuals who are employed to teach in a full-time or part-time vacant position that is part of a school's formula-based teacher entitlement. The second group is made up of teachers appointed to fill the position of a permanent teacher who is on a period of extended leave eg sick leave, maternity leave or long service leave, or of a teacher who is on secondment. This group may also be appointed to fill a specially-funded or school-funded position. A supply casual may be appointed for a period in excess of a year." The respondents were all supply casuals. Something now should be said about the relevance of the distinction between permanent and non-permanent teachers to the discharge by the Director- General of one of the key functions conferred upon that officer by the Teaching Services Act, namely, to "determine promotions and transfers of officers and transfers of temporary employees" (s 38(1)(h)). Section 71(1) of the Teaching Services Act empowers the Director-General to "direct the transfer of an officer from one position in the Teaching Service to another position in the Teaching Service equivalent in classification and salary to the firstmentioned position". Section 75 reinforces the power thus conferred by providing that: "[w]here an officer of a Teaching Service refuses to comply with a direction of the appropriate Director-General for the officer's removal from one position in the Teaching Service to another, the Director-General shall, unless satisfied that the officer had a valid and sufficient reason for so refusing, dismiss that officer from the Teaching Service". Relevantly for present purposes, no equivalent power is conferred upon the Director-General in respect of temporary employees. This circumstance finds some reflection in the manner in which permanent teachers are appointed. This was described by Beazley JA (accepting what had been explained by counsel for the State) in these terms12: 11 [2004] EOC ¶93-352 at 73,455. 12 [2004] EOC ¶93-352 at 73,455-73,456. Crennan "[I]n submitting an application, a teacher must specify (among other things) where the teacher is prepared to teach. A teacher need not, of course, specify any limitations. The teacher's name, together with the information required to be provided, is then placed on a computer- generated list. Teachers on the list may be appointed as soon as positions become vacant that correspond to their qualifications and any restrictions they may have placed on the subjects or schools/locations at which they are prepared to teach." Failing appointment to a permanent position within the geographical limits specified, a teacher may nonetheless be employed on a casual basis within those limits. All but two of the respondents had ceased teaching on a permanent basis in order either to rear children or for other family reasons. In each case, after attending to any such responsibilities, they reapplied to the Department for permanent positions, placing limitations on the areas in which they were prepared to work. Between January 1997 and March 1998, five of the respondents were appointed as permanent teachers. However, in the period from November 1995 until the time of their taking up those appointments, they had been, like the other respondents, employed on a casual basis. And, like the other respondents, their remuneration during that period was subject to the pay scale for casual teachers in New South Wales. The different pay scales In the period following December 1993, the terms and conditions under which teachers were employed by the Department and remunerated for their work were governed by the Teachers and Related Employees Enterprise Agreement ("the Enterprise Agreement"), made pursuant to the Industrial Relations Act 1991 (NSW). The Enterprise Agreement was subsequently replaced by the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award ("the Award"). This commenced on 25 September 1996 but was expressed to apply from 27 August that year. The Award was made pursuant to the IR Act which in 1996 replaced the 1991 statute. Both the Enterprise Agreement and the Award preserved, and indeed were premised upon, the distinction between permanent and non-permanent teachers established by the Teaching Services Act. Schedule 1 of Pt B of the Award provided in a "common incremental salary scale" for 13 levels of annual salary payable to a permanent teacher. Pursuant to cl 7 of the Award, a permanent teacher was entitled to progress along this scale after each 12 months of service by "demonstrating ... continuing efficiency in teaching practice, satisfactory performance and professional growth". Upon reaching the thirteenth and highest level of pay, a permanent Crennan teacher might attain a higher annual salary only by appointment to the position of Deputy Principal or Principal. These salary arrangements may be contrasted with the rates of pay available to casual teachers, as provided for in cl 12.1 and Sched 6 of Pt B of the Award. In accordance with Sched 6, casual teachers were remunerated on the basis of a daily rate of pay, being a proportionate share of the annual salaries set down in the common incremental salary scale for permanent teachers. Moreover, unlike that scale, the casual pay scale had only five levels. The highest daily rate equated to a proportionate share of the salary payable to a permanent teacher on level eight of the 13-step common incremental salary scale. Clause 3 of Sched 7 of Pt B of the Award, which contained the conditions of employment for casual teachers, provided that a casual teacher was entitled to progress along the pay scale set out in Sched 6 on completing 203 days of casual teaching service. As was observed in the course of oral argument in this Court, 203 days amount, on the basis of a five-day week, to a little over 40 weeks, which length of time corresponds approximately to the length of a full school year. The pay differentials thus set between permanent and casual teachers had their genesis in the decision of Bauer J in the Industrial Commission of New South Wales in In re Crown Teachers (Casual) Award13. His Honour had held that the work performed by casual teachers was not of equal value to that of permanent teachers14, though it was said that "the work of [casual] teachers who work a large number of days in the year is more valuable and equates more to the work of permanent teachers than those who work fewer days"15. In 1992, the NSW Teachers' Federation ("the Federation") lodged an application for an award with the then Industrial Relations Commission of New South Wales ("the IRC"). That application sought, in the words of the Tribunal, "to break the nexus that had been established between the pay rates of permanent and casual teachers"16. However, the Federation subsequently abandoned this application, and entered instead into the Enterprise Agreement. The Federation has not participated in the present litigation. The Tribunal said in its reasons17: 13 [1983] AR 672; affd Re Crown Teachers (Casual) Award (1984) 11 IR 196. 14 [1983] AR 672 at 711. 15 [1983] AR 672 at 712. 16 [2001] EOC ¶93-130 at 75,286. 17 [2001] EOC ¶93-130 at 75,286. Crennan "The [Federation] did not apply to be a party to this inquiry to explain its apparent acceptance of the difference in treatment of the complainants or to maintain the contention which it supported in the various hearings before the Industrial Commission that supply casual teachers do not perform work of equal value to permanent staff." It should be noted that, under s 406(1) of the IR Act, the conditions of employment set by an industrial instrument such as an award are the minimum entitlements of employees. Some reference should also be made to s 54(1) of the AD Act. This provision was amended by the Anti-Discrimination (Amendment) Act 1994 (NSW)18. It presently, and significantly, provides as follows: "Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment" (emphasis added)19. The nature of the respondents' claims Part 3 of the AD Act (ss 23-38) is headed "SEX DISCRIMINATION". Division 2 (ss 25-31) is concerned with discrimination in work, and Divs 3 and 4 deal respectively with discrimination in other areas and exceptions in those areas. Division 1 (ss 23-24) makes introductory and general provisions as to what constitutes discrimination on the ground of sex and, as the particular case requires, is to be read with the appropriate and specific provision in Div 2 or 18 Sched 4, cl 23. 19 The operation of s 54 is reinforced by s 169 of the IR Act, which provides, among other things, that the IRC must, in the exercise of its functions, take into account the principles contained in the AD Act and that an industrial instrument may be varied at any time by the IRC in order to remove any unlawful discrimination arising from the instrument. A new s 109 was also inserted into the AD Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW). That section now provides: "If the Tribunal makes an order that affects an industrial instrument within the meaning of [the IR Act], it must give notice in writing to the President of [the IRC] of the order as soon as practicable after the order is made." Crennan Div 3. Here the specific provision is s 25, dealing with discrimination against applicants and employees. So far as material, s 25 provides: It is unlawful for an employer to discriminate against a person on the ground of sex: in the terms on which the employer offers employment. It is unlawful for an employer to discriminate against an employee on the ground of sex: in the terms or conditions of employment which the employer affords the employee". By amended points of claims filed in the Equal Opportunity Division of the Tribunal on 15 October 1999, the respondents asserted that their subjection by the Department to the pay scale detailed above constituted discrimination on the ground of sex by virtue of ss 24(1)(b) and 25 of the AD Act. Section 24(1)(b) recognises and imposes a legislative prohibition on what is often termed "indirect discrimination"20. In Waters v Public Transport Corporation21, Mason CJ and Gaudron J explained that the notion signifies that: "some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind". In proscribing such conduct in the context of sex discrimination, s 24(1) relevantly provides: "A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved 20 See Purvis v New South Wales (2003) 217 CLR 92 at 156 [207]. 21 (1991) 173 CLR 349 at 357. Crennan person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply." The respondents emphasised in this Court that the gist of their complaint lay, not in any failure to obtain appointment to permanent positions in the Education Teaching Service, but rather in what was asserted to be a failure of their remuneration to reflect the value of the work which they had performed as casuals. This is a matter of some significance. The contention by which the provisions of the AD Act were said to have been enlivened in the respondents' circumstances proceeded from several premises. Those premises may be understood by reference to what was said by Bowen CJ and Gummow J in their joint judgment in Department of Foreign Affairs and Trade v Styles22 concerning s 5(2) of the Sex Discrimination Act 1984 (Cth). This was in terms similar to s 24(1)(b) of the AD Act. Their Honours said23: "Section 5(2) contains four elements. The first is that the alleged discriminator 'requires the aggrieved person to comply with a requirement or condition'. The second is that the requirement or condition be one 'with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply'. The third is that the requirement or condition be 'not reasonable having regard to the circumstances of the case'. The last is that the requirement or condition be one 'with which the aggrieved person does not or is not able to comply'." In this case, the respondents sought to establish the first of the elements required by s 24(1)(b) by identifying, as a condition of their being able to access levels of pay corresponding with levels nine through to 13 of the common 22 (1989) 23 FCR 251. 23 (1989) 23 FCR 251 at 257. Crennan incremental salary scale, a requirement that they obtain appointment as permanent full-time or part-time teachers. It was then said that "[t]he proportion of permanent teachers employed in NSW government schools who are men is substantially higher than the proportion of casual teachers employed in NSW government schools who are men". The reasonableness of the condition thus identified and sought to be characterised as favouring male teachers was attacked by the respondents, to establish the third element, on the grounds that: "wherever the complainants are teaching or were teaching as casual teachers pursuant to appointments for continuous periods at the one school in excess of 8 weeks they perform work involving equivalent duties and responsibilities to teachers teaching classes at the said schools pursuant to appointment as permanent full-time or part-time teachers". In other words, the value of the work undertaken by a casual teacher appointed to the one school for a period in excess of eight weeks was equivalent to that of the work performed by a permanent teacher. Finally, the respondents maintained that they could not comply with the requirement of permanence because appointments to permanent positions "are or were only available at schools distant from their place of residence or because [they] require or required the increased flexibility in the hours worked available to casual appointees". The litigation The proceedings before the Tribunal were heard in August 1999; the reasons for decision were given many months later, on 12 March 2001. As has already been indicated in these reasons, the propositions advanced by the respondents found favour in the Tribunal. Thereafter, orders dated 7 December 2001 were made by the Tribunal for the payment by the State of differing amounts of damages to the respondents and, in some cases, the State was ordered to adjust payments for further work by reference to what the relevant respondent would be paid if holding a permanent appointment. The State exercised its right, conferred by s 113(1) of the ADT Act24, to "appeal" from the decision of the Tribunal to the Appeal Panel. Section 113(2) 24 That provision states: "A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel." Crennan provides that an appeal may be made on any question of law and that such an appeal may, with leave from the Appeal Panel, extend to a review of the merits of the decision from which the appeal is brought. The Appeal Panel heard the matter over three days in February-May 2002. In its reasons delivered on 12 June 2003, the Appeal Panel rejected many of the submissions by the State, but nonetheless identified two errors of law in the decision of the Tribunal. One was that the Tribunal had shifted from the respondents (as complainants) to the State the onus of establishing the third element required by s 24(1)(b) of the AD Act, namely, the reasonableness or otherwise of the requirement or condition said to be discriminatory in effect. The other was a failure by the Tribunal to weigh the nature and extent of the discriminatory effect wrought by the requirement or condition specified in the respondents' amended points of claim against the reasons advanced in favour of that requirement or condition. Having identified these errors, the Appeal Panel proceeded to decide that the respondents had not discharged the onus of demonstrating that the requirement or condition of permanence was, in all the circumstances of the matter, unreasonable. The respondents then instituted the proceeding in the Court of Appeal under s 119 of the ADT Act, to which reference has been made above. By a notice of contention, the State sought to recontest the ground covered by submissions that it had advanced unsuccessfully before the Appeal Panel. The respondents' appeal was allowed and the contentions of the State rejected. In her reasons for judgment, Beazley JA commented as follows on the Tribunal's "The Tribunal held that the award that governs teacher salaries contains a requirement or condition 'that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status'. This is not correct because the award does not contain such a condition. Rather, it is the Department's practice of not making over-award payments that imposes the requirement. However, it is apparent that this is the basis upon which the case was understood and conducted by the parties. It also appears that this is the way that it was understood and dealt with by the Appeal Panel." A similar point was made by Hodgson JA in his dissenting judgment. His Honour's reasons referred to an onus "on the complainants to show that it was not 25 [2004] EOC ¶93-352 at 73,453. Crennan reasonable for the Department not to make over-award payments to supply casual teachers"26. By orders entered on 10 December 2004, the Court of Appeal restored the awards of damages made by the Tribunal and awarded, in addition, interest payable on those sums. The submissions by the State The issues that fall to be determined in this appeal are narrower than those considered in the Court of Appeal. In this Court, the State submitted, first, that the Department had not, in the terms of s 24(1)(b) (as "picked up" by s 25), "require[d]" of the respondents that they "comply with a requirement or condition" to obtain appointment to a permanent position within the Education Teaching Service with access to levels of pay corresponding with levels nine through to 13 of the common incremental salary scale. This was said to be so even if the focus of attention were the Department's practice of not making over-award payments to supply casual teachers. The State did not confine its argument to this ground. It further contended that, even if the above submission failed, the majority in the Court of Appeal had erred in not concluding that the requirement or condition, in all the circumstances, was reasonable. The State gave three reasons in support of its case on reasonableness. First, members of the permanent teaching staff in the Education Teaching Service were subject to statutory requirements that did not apply to casual teachers. Secondly, by extension of the first reason, it was relevant to the question of reasonableness that the respondents had placed geographical limitations on their acceptance of permanent teaching positions. Thirdly, the very existence of the Enterprise Agreement and the Award was similarly relevant for the purpose of determining reasonableness, a point which, in the State's submission, the Tribunal had failed to appreciate. Finally, the State submitted that the Court of Appeal should either have decided the matter for itself on the merits or remitted it to the Appeal Panel for that purpose. For the reasons that follow, the first of the submissions by the State which has been outlined above should be accepted. 26 [2004] EOC ¶93-352 at 73,482. Crennan "Requirement or condition" The origins of the phrase "requirement or condition" in s 24(1)(b) of the AD Act and in other legislation in this field are to be found in s 1(1)(b) of the Sex Discrimination Act 1975 (UK) ("the UK Act")27. The phrase is to be given a broad rather than a technical meaning, given the nature of the mischief, indirect discrimination, with which s 24(1)(b) is concerned. Section 1(1)(b) of the UK Act speaks in terms of the application of a requirement or condition, rather than, as does s 24(1)(b), of a requirement of compliance with a requirement or condition. The respondents took no point respecting the difference, submitting that an express demand was not required and that the perpetrator may require the aggrieved person to comply if that be the practical effect of the circumstances. However, it is not the mere existence of a requirement or condition to which Pt 3 Div 1 of the AD Act is directed. It is discrimination which may involve the imposition of a requirement or condition. The question that must be asked in applying ss 24(1)(b) and 25 is whether the perpetrator engaged in a proscribed form of discrimination, not "what was the requirement or condition in this case". "Terms or conditions of employment" It is convenient to commence consideration of the relationship between ss 24(1)(b) and 25 of the AD Act by focusing upon s 25(2)(a). That provision prohibits discrimination by an employer against an employee on the ground of sex "in the terms or conditions of employment" which the employer affords the employee. Accordingly, it is unlawful for an employer, within the terms or conditions of employment afforded an employee, to require of that employee compliance with a requirement or condition of the nature identified in s 24(1)(b). It may be thought that the words "terms or conditions of employment", as they appear in s 25(2)(a), set some outer limit upon the range of stipulations by employers which may constitute, for the purposes of that provision, when read with s 24(1)(b), a "requirement or condition". During oral argument, counsel for the respondents directed the attention of the Court to the decision upon the AD Act of Lee J in Allders International Pty Ltd v Anstee28. His Honour there said that the expression "terms or conditions of 27 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 195-197. 28 (1986) 5 NSWLR 47. Crennan employment which he affords him", which then appeared in s 25(2)(a) of the AD Act, was29: "not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be". The concept of indirect discrimination posited by provisions such as s 24(1)(b) was said in Styles30 to be "concerned not with form and intention, but with the impact or outcome of certain practices". Accordingly the earlier statement by Lee J may be accepted as correct. However, it is a matter of some importance that, in construing the text of s 25(2)(a), Lee J should have used the words "actual employment". This is because the term "employment" may, in certain situations, denote more than the mere engagement by one person of another in what is described as an employer-employee relationship. Often the notion of employment takes its content from the identification of the position to which a person has been appointed31. In short, the presence of the word "employment" in s 25(2)(a) prompts the question, "employment as what?" The scheme of the Teaching Services Act meant that the respondents were employed, not merely as teachers, but as casual teachers within the Education Teaching Service. There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher levels of salary, one must cease to be a casual teacher and obtain permanent appointment. In seeking to attack the statutory foundation upon which this last proposition is premised, counsel for the respondents submitted that "one must adopt a practical view of the job that [the respondents] have been hired to perform". On this basis, it was said that what one does, upon engagement as a member of the teaching staff in the Education Teaching Service, "is undertake the job of being a teacher", where one of the terms and conditions of such employment is that one will perform the job of being a teacher either as a permanent or as a casual. We turn now to consider this submission. 29 (1986) 5 NSWLR 47 at 55. 30 (1989) 23 FCR 251 at 258. 31 cf Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 284 [1], 305-306 [74]- Crennan Employment as "a teacher"? In determining whether it can be said that each respondent was appointed to the position of "teacher", where the terms and conditions of this employment included a stipulation that work be done either as a permanent or as a casual, one must direct attention, not merely to any equivalence in the value of the work done by permanent teachers and supply casuals. Attention must also be paid to the rights and obligations attaching to each category of teacher. There may be posited a situation in which a private employer appoints persons to either one of two categories of position, one attracting a higher salary than the other. Upon adopting a practical view of the rights and obligations attaching to, and the work performed by persons in, each category, it might be said that there is, in substance, only one form of employment for which an employee is engaged. However, that is not this case. Statute plays an important role here. The distinction between permanent members of the Education Teaching Service ("officers") and non-permanent teachers is required by the Teaching Services Act. As has already been indicated, the power of the Director-General to direct transfers of teaching staff, reinforced by a power of dismissal, is confined, in its reach, to "officers". The respondents contended that "[i]n a practical sense casual staff were in a not dissimilar position". If the Department no longer requires the services of a particular supply casual at a given school, it will not renew that teacher's appointment, but may instead offer a new position at a different school. In effect, this directs the transfer of what is termed in the Teaching Services Act a "temporary employee". However, as was submitted by counsel for the State in response, at the point when the offer of a position at a different school is made to a supply casual, the Department and the casual teacher in question would be engaged, in effect, in the process of bargaining. In contrast, an "officer" is obliged under the Teaching Services Act to comply with a direction to transfer or to show a valid and sufficient reason for refusing compliance. Section 73(1) of the Teaching Services Act is engaged where the Director- General is satisfied that an "officer" of the Education Teaching Service "is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer"; the Director-General is required either to assign the officer work of a class appropriate to the salary or to reduce the salary. The respondents contended that the supply casuals were subject to similar constraints as a result of the short-term nature of their tenure and the circumstance that they would not be employed if there was no appropriate work for them. However, it Crennan is one thing for the Department to allow a supply casual's tenure to lapse or to refuse to appoint a person to the position of a supply casual; it is another to assign different work to an officer or to reduce that officer's salary. Moreover, the differences in the rights and obligations of permanent and non-permanent teachers within the Education Teaching Service in New South Wales do not end there. Section 76(1) of the Teaching Services Act empowers the Director-General, in circumstances where an officer is an invalid or suffers physical or mental incapacity, either to cause that officer to be retired from the Education Teaching Service or, with his or her consent, to transfer that officer to another position within the Education Teaching Service. Section 79 extends only to officers an entitlement, upon accrual, to leave of absence. Further, an officer of the Education Teaching Service, but not "a temporary employee of the Education Teaching Service employed on a casual basis", is prohibited from engaging in various forms of commercial activity except with the written permission of the Director-General (s 89). With respect to s 89, the respondents submitted that the short-term nature of the appointments of casual supply teachers may result in their contracts not being renewed if they engaged in some inappropriate additional employment or business activity. However, even if this were so, officers would still be subject to a general prohibition on undertaking such additional employment or business activity, whereas, as a general proposition, temporary employees would be at liberty to attempt the proscribed forms of commercial activity as they please. The rights and obligations attaching to the two categories of teaching staff in the Education Teaching Service are so materially different that it would be an error to speak of the appointment of a person to "the position of teacher", where one of the terms and conditions of such appointment is that that person is required to undertake work either on a permanent or on a casual basis. Applying ss 24(1)(b) and 25(2)(a) of the AD Act to the circumstances of the respondents requires that consideration be given to the terms and conditions of their employment, not as teachers, but as casual teachers. Crennan Employment as casual teachers The immediate consequence of focusing upon the terms and conditions attendant upon the employment of the respondents as casual teachers is that the incongruity alluded to previously in these reasons becomes fatal to the respondents' case. It cannot be said to be a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to 13 of the common incremental salary scale, the employee must cease to be a casual teacher. Nor can it be said to be a requirement or condition, compliance with which is required in the terms on which one is offered employment as a casual teacher, that, in order to access those higher levels of pay, the employee must accept appointment as something other than a casual teacher. This last proposition is sufficient to deny any application to the situation of the respondents of s 25(1)(c), which proscribes discrimination on the ground of sex in the terms on which an employer offers another person employment. The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act. The pay scales set by the Award and the practice, adopted by the Department, of not extending to its supply casual teaching staff over-award payments were an incident of the management of that structure. Not every such incident may be described as being a requirement or condition, compliance with which is required either in the terms on which employment in the Education Teaching Service is offered or in the terms or conditions of employment afforded by the Department. For the reasons given above, the so-called requirement of permanence which the respondents sought to impugn was not such a requirement or condition within the meaning of the AD Act. The Tribunal's decision was thus infected by an error of law and should not have been reinstated to any degree by orders of the Court of Appeal. For that reason, the appeal should be allowed. Other issues Given what has been said above respecting the proper construction of ss 24(1)(b) and 25 of the AD Act, it is unnecessary to address the submissions advanced by the State on the issues of reasonableness and the denial by the Court of Appeal of the entitlement of the State to a merits review. In particular, it is unnecessary to answer any question that may arise from the operation of s 54 of Crennan the AD Act concerning the relationship between the provisions of the AD Act and the IR Act, pursuant to which the Award was made. That relationship is rendered all the more problematic in this case by the circumstance that the Award operates within the framework set by, and thus is premised upon, the differing statutory rights and obligations attaching to the two categories of teaching staff created by the Teaching Services Act. Orders The appeal should be allowed. The State has agreed to pay the respondents' costs of the appeal to this Court in any event and no costs order respecting the appeal is required. The orders of the Court of Appeal should be set aside, and in place thereof, the appeal to that Court from the Appeal Panel should be dismissed. The State seeks and should have its costs in the Court of Appeal. The State is content that the parties bear their own costs of the proceedings before the Tribunal and the Appeal Panel. No costs order was sought by the State before either of those bodies and none should now be made in that regard by this Court. Kirby KIRBY J. This case32 joins a series, unbroken in the past decade, in which this Court has decided appeals unfavourably to claimants for relief under anti- discrimination and equal opportunity legislation33. It was not always so. In the early days of State and federal anti- discrimination legislation, this Court, by its approach to questions of validity and application, upheld those laws and gave them a meaning that rendered them effective. So it was in Ansett Transport Industries (Operations) Pty Ltd v Wardley34, an unsuccessful challenge to the applicability of provisions of the Equal Opportunity Act 1977 (Vic) concerned with discrimination on the ground of sex and marital status. So it was in Australian Iron & Steel Pty Ltd v Banovic35, another case of discrimination on the ground of sex in the employment context. Similar too was the unanimous outcome in Waters v Public Transport Corporation36, a case concerning discrimination on the ground of physical disability or impairment. None of these cases was more or less arguable than those that have followed. Few cases that now reach this Court are unarguable37. The Court's successive conclusions in these cases reflected the beneficial interpretation of the laws in question, ensuring they would achieve their large social objectives. In Mabo v Queensland [No 2]38, the general approach which the Court took to discrimination (in that case on the ground of race) was stated clearly. The Court there acknowledged the need to ensure that the law "in 32 An appeal from a judgment of the Supreme Court of New South Wales (Court of Appeal): Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] ¶EOC 93-352. 33 The majority approach in this Court may be contrasted with the majority approach in the House of Lords in Percy v Church of Scotland Board of National Mission [2005] UKHL 73. 34 (1980) 142 CLR 237, Barwick CJ and Aickin J dissenting. 35 (1989) 168 CLR 165, Brennan and McHugh JJ dissenting. 36 (1991) 173 CLR 349. To these three cases might be added this Court's decisions concerning racial discrimination, including Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Gerhardy v Brown (1985) 159 CLR 70 and Mabo v Queensland [No 2] (1992) 175 CLR 1. 37 cf News Limited v South Sydney District Rugby League Football Club Limited (2003) 215 CLR 563 at 580 [42]. 38 (1992) 175 CLR 1, Dawson J dissenting. This case involved discrimination by the operation of earlier understandings of the common law. Kirby today's world" should "neither be nor be seen to be frozen in an age of ... discrimination"39. The wheel has turned40. In no decision of this Court in the past decade concerned with anti-discrimination laws, federal or State, has a party claiming relief on a ground of discrimination succeeded. If the decision in the courts below was unfavourable to the claimants, it was affirmed. If it was favourable, it was reversed. This is what occurred in IW v City of Perth41, a case concerning discrimination on the ground of physical impairment. So too in Qantas Airways Limited v Christie42, a case concerning age discrimination, in which a judgment of the Industrial Court of Australia was reversed to favour the defendant. A similar outcome was reached in X v The Commonwealth43, a case involving HIV disability. So too in Purvis v New South Wales44, a case involving physical and mental disability. In each of these cases, the Court produced a finding unfavourable to the complainant. The differences in the Court's present approach to anti-discrimination legislation may lie in considerations of approach. That possibility is lent further support by the outcome of the present appeal. Here, the claimants succeeded at first instance before the New South Wales Administrative Decisions Tribunal ("the Tribunal")45. They did so on the basis that they had demonstrated that they were subject to a form of indirect discrimination on the ground of their sex46. That decision was reversed by the 39 (1992) 175 CLR 1 at 41-42. 40 A similar change has occurred in the law of torts and elsewhere. See eg Neindorf v Junkovic (2005) 80 ALJR 341 at 346 [19]; 222 ALR 631 at 635-636; cf Luntz, "Editorial Comment: Round-up of cases in the High Court of Australia in 2003", (2004) 12 Torts Law Journal 1 at 1-2; Luntz, "Torts Turnaround Downunder", (2001) Oxford University Commonwealth Law Journal 95. 41 (1997) 191 CLR 1, Toohey J and myself dissenting. 42 (1998) 193 CLR 280, myself dissenting. 43 (1999) 200 CLR 177, McHugh J and myself dissenting. 44 (2003) 217 CLR 92, McHugh J and myself dissenting. 45 Amery v State of NSW [2001] EOC ¶93-130. 46 Contrary to the Anti-Discrimination Act 1977 (NSW) ("AD Act"), s 24(1), as amended by the Anti-Discrimination (Amendment) Act 1981 (NSW); and the Anti- Discrimination (Amendment) Act 1994 (NSW), s 3 and Sched 4, cl 8(a). Kirby Appeal Panel of the Tribunal47. However, the decision in favour of the claimants was restored by majority decision of the New South Wales Court of Appeal48. In this appeal, the State of New South Wales has not demonstrated that the Court of Appeal erred in the conclusion that it reached on the issues still outstanding49. Neither in the Court of Appeal's identification of the "requirement or condition" that gave effect to the indirect discrimination alleged, nor in its conclusion that such "requirement or condition" was not "reasonable", has error been shown. In consequence, in a strict appeal50, there is nothing to warrant this Court giving effect to a differing conclusion of its own. There being no other argument justifying a contrary outcome, the appeal should be dismissed. Only that order will uphold the purpose of the Parliament of New South Wales to terminate unreasonable indirect discrimination on the ground of sex51. The facts Protracted litigation: The New South Wales Department of Education and Training ("the Department") employs both permanent and casual teachers, remunerating them in accordance with salary scales. At the relevant time, the minimum salary was determined by an industrial award. The highest increment on the award salary scale at the time of the respondents' complaints was 13. However, the scale draws a distinction between permanent and casual teachers. Casual teachers are only entitled to a maximum equivalent to the scale's eighth increment. The respondents are all female casual teachers. Pursuant to the AD Act, s 24, they contend that they have been discriminated against on the ground of sex. They argue that, as casual teachers, they cannot access the higher 47 State of NSW v Amery (2003) 129 IR 300. 48 Amery v State of NSW (Director-General NSW Department of Education and Training) [2004] EOC ¶93-352; per Beazley JA, Cripps AJA concurring; Hodgson JA dissenting. 49 As to the necessity to show error in order to secure reversal, see Manley v Alexander (2005) 80 ALJR 413; 223 ALR 228; CSR Ltd v Della Maddalena (2006) 224 ALR 1. 50 The requirements attaching to a strict appeal were described by this Court in Mickelberg v The Queen (1989) 167 CLR 259 at 265-271, 274, 298-299; Eastman v The Queen (2000) 203 CLR 1 at 77 [234]-[236]. 51 See New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 February 1977 at 4430. Kirby increments on the salary scale, although they perform work of equal value to that of their permanent counterparts. The fact that these proceedings concern allegedly unlawful discrimination against Ms Joyce Amery and thirteen other casual teachers52, dating back to their complaint to the Anti-Discrimination Board of New South Wales in November 1995, speaks volumes about the hostile litigious environment in which claims of the present kind are typically litigated. Even if one takes the start of the proceedings as October 1997 (the date on which the points of claim were filed by the respondents in the Equal Opportunity Tribunal of New South Wales as then existing53), their duration, the multiplicity of the issues, the complexity of the points of law argued and the delays in decision-making, have all added to the burdens facing people like the respondents, seeking to vindicate rights afforded to them by law to obtain relief against indirect discrimination. When there is now added the ultimately unfavourable outcome in this Court, and the burden of costs that will follow (only partly mollified by the appellant's concession on the grant of special leave54), the respondents could be forgiven for doubting the utility of the remedies ostensibly afforded to them by the AD Act, and for wondering why they ever bothered to invoke its protection. Confining the issues: Thanks largely to the careful reasons of Beazley JA in the Court of Appeal55, and to somewhat belated discernment on the part of the appellant concerning the matters to be argued, many of the issues identified below have fallen away in this Court. Beazley JA listed eight issues56 and proceeded seriatim to decide them all. The appellant, representing the Department, raised a multitude of issues before the Tribunal and Appeal Panel, and pressed many of them by way of contention in the Court of Appeal. However, only three issues are still outstanding. This permits the cutting away of a large number of facts relevant to the now 52 The thirteenth, Ms Mary Strong, was a party to the original complaint and to the Equal Opportunity Tribunal proceedings, but not to the subsequent appeals. 53 Under the AD Act, s 69B (Pt 7A). In 1997 the Administrative Decisions Tribunal, established under the Administrative Decisions Tribunal Act 1997 (NSW) was vested with jurisdiction under the AD Act, pursuant to the Administrative Decisions Legislation Amendment Act 1997 (NSW). 54 Notice of Appeal, proposed order 3(c). 55 [2004] EOC ¶93-352. 56 [2004] EOC ¶93-352 at 73,454 [21]. Kirby abandoned issues. It allows this Court, in deciding the appeal, to confine its attention to those facts that are relevant to the remaining issues. For what follows, it is important to appreciate that, despite the multitude of arguments advanced by the appellant up to the Court of Appeal, the Judges of that Court were eventually unanimous in the disposition of all of the issues argued, save that Hodgson JA, in ultimate dissent, concluded that there were "arguable grounds" to justify the condition or requirement of the employment of the respondents as teachers, in respect of which the respondents were complaining57. On this basis alone, Hodgson JA concluded that it was "prima facie reasonable for the Department not to make over-award payments" to the respondents or persons in their class58. Upon an assumption that he was incorrect in this conclusion, and that the majority in the Court of Appeal were correct, Hodgson JA favoured a remitter to the Appeal Panel of what he regarded as an outstanding application for leave to appeal to that Panel on the evidentiary merits59. In every other respect, Hodgson JA agreed with the disposition by the majority of the Court of Appeal of all of the other points in the appeal, including (upon an assumption of their entitlement) the orders in favour of the individual respondents in respect of interests and costs as proposed by the majority of that Court60. It follows that, because of the high measure of agreement in the Court of Appeal, and the way in which the issues were argued in this Court, the statement of facts can be narrowed. Doing this will simplify the case of indirect discrimination on the ground of sex, of which the respondents complained and on which they ultimately succeeded below. A case of discrimination: Since the middle of the nineteenth century, the appointment of teachers in public schools in New South Wales has been regulated by statutes enacted first by the colonial Parliament and later by the State Parliament61. From the earliest years of the provision of free, secular and 57 [2004] EOC ¶93-352 at 73,482 [202]. 58 [2004] EOC ¶93-352 at 73,482 [202]. 59 [2004] EOC ¶93-352 at 73,482 [204]. 60 [2004] EOC ¶93-352 at 73,482 [204]. 61 Dating back to an Act to Incorporate the Board of Commissioners for National Education 1848 (NSW). That Act was followed by the Public Schools Act 1866 (NSW); Public Instruction Act of 1880 (NSW); Free Education Act 1906 (NSW); Public Education Act 1906 (NSW); and Public Instruction (Amendment) Act 1916 (NSW). Kirby compulsory education to children within the large geographic area of New South Wales, it was recognised that special arrangements were needed to provide for the education of pupils in remote districts, where it was "not practicable to collect a sufficient number of children to form a permanent school"62. Whatever questions arose earlier as to the employment status of teachers in New South Wales63, after the passage of the Teaching Services Act 1980 (NSW) ("TS Act")64, the appointment of teachers in public schools was regulated by statute in some detail. The TS Act envisaged that such teachers would either be appointed to a "permanent position"65 and thus be "officers"66 or (relevantly) as a "temporary employee" or casual teacher. The evidence before the Tribunal sustained two conclusions of a general character expressed by Beazley JA. First, that the generic category of "teachers" was divided into permanent and casual teachers, with casual teachers being, in turn, subdivided by the Department's internal structure between short-term ("relief") casuals and longer term ("supply") casuals67. The former subcategory of casual teachers was commonly employed "to fill short-term vacancies, generally of less than 10 days duration and which may be as short as an hour". The latter ("supply casuals"), the category relevant to the respondents to these proceedings, was further subdivided into two groups. One such group comprised "supply casuals", employed to teach in a full-time or part-time vacant position which is part of a school's formula-based teacher entitlement. The second sub- group comprised "relief" teachers appointed to fill the position of a permanent teacher who was on a period of extended leave, eg sick leave, maternity leave or long service leave, or of a teacher who had been placed on secondment. The respondents were all in the former sub-category. They were all "supply casuals". After describing these classifications, Beazley JA stated a conclusion concerning the particular value of casual teachers to the large and complex 62 Public Instruction Act of 1880, s 23 ("Itinerant teachers may be appointed"). 63 See eg Ramsay v Larsen (1964) 111 CLR 16 at 27-28, 36-37 and, following the passage of the TS Act, Director-General of Education v Suttling (1987) 162 CLR 64 Now Teaching Service Act 1980 (NSW); see Teaching Services Amendment Act 2004 (NSW), Sched 1(2). 65 TS Act, s 47 (as it then provided). 66 Defined in TS Act, s 4. 67 [2004] EOC ¶93-352 at 73,455 [26]. Kirby establishment of teaching personnel deployed by the Department in public schools throughout the State68: "The availability of casual teaching staff is important, and probably essential, to the conduct of the teaching service. It assists the Department to maintain both the continuity and flexibility of teaching services. Thus, by way of example, the Department can, by the use of casual teaching staff provide relief for permanent teachers from face to face teaching; to properly take account of fluctuations in enrolments; to provide teaching resources for specialised programmes and to deal with changing curriculum patterns, and, as indicated, facilitates the taking of various types of leave by permanent teachers." Most of the respondents had earlier been permanent teachers but had terminated that appointment "because of family responsibilities"69. This is a generic euphemism to describe the reality for most long-term female employees, certainly up to the time when the respondents made their claims. It indicates that (in the event of their having children of their own) the primary practical tasks of rearing the children would normally fall on the mother and thus (where applicable) on female teachers such as the respondents. Moreover, in the event of a reassignment of the place of employment of persons in a marital or de facto married relationship, the female party would, with very few exceptions, follow the employment requirements of the male party. During schooling of their own children, reassignment of the employment of the mother could cause significant disruption for children, including in their education. It was these and like reasons that caused most of the respondents to transfer to supply casual teaching, placing a limitation on the areas in which they were prepared to work70. Notwithstanding such limitations, all but two of the respondents had reapplied to the Department for permanent positions. However, mostly due to family reasons, they had placed a limitation on the geographical 68 [2004] EOC ¶93-352 at 73,455 [27]. 69 [2004] EOC ¶93-352 at 73,455 [28]; cf Smith and Riley, "Family-friendly Work Practices and The Law", (2004) 26 Sydney Law Review 395. 70 [2004] EOC ¶93-352 at 73,455 [28]. 71 [2004] EOC ¶93-352 at 73,455 [28]. There was one teacher, Ms Amery, who was a pastor for her religious denomination. She had restricted her geographical area of service to the Sydney suburb of Kogarah in order to allow her to attend to her pastoral duties. Kirby Much of the original contest before the Tribunal had focused on whether the respondents, as "supply casual" teachers in New South Wales public schools, were drawn from the same class of persons, having the same general qualifications as permanent teachers and performing essentially the same duties as their permanent counterparts. The Tribunal concluded those issues in the respondents' favour72. They are no longer in contention before this Court. To differentiate between the typical category of long-term supply casual teachers (to which they all belonged) and short-term relief or otherwise temporary teachers, the respondents, before the Tribunal, by reference to the evidence, proposed the adoption of an eight week threshold. They submitted that adoption of that criterion was sustained by the evidence and would differentiate appropriately the particular sub-class within which they fell. The Tribunal accepted that threshold. It said73: "The appropriate comparison is between permanent teachers and casuals who have reached an equivalent stage and value of work performance. In this case, it is contended by the complainants that an appropriate approach is to adopt a period of eight weeks as the threshold for performance of work of equal value by casual teachers. On the evidence we agree with this contention. That is, it is clear that after working such a period continuously, there is little or no discernible difference in the tasks or responsibilities of teachers in the Service. Indeed, there is room for argument in some cases that work of equivalent value is performed prior to that period, particularly by teachers who are engaged to fill the roles of permanent staff for extended periods, a fact known on engagement of casual staff." The Tribunal thus concluded that the long-term casual teacher, working in the same school as a permanent teacher was, by the very nature of the duties performed, obliged to carry out essentially the same work, both in the classroom and beyond. Relevantly, the work was that of a teacher of the pupils attending a public school. Little wonder then, that a teacher, designated "supply casual", working in an adjoining classroom and performing what were found to be essentially the same duties as a teaching colleague, designated "permanent", would come to object to the differences in salary and remuneration paid to the other teacher because the "permanent" teacher had access to a different incremental salary scale. The objection was not personal. It was addressed to the Department's salary system. Understandably, the objection became enlarged when two further ingredients were added to the equation. Those ingredients were (1) the significant proportional difference between the salary and remuneration of 72 [2001] EOC ¶93-130 at 75,296 [79]-[80]. 73 [2001] EOC ¶93-130 at 75,289 [45]. Kirby long-term casual teachers on the one hand, and permanent teachers on the other; and (2) the significant and disproportionate number of long-term casual teachers who were women rather than men. As to the first of these considerations, Beazley JA concluded that the difference between the pay scales for permanent and casual teachers was "about 20%"74. This was a figure presumably derived from an average. Certainly, at the level of the respondents' salaries, it was significant. Under the common incremental salary scale, contained within the award, a supply casual teacher is denied access to incremental steps 9, 10, 11, 12 and 13. Thus, as fixed effective from 1 January 1999, the maximum annual salary payable to such a teacher was $40,576. This was so although a supply casual teacher might have performed (in years of service) the amount of work that would otherwise have entitled her or him to progression, through annual increments, to step 13 of the scale. At that stage, as a "senior teacher", a permanent teacher was entitled to be remunerated at an annual salary of "not less than $50,000". The salary difference of $9,424 each year therefore represented, for long-term supply casual teachers deprived of access to the final five annual increments, nearly 20% of the salary of a teacher classified as "permanent", performing the same substantive work and possibly doing so in the same school and in an adjacent classroom. The feeling of resentment and injustice occasioned by this inequality grew into a demand before the Tribunal for legal redress. In the Tribunal's reasons75, upholding such redress, reference was made to the evidence of Ms Heather Gray, Director of Personnel Operations of the Department. She had provided evidence analysing the Department's employment practices. A key schedule in that evidence, quoted both by the Tribunal at first instance76 and by Beazley JA in the Court of Appeal77, described the employment position in the Department's teaching service of approximately 79,000 teachers, both permanent and casual. As explained by Beazley JA: "The profession is a predominantly female profession, with approximately 80% of all teachers being female. However, the numbers of casual teachers employed by the Department is disproportionately female when 74 [2004] EOC ¶93-352 at 73,452 [8]. 75 [2001] EOC ¶93-130 at 75,283 [15]. 76 [2001] EOC ¶93-130 at 75,283 [15]. 77 [2004] EOC ¶93-352 at 73,472 [136]. Kirby compared to those employed permanently. The numbers that were current at the Tribunal hearing stage were: Male Female Permanent Casual Total According to these figures, 79% of all male teachers were employed on a permanent basis. The same was true of 59% of female teachers. Of the 28,010 casual teachers in NSW at the time, 23,182 (approximately 83%) were female. According to Beazley JA, the foregoing figures "have remained relatively stable over the years"78. The Department accepted that the differences in the sexual composition of the respective categories of teachers employed by it were "substantial"79. It was upon the basis of these differences and proportions that the respondents succeeded at trial in establishing their complaint of discrimination on the ground of sex in the access that they were allowed, as long-term supply casual teachers, to the last five annual increments, denied to them as non- permanent teachers. The principal causative factor postulated for these statistical differences was the burden imposed by sex-based obligations, such as child rearing and support of a domestic partner. Then (as now) for the most part in our society, these obligations fall upon women rather than on men. They fell on the respondents, as women, more heavily than on male counterparts who qualified as permanent teachers. involved (and did not It was in this way that the respondents built their claims of indirect sex discrimination. Although the applicable industrial award (and the earlier industrial agreement) did not, by denying access to the five later annual increments, do so by explicit reference to the sex of the teachers (or casual teachers) involve a case of "direct discrimination"), in practical terms it did. Statistically, the disentitlement clearly fell much more heavily upon female teachers than it did on male teachers. The comparative table demonstrates that point beyond doubt. In many cases, it resulted, effectively, in the inability of female teachers to meet the preconditions of geographical assignability said to be necessary for qualification as a "permanent" teacher. Moreover, in the case of female teachers with family responsibilities, as a practical matter, it commonly necessitated the identification therefore 78 [2004] EOC ¶93-352 at 73,472 [137]. 79 [2004] EOC ¶93-352 at 73,472 [137]. Kirby of geographical limitations compatible not merely with personal choice or individual convenience but with conditions of life ordinarily applicable to teachers who were women with family responsibilities. It was thus, in practice, related to the sex of the category of employees who lodged the complaints in the Tribunal. At no stage did the respondents argue that the entire casual teaching system of the Department was discriminatory as such. The Tribunal, having heard the evidence, concluded that the casual relief supply system for short-term casual teachers was distinct and severable from the category to which the respondents belonged as long-term casual teachers "who perform work of equivalent standard and value to permanent staff"80. The Tribunal upheld the "[T]he question before us … is not whether the whole system of casual staffing arrangements is beneficial for the Teaching Service, but whether it is unreasonable to pay female teachers at a lower salary scale if they perform work of equivalent standard and value to permanent staff with access to permanent pay scales." Dispositions below: Addressing that complaint, the Tribunal found in favour of the respondents. The majority of the Court of Appeal agreed. In his reasons, Hodgson JA agreed with the majority that suggested errors of law, identified by the Appeal Panel to justify its disturbance of the decision of the Tribunal, were erroneous82. Hodgson JA found that the Tribunal had not made any of the errors of law nominated by the Appeal Panel. However, in responding to a notice of contention filed by the appellant in the Court of Appeal, Hodgson JA identified what he considered to be three alternative errors of law on the part of the Tribunal83. In effect, these were addressed to the approach of the Tribunal, having found a "condition or requirement" that prima facie was discriminatory against the respondents on the ground of their sex, failing properly to conclude that the "condition or requirement" was "reasonable". By the terms of the legislation on sex discrimination, applicable to this case, the offending "requirement" had to be one that was "reasonable having regard to the 80 [2001] EOC ¶93-130 at 75,284 [20]. 81 [2001] EOC ¶93-130 at 75,284 [20]. 82 [2004] EOC ¶93-352 at 73,479 [178]. 83 [2004] EOC ¶93-352 at 73,480 [188]. Kirby circumstances of the case and with which the aggrieved person does not or is not able to comply"84. The judgment in favour of the respondents, ordered by the majority of the Court of Appeal, included the award of various money sums for damages in favour of each of them. The expected sums varied between $2,952.75 (at the lower end) for some of the respondents, to sums of $40,000 (the maximum payable) to three of the respondents, including Ms Amery. By special leave, the appellant has appealed to this Court raising three issues. These are the only issues that this Court is now required to address. The issues The issues for decision by this Court are as follows: The requirement or condition issue: The respondents contended that the Department required them, as "the aggrieved persons", to comply with a relevant "requirement or condition". According to the respondents, the relevant requirement or condition was that, to have access to the final five annual increments of salary as long-term supply casual teachers, the respondents had to comply with a requirement or condition of deployability with which a substantially higher proportion of persons of the opposite sex (males) complied, or were able to comply, than in the case of females. This, it was said, was indirect discrimination, contrary to the AD Act. The appellant, on the other hand, contended that there was no relevant discrimination on the ground of sex "in the terms on which the employer offers employment" within s 25(1)(c) of the AD Act. This was because the only relevant offer of "employment" was that as a "casual teacher" (not generically as a "teacher"). Accordingly, on the appellant's first argument, no discrimination on the ground of sex was shown in the differentiation between the terms of employment of male and female casual teachers, long-term or short-term, judged within the casual category. All casual teachers, of both sexes, were remunerated in precisely the same way, so that the claim failed at the threshold. Other issues did not then arise. The reasonableness issue: If the first issue were determined in favour of the respondents, as the Court of Appeal unanimously concluded, Hodgson JA nonetheless decided against the respondents' claim on the basis that confining access to the final five categories of incremental payments was not, within the AD Act, one "which is not reasonable" having regard to the circumstances of the case. Any discrimination was 84 AD Act, s 24(1)(b). See joint reasons of Gummow, Hayne and Crennan JJ at [16]- Kirby therefore excusable and, for it, the AD Act afforded the respondents no relief. The residual merits issue: In the event that each of the foregoing issues was determined in favour of the respondents, the appellant nonetheless asked that the Court of Appeal's judgment be corrected to provide for remitter of the proceedings to the Appeal Panel so that what was said to be an outstanding issue of the application by the appellant to that Panel for leave to appeal to the Panel on the merits, against the decision of the Tribunal, could be heard. The appellant asked for a re-hearing of the factual merits, a facility that it said was still available to it, in terms of the AD Act, having regard to the history of the proceedings. The new disposition by this Court: Despite the close attention that this case has enjoyed at three levels of decision-making before it reached this Court, none of the decision-makers who previously considered the case have upheld the appellant's argument on the first issue. Yet it now attracts a majority in this Court85. It is thus determinative of the outcome of the appeal. Like Gleeson CJ and Heydon J, I would not accept the view of the majority on the first issue86. It results, with respect, either from a misapprehension of the "requirement" asserted by the respondents; an unduly narrow reading of that word in the context of the AD Act; or both. I accept that the argument as to whether the "requirement" imposed by the Department for access to the higher incremental scale confined to permanent teachers was shown to be "not reasonable", and properly assessed by the Court of Appeal and by the Tribunal, is more debatable. This is the basis upon which Gleeson CJ and Heydon J would decide the case against the respondents87, agreeing in this respect with the conclusion of Hodgson JA in the Court of Appeal88. Callinan J also expresses agreement with this conclusion89 but disagreement with the Chief Justice on the first issue90. It is my opinion that the Tribunal and the majority of the Court of Appeal were correct in their resolution of the reasonableness issue. 85 See joint reasons at [79]-[82]; reasons of Callinan J at [205]. 86 Reasons of Gleeson CJ at [1]-[17]; reasons of Heydon J at [210]. 87 Reasons of Gleeson CJ at [22]-[26]; reasons of Heydon J at [210]. 88 [2004] EOC ¶93-352 at 73,480-73,481 [188]-[193]. 89 Reasons of Callinan J at [203]. 90 Reasons of Callinan J at [205]. Kirby Because of their conclusions on the foregoing issues, the other members of this Court are not obliged to consider the residual argument of the appellant that the proceedings should be remitted to the Appeal Panel of the Tribunal. My conclusions require me to address the third issue. Because, in my opinion, the majority of the Court of Appeal were correct in their disposition of this issue and because it was highly desirable, if not imperative, to bring these protracted proceedings to a close, I would reject the appellant's request for yet a further opportunity to reopen the factual merits. It is necessary for me to explain and support each of the foregoing conclusions. For the future application of State and federal anti-discrimination legislation, the first issue is by far the most significant. The majority approach inflicts a serious wound on the effectiveness of the AD Act, as I shall now demonstrate. The "requirement or condition" was established The postulated "requirement or condition": It is perhaps understandable that the "requirement or condition" about which the respondents complained has been mistaken at various times during these proceedings. There is a subtle distinction between the complaint actually advanced (that a "requirement" of permanent employment was imposed by the Department for access to the five senior incremental steps in the salary scale) and the complaint, as it was sometimes understood (that the respondents had been denied, or not granted, "permanent" teacher status). On occasion, the identification of the "requirement or condition" by the respondents themselves, and by the Tribunal, may have encouraged the confusion. Once, however, the appeal reached the Court of Appeal, there was no excuse for persisting with any such misunderstanding. In her reasons, Beazley JA made it clear that91: "The appellants contend that the requirement to hold a permanent appointment so as to be entitled to the higher pay scales is a requirement or condition within s 24(1)(b) [of the AD Act]." Beazley JA defined the "condition" as the "requirement to have permanent status". Her Honour pointed to an error in the reasons of the Tribunal, in so far as it had suggested that the applicable award contained a "requirement or condition" that "in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status"92. Her Honour pointed 91 [2004] EOC ¶93-352 at 73,453 [11]. 92 [2004] EOC ¶93-352 at 73,453 [12] per Beazley JA, quoting the reasons of the Tribunal. Kirby out that this was not strictly accurate. The award does not contain such a condition. Instead, "it is the Department's practice of not making over-award payments that imposes the requirement"93. In this way, as Beazley JA explained, the applicable "requirement" had a double aspect. Appointment as a "permanent" teacher was sufficient to secure access to the higher incremental scales under the award. What deprived casual teachers, such as the respondents, of access to those higher scales was the dual condition of (1) not being permanent teachers; and (2) of being subject to a Departmental policy of making no over-award payments, even where such over- award payments might be suggested by particular circumstances, such as the avoidance of unlawful discrimination against some teachers ("supply casuals") on the ground of their sex. As Gleeson CJ has explained, where the Act is addressed to a "requirement or condition"94, it is necessary to identify with precision what the relevant "requirement" or "condition" is. In this case it was the "requirement", in order to qualify for the higher increments of salary, of having permanent status in a context in which no over-award payments were made to other employees (equally valuable as teachers and who were performing exactly the same work95). It was undisputed that the Department could, if it had wished, lawfully pay the more senior supply casual teachers over-award payments equivalent to the award increments. No statutory or other like impediment stood in the way of doing so; merely the Department's invariable practice. It simply chose not to do so. Given its choice, the applicable "condition" of appointment as a permanent teacher, whilst "facially neutral", had the consequence of discriminating against the respondents on the ground of their sex. It was therefore contrary to the AD Act. fewer, proportionately, of female teachers did fulfil as a matter of fact. Furthermore because of their particular "family responsibilities", fewer female teachers could fulfil the "requirement or condition". imposed a "requirement or condition" of permanency that Yet should it be concluded that the "requirement or condition" was inapplicable in this case because, by the statute, the terms of the award or otherwise, a clear distinction was drawn between "permanent" teachers and "casual" teachers, however the latter were to be further sub-classified? In my opinion, this is not an approach to the case that is warranted either by the way the respondents presented their arguments, or by the way the evidence was accepted [2004] EOC ¶93-352 at 73,453 [12]. 94 AD Act, s 24(1)(b). 95 cf reasons of Gleeson CJ at [17]. Kirby at every level below. Nor is it compatible with the proper approach to the statutory phrase "requirement or condition" when used in legislation of this kind. The meaning of "requirement or condition": It is settled law that, in construing anti-discrimination laws, courts are to adopt a "realistic" approach96. This has proved necessary because "the forms of such disadvantage [are] infinitely various"97, requiring the court or tribunal to consider whether, in the particular case, "there [has been] insistence upon a particular requirement". The insistence on the adoption of a practical and not a theoretical approach to such cases is well accepted by authority98. The phrase "requirement or condition" is the same as the language of s 1(1)(b) of the Sex Discrimination Act 1975 (UK)99. It had been recognised in England that it was essential "that the statutory words should be given a liberal interpretation in order to implement the object of the legislation"100. In Clarke v Eley (IMI) Kynoch Ltd101, the English Employment Appeal Tribunal rejected a submission that a "requirement", in such a context, meant a stipulation that calls for, or demands, something of the person to whom it is applied; and that "condition" did not include an identifiable qualification for immunity from a disadvantage. the purpose of Giving the decision of the English Tribunal in Clarke, Browne- indirect discrimination. Those laws had been copied from legislation enacted in the United States, designed to correct employment practices which had involved a disproportionate impact on African American as opposed to white workers102. A narrow approach to the expression "requirement or condition" would frustrate the achievement of the important social purposes of such provisions. As his Lordship explained103: laws against introducing 96 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251. 97 Styles v Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408 at 424 per Wilcox J approved Banovic (1989) 168 CLR 165 at 197 per McHugh J. 98 Styles (1989) 23 FCR 251 at 258. 99 Banovic (1989) 168 CLR 165 at 195. See also at 175, 177 and 185. 100 Watches of Switzerland Ltd v Savell [1983] IRLR 142 at 146. 101 [1983] 1 ICR 165. 102 Griggs v Duke Power Co 401 US 424 (1971). 103 [1983] ICR 165 at 171. Kirby "If the elimination of such practices is the policy lying behind the Act, although such policy cannot be used to give the words any wider meaning than they naturally bear it is in our view a powerful argument against giving the words a narrower meaning thereby excluding cases which fall within the mischief which the Act was meant to deal with." Soon after this approach was established in England, a case arose before the English Tribunal in Home Office v Holmes104. In some ways it was similar to the present matter. The English Tribunal there held that an obligation to work full-time was a "requirement or condition" of employment within the meaning of the UK Act. Waite J, delivering the decision of the Tribunal, said105: "... words like 'requirement' and 'condition' are plain, clear words of wide import fully capable of including any obligation of service whether for full-time or for part-time, and we see no basis for giving them a restrictive interpretation in the light of the policy underlying the Act …" In adopting this approach, the English Tribunal rejected a submission advanced by the Crown employer in that case which was very similar to the submission of the appellant that now belatedly succeeds in this Court. The employer had urged106: "… that full-time work is not a matter which sounds in condition or requirement at all. It is the whole job. It is not a term of the job. It is the job. Part-time work [on this argument] is not a variant of full-time work. It is a different job. 'Requirement' or 'condition' are terms which, properly regarded in their statutory context, denote some hurdle, qualification or obstacle placed in the way of the employee. They are not apt ... to describe anything so fundamental as the duty of work in general or the duty of full-time work in particular." As the Tribunal noted at first instance in the present proceedings107, this approach was rejected in Holmes. Because of the identity and derivation of the relevant language of the AD Act as stated in the Long Title, the similarity of its purposes, and the like endorsement of the broad approach to cases of indirect 104 [1984] ICR 678. 105 [1984] ICR 678 at 683. The approach of the English Tribunal on this point was endorsed by the Irish Court of Appeal in Briggs v North Eastern Education and Library Board [1990] IRLR 181 at 186. 106 [1984] ICR 678 at 683 (emphasis added). 107 [2001] EOC ¶93-130 at 75,282 [10]. Kirby discrimination by courts in England and by this Court108, it is unsurprising that the view that now finds favour was rejected at every level before the appeal reached this Court. Yet now, out of the mists of time, a quarter century after the settled approach to the phrase "requirement or condition" was adopted in England and followed elsewhere, this Court reverses direction and embraces the converse view. It is necessary to realise that such an approach is contrary to many observations of a general character made by this Court. In Waters v Public Transport Corporation109, Dawson and Toohey JJ warned that the alleged perpetrator of discrimination ought not to be allowed to evade the implications of the Equal Opportunity Act 1984 (Vic) by redefining for itself the activities of which the aggrieved person has complained. Effectively, this is what the appellant has sought to do in this case. Yet it is the approach now endorsed by a majority of this Court. It involves insisting that, for the purposes of the AD Act, the aggregated "Education Teaching Service", referred to in the TS Act, must be viewed as strictly subdivided into permanent and temporary (casual) teachers. Consistently with the approach of this Court in Waters, the appellant should not be permitted to rely on such a subdivision of the relevant employment classes so as to escape the AD Act. It may not do so because the subdivision is the very source of the "requirement" which the respondents argue breaches the AD Act and inflicts the impermissible discrimination on them. The approach of the majority effectively allows a discriminator, by the categories of employment that it adopts, to walk straight out of the AD Act. It affords considerable scope for employers to circumvent remedial laws in the employment context, including the AD Act. By the majority's reasoning, all that is required in order to do so is for an employer to adopt the simple expedient of defining narrowly the "employment" that is offered. This cannot be the correct approach to ascertaining the meaning and application of legislation of this character. Because of the "remedial" character of that legislation, this Court is obliged to afford to it a "beneficial" interpretation, that is, "... the widest interpretation which its language will permit"110. The narrowness of the majority's approach can be seen by reflection on its application to the present case. Ms Amery and her colleagues would be known to their pupils as 108 Banovic (1989) 168 CLR 165 at 185, 191, 196. 109 (1991) 173 CLR 349 at 394. 110 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260-261 per McHugh J. See also Qantas Airways Limited v Christie (1998) 193 CLR 280 at Kirby "teachers". Parents and citizens would describe them as "teachers". They would conceive of themselves as "teachers". That is their profession. Yet by an irrelevant statutory classification, which is completely silent on their entitlement to access the full incremental scale of the salaries of permanent teachers, their complaint of discrimination is now supposedly defined out of existence. This is a narrow and antagonistic approach to the interpretation of anti-discrimination law which robs that law of its effectiveness. It is also an approach inconsistent with the purposive approach repeatedly (and recently) expounded by this Court111. That approach has been mandated specifically in respect of anti-discrimination legislation112, and it is not to be turned on and off at will113. It forms part of a modern understanding between this Court and the legislatures of the Commonwealth and the States. At its heart is the role of judicial interpretation in giving effect to the will of Parliament as embodied in its laws, to the fullest extent that the legislative language permits. in our community"114. The sweeping objectives of the AD Act were explained in the lengthy parliamentary debates preceding the passage of the Anti-Discrimination Bill, as "an attempt, as far as legislation can, to end intolerance, prejudice and discrimination the "pervasiveness of discrimination in our society"115, the legislature accepted the need for "positive action", including remedial measures, to redress endemic discrimination. Whilst "[i]n an ideal world, no remedies for discrimination would be required", "unhappily", this could not be said of Australian society at the time of the Bill's enactment. It was the express intention of Parliament that the Act would have Owing 111 Bropho v Western Australia (1990) 171 CLR 1 at 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423. See also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112-113; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]. 112 Waters (1991) 173 CLR 349 at 359. 113 cf Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at 284-285 [112]. 114 New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 1976 at 3337. 115 New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 1976 at 3337. Kirby "wide-ranging "constructive" measures would be used to secure a "more equitable society".117 the State of New South Wales: ramifications"116 for Whilst the words of parliamentary speeches are no substitute for the text of a statute, there is nothing relevant in the AD Act to suggest a narrow reading of the reference to a "requirement or condition". Those words should be given meaning so as to fulfil, and not defeat, the declared objectives of the Act. The first issue – conclusion: When the orthodox and hitherto accepted approach to the application of ss 24 and 25 of the AD Act is adopted, the "terms on which the employer offers employment" as a teacher, within s 25(1)(c) of the Act, include relevant terms specifically addressed to non-permanent casual supply teachers, such as the respondents. Those terms discriminated against the respondents. Subject to what follows, they were therefore unlawful by the operation of s 25(1) of the AD Act. They discriminated on the ground of sex contrary to s 24(1)(b) of the Act ("indirect discrimination"). They did so because the Department, for which the appellant is liable, required the respondents to comply with a requirement or condition of permanent employment in order to gain access to the higher incremental salary scale, a requirement with which a substantially higher proportion of persons of the opposite sex (men) complied or were able to comply. It was thus "imposed by" the Department, thereby rendering the appellant liable in this case to the operation of the AD Act. In the case as presented by the respondents (including the failure or refusal of the Department to pay over-award salaries so as to avoid the unlawful discrimination which the award provisions involved) the breach of the AD Act, complained of by the respondents, was established. The Tribunal was correct to so hold. The Court of Appeal was therefore right to uphold the Tribunal's conclusion on the first issue and to reject the appellant's argument on this point. The "requirement" was "not reasonable" The second issue: The terms of s 24(1)(b) of the AD Act contain an adjectival clause qualifying the noun "requirement". That clause states: 116 New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 23 November 1976 at 4436. 117 New South Wales, Legislative Council, Parliamentary Debates (Hansard) 18 November 1976 at 3347. Kirby "being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply." Curiously, the clause is addressed only to a "requirement" and not to a "condition". However, nothing appears to turn on that limited qualification. It is not necessary to consider, in each case, whether the respondents were "not able to comply" with the precondition of permanent employment (due, for instance, to family responsibilities or domestic support to a male partner or principal breadwinner). It is sufficient that the aggrieved person "does not" comply with the nominated "requirement". Clearly, this was so in the case of each respondent. The second issue thus presents the question whether, having regard to the circumstances, the "requirement" was "not reasonable". This is the point upon which Hodgson JA dissented in the Court of Appeal. It is the foundation for the conclusion of Gleeson CJ and of Heydon J against the respondents. The view adopted by their Honours on this point is arguable118. The correct appellate approach: The starting point for legal analysis on this issue affords a useful reminder of the correct approach to be followed by a court when reviewing the application of the AD Act to the facts of a particular case. This Court has repeatedly insisted on the strict nature of constitutional appeals brought to it119. We are not, therefore, engaged in an appeal by way of rehearing from the Court of Appeal. In such an appeal, if error were shown, our function would be to replace any view taken by us about the reasonableness of a requirement imposed by the Department for the view adopted below120. Because what is "reasonable" and "unreasonable" necessarily involves elements of judgment and evaluation, in a strict appeal a rule of restraint is appropriate. The appellant must demonstrate error. This is another way of saying that, because minds can differ over what is "reasonable" and "unreasonable", it will be more difficult for a party before this Court to show that an intermediate court has erred in reaching a conclusion that a requirement was "not reasonable". In such matters, a court of appeal – and especially this Court – exercises restraint out of respect for its own role and for any advantage that other courts enjoy in the 118 And by Callinan J who is of like opinion, see at [208]. However, because on the first issue Callinan J agrees with the joint reasons, the second issue does not strictly arise for his decision, as the joint reasons recognise. 119 Under the Constitution, s 73. See Eastman v The Queen (2000) 203 CLR 1 at 77 [234]-[236] and the cases there cited. 120 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 879 [65]; 179 ALR 321 at 336- Kirby evaluation of the evidence (which in this case was very considerable)121. It was for the appellant to establish error on the part of the majority of the Court of Appeal122. This it failed to do. The appellant's arguments: Three reasons were raised by the appellant to support its submission that the Court of Appeal (and the Tribunal) had erred in concluding that the requirements which it imposed to gain access to the higher incremental scales, available only to permanent teachers, were not reasonable. These were: The statutory provisions argument: That the conclusion below failed to pay due regard to the statutory provisions applicable to "permanent" and "casual" teachers respectively; The geographical limitations argument: That it failed to give due weight to the geographical limitations applicable to teachers seeking appointment as permanent teachers; and The industrial relations argument: That it failed properly to acknowledge the existence of the relevant enterprise agreement (and later industrial award) which provided the differentiated scale of salaries in an industrial relations environment that rendered alteration of relativities (as by the payment of over-award salaries to some but not all teachers) inconvenient, disruptive and therefore "not reasonable". I will take these arguments in turn. The statutory provisions argument: It is true that the TS Act draws a distinction between the employment of "officers"123 and "temporary employees". Thus, provision is made for the appointment of qualified persons to "permanent positions"124 and "... on a full-time, casual or part-time" basis125. Persons employed in the latter categories are to be appointed "for a period exceeding 12 months from the date of the appointment but the employment may be extended 121 cf Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494; 59 ALR 529 at 532-533. 122 Manley v Alexander (2005) 80 ALJR 413 at [14]; 223 ALR 228. 123 Defined in s 4 of that Act to mean (relevantly) a person employed in that Service other than a temporary employee. 124 TS Act, s 47. 125 TS Act, s 50(1). Kirby from time to time for a further period not exceeding 12 months on each occasion By s 71(1) of the TS Act, the Director-General may direct "the transfer of an officer from one position in the Teaching Service to another position in the Teaching Service" for which the officer is qualified. In the case of an "officer", that is, a permanent teacher, the Director-General is required to ensure concordance between the salary received and the work performed by that officer. In some circumstances, the Director-General may reduce the salary to the maximum determined as appropriate to the work performed by the officer127. Where an officer (that is, a permanent teacher) "refuses to comply with a direction … for the officer's removal from one position in the Teaching Service to another", the Director-General shall "unless satisfied that the officer had a valid and sufficient reason for so refusing", dismiss the officer from the Teaching Service128. Because s 54(1)(a) of the AD Act provides that nothing in that Act "renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of … any other Act, whether passed before or after [the AD Act]", the appellant submitted that the division contemplated by the TS Act, between (relevantly) permanent teachers and temporary (or casual) teachers, remained lawful. It did not, as such, oblige differentiation in salary between permanent and casual teachers. However, it afforded the relevant context for judging the requirements that flowed from these statute-based differences in the Teaching Service (including in respect of salary). The appellant also relied on s 89 of the TS Act restricting "officers" (that is, permanent teachers) from undertaking employment or commercial business activities without the written permission of the Director-General. The respondents accepted the differentiation between the status of permanent and casual teachers reflected in the several provisions of the TS Act. However, they submitted that, ultimately, these provisions were irrelevant to the "requirement" of which they complained. There was no "requirement" in the TS Act obliging differentiation between the remuneration paid to permanent and casual teachers for performing the same teaching duties. Nor was there any "requirement" in the TS Act forbidding the Department from affording access to the later stages of the salary incremental scale to long-term casual teachers. Nor did that Act prevent payment of over-award increments where they were 126 TS Act, s 50(5)(a). 127 TS Act, s 73(1)(b)(i). 128 TS Act, s 75. Kirby required, or suggested, by other provisions of the law. Upon such matters, the TS Act and other State legislation129 were totally silent. The respondents also pointed out that the cited provisions of the TS Act appearing to impose specific burdens on "officers", and hence on permanent teachers alone, were for the most part equally applicable, in practical terms, to temporary (casual) teachers. All casual appointments terminated at the end of the school year but could be terminated sooner. By offering a supply casual teacher a new position in a different school, in practical terms, the same power of transfer was achieved in such a case as in the case of an "officer". Similarly, the requirement for an officer to gain the Director-General's approval to engage in other employment, or commercial business activities, was not different in practical effect, in the case of casual teachers. The short-term character of their appointments exposed them to the risk of non-renewal if it should be discovered in additional employment or activities deemed that inappropriate by the Director-General. Moreover, the provisions of the TS Act governing breaches of discipline apply equally to officers and temporary employees, including supply casuals130 which, in this case, would include the respondents. they had engaged In evidence before the Tribunal, the statutory obligations, now so strongly relied on by the appellant, played no significant part. They were raised by the appellant for the first time in final submissions. This was doubtless because the principal witness for the Department, Ms Gray, explained in her evidence that, in practice, the recruitment and transfer of teaching staff, including of permanent teachers, was not conducted (as the provisions of the TS Act read in isolation might suggest) by peremptory assignment imposed by the Director-General unilaterally to suit departmental needs. Instead, it was conducted in accordance with a staffing agreement reached between the Department and the Teachers' Federation of New South Wales, an industrial organisation of employees. Against the background of the evidence concerning the actual deployment of teaching staff, both permanent and casual, it was therefore open to the Tribunal to conclude that the real, as distinct from the purely statutory, incidents of the employment of teachers by the Department were not as draconian as might appear131. 129 Such as the Public Sector Management Act 1988 (NSW). 130 TS Act, ss 83, 84, 85, 86, 87, 88, 89 and 90. 131 As to the reliance by the appellant on s 76 of the TS Act, which provides for retirement or transfer of "officers" through invalidity and incapacity (a provision not in terms applicable to temporary (casual) teaching staff), the respondents pointed out that the short-term appointments and common provisions with respect to discipline afforded ready means of dealing with a temporary employee in like circumstances. Kirby As pleaded, the appellant's complaint on this score was that the Tribunal had not taken the statutory provisions into account as a relevant consideration. This was the contention also pressed upon the Court of Appeal. Contrary to the appellant's submissions, the Court of Appeal did not ignore the statutory framework. In her reasons, Beazley JA accepted the statutory provisions but noted the practical arrangements, proved in the evidence and conceded by the appellant, under which the provisions "in their practical operation" were not as drastic "as the terms of the [TS Act] might indicate"132. Finally, like the majority in the Court of AppeaI, I would accept the respondents' argument that the statutory framework, including the differing legal incidents attached to permanent and temporary staff, is not sufficient to justify the substantial pay differential of 20% as between permanent teachers and supply casual teachers, effectively for work of the same value. As the settled approach to such questions in anti-discrimination law in Australia is one that addresses practicalities and not theoretical possibilities133, the approach of the majority of the Court of Appeal was correct. On the evidence, their conclusion on this issue is unassailable. The geographical limitations argument: This second argument appears to have arisen largely because of the misconception that the respondents' case involved a complaint that they had been denied permanency. In fact (in the way identified by Beazley JA in the Court of Appeal) it was rather that, being non- permanent teachers in circumstances where over-award payments were not made, the respondents were denied access to the higher increments of salary payable to permanent teachers for doing exactly the same work. In its submission to this Court, the appellant described the limitations that the several respondents had imposed on the schools to which they would accept permanent appointment. It suggested that these were explained on the basis of the "personal preferences" of those teachers. However, such a characterisation would not accurately describe the respondents' evidence before the Tribunal. That evidence indicated that the geographical limitations that the the consequence of having respondents nominated were substantially responsibilities for school-aged children and for providing domestic support to their husbands, often themselves engaged in the education sector. In respect of ten of the thirteen respondents, the evidence showed that they had worked for substantial periods as permanent teachers and then resigned these appointments 132 [2004] EOC ¶93-352 at 73,455 [30]. 133 Styles (1989) 23 FCR 251 at 258 per Bowen CJ and Gummow J; approved Waters (1991) 173 CLR 349 at 395-396. Kirby to bear and raise their children. When they returned to teaching duties they were obliged to reapply for permanency. However, they had to do this from the position of a mother with young children in schools, with husbands, who were themselves working, and with an established home to maintain. The limitations on the ability of the respondents to travel to geographically distant places were not, therefore, accurately described as a "personal" or "lifestyle" choice. They were not based on a whim or mere comfort considerations. They were part of an attribute of the respondents' family responsibilities that were significantly determined by their sex. As has been said in many cases, the focus of attention must be on the "requirement", the reasonableness of which is in question. Against the background of the evidence tendered at the trial, particularly that given by Ms Gray as to the practical attempts by the Department to accommodate the convenience and family circumstances of permanent teachers, it was well open to the Tribunal, and to the majority of the Court of Appeal, to find as they did. In other words, they were entitled to conclude that the unyielding imposition of an inflexible requirement of permanency, as a precondition to accessing the higher increments of the salary scale (in light of there being no over-award payments available to casual teachers like the respondents) was not a reasonable one. By imposing that "requirement" in the stated context, the Department, as employer, disabled itself from adjusting the salaries of casual teachers according to the actual value of their work. Other considerations included those to which They included the removal of indirect the AD Act was addressed. discrimination where it could be demonstrated (as here) that an inflexible requirement fell more heavily on women than on men. The industrial relations argument: I now reach the third and most arguable of the reasons advanced for the appellant to defend the reasonableness of the requirement that access to the later increments for salary increases, in the case of teaching staff, should depend upon appointment as a permanent teacher because this was what the industrial award provided. The appellant complained that the Tribunal, and the majority in the Court of Appeal, had paid insufficient, if any, attention to this consideration. It submitted that compliance by the Department with a formally adopted enterprise agreement or industrial award, determined by the relevant industrial tribunal after a thorough work-value assessment, was manifestly reasonable conduct on its part. Requiring conformity to its terms (including in respect of salary increments for casual teachers including supply casuals) was not therefore unreasonable. On the contrary, departure from such a provision would disturb industrial salary relativities, necessarily affect the salaries of male as well as female casual teachers and amount to an effective redetermination of work values in the payment of salaries to teachers by an anti-discrimination tribunal lacking the industrial expertise to perform that task. Kirby There is no doubt that disturbance of a calibrated scale of salary increments applicable to non-permanent (including supply casual) teachers would cause a measure of disruption and industrial uncertainty. As a matter of industrial reality, the payment of over-award salaries to supply casual teachers could probably not be confined to those who were female. Such payments would have to be made to the much smaller proportion of male supply casual teachers as well. This might, in turn, cause disturbance of previously supposed relativities between permanent and casual teachers, with the former demanding adjustment of their salaries to compensate them for any proved residual inconvenience caused by their unrestricted geographical assignability. Nevertheless, by the AD Act and by the authority of this Court, in judging questions of reasonableness, it is necessary to consider what is "reasonable in all the circumstances"134. This necessitates taking into account the financial implications of change, issues of efficiency and accommodation, as well as the justice of removing a requirement, compliance with which falls more heavily on members of one sex than the other135. Having regard to the purpose of the AD Act136, the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other"137. the decision-maker must "weigh the nature and extent of It is usually inconvenient, and sometimes costly, to change settled ways of doing things that, on closer examination, are found to be based on prejudice and unjust discrimination – direct or indirect – based on unlawful grounds. However, national and international developments, reflected in the AD Act, have adopted the high objective of correcting centuries of neglect, prejudice and injustice, attributable relevantly to differences, or supposed differences, based on the ground of sex138. These differences have existed notoriously in the context of employment and in the payment of benefits and salaries that differentiate between men and women doing what is substantially the same work, to the disadvantage of women. For example, the predominance of women in part-time work generally exists in countries beyond Australia and well outside the teaching profession. Thus, differentiation of this kind has been established in many cases before the 134 Waters (1991) 173 CLR 349 at 371, 379. 135 Waters (1991) 173 CLR 349 at 383-384. 136 cf AD Act, Long Title. 137 Styles (1989) 23 FCR 251 at 263. 138 Purvis (2003) 217 CLR 92 at 103-104 [18]-[19]. Kirby European Court of Justice where claims of indirect discrimination have been upheld139. Such claims have been brought before that Court complaining that the arrangements affecting the work of employees have departed from the principle of European law that the same work or work of equal value must be remunerated in the same way regardless of the sex of the worker. This principle was originally contained in Art 119 of the Treaty Establishing the European Community140. It is now contained in Art 141 of the Treaty on European Union141. This legal basis and its expression and purpose are sufficiently similar to make it useful to take notice of how the European Court of Justice has approached the issue. In Brunnhofer v Bank der Österreichischen Postsparkasse AG, the European Court of Justice emphasised that, whilst different classifications of work were to be considered, they could not be determinative of whether the work performed was in fact different. This was a matter that the Court had to decide on the basis of evidence. Under European law, differences in the remuneration generally paid to women as against that generally paid to men were long treated as presumptively contrary to Art 119 of the European Community Treaty. The position is to the contrary only if the difference in treatment is justified by objective factors unrelated to any discrimination based on sex142. In Australia, it would be wrong in law, and contrary to the purpose of the AD Act and like statutes, to construe the ameliorative provisions narrowly143. If this were done by courts, they would become the undoers and destroyers of the 139 See eg Case 170/84 Bilka-Kaufhaus GmbH v von Hartz [1986] ECR 1607; Rinner- Kühn v FWW Spezial-Gebäudereinigung GmbH and Co KG [1993] 2 CMLR 932. 140 Treaty Establishing the European Community, opened for signature 25 March 1957; OJ C 325 of 24 December 2002 (entered into force 1 January 1958). 141 Treaty on European Union, opened for signature 7 February 1992; OJ C 325 of 24 December 2002 (entered into force 1 November 1993). See Brunnhofer v Bank der Österreichischen Postsparkasse AG [2001] 3 CMLR 9 at 173. 142 See Case 129/27 Macarthys Ltd v Smith [1980] ECR 1275; Case C-243/95 Hill and Stapleton v Revenue Commissioners and Department of Finance [1998] ECR I- 143 Gifford v Strang Patrick (2003) 214 CLR 269 at 299 [81]; Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 332 [152]; IW v City of Perth (1997) 191 CLR 1 at 12, referring to West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 631; Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260. Kirby remedies provided by such legislation144. Where a requirement, inherited from the past, is discriminatory on the ground of sex, and is not reasonable, the decision-maker must be ready to intervene, lest neglect and inaction "keep alive the effects of past discrimination on the ground of sex"145, a wrong which anti- discrimination legislation is designed to redress. Remembering these considerations of approach, laid down in earlier authority of this Court, I will now explain why, notwithstanding a measure of disruption that departure from the terms of the applicable industrial award would cause, the requirement complained of, as contained in the award, was not "reasonable" by the time it came, in this case, under the scrutiny of the Tribunal. I will also explain why there was no error in the Tribunal treating it as unlawful discrimination and in the Court of Appeal affirming that conclusion. The starting point for this exposition is the recognition of the different statutory purposes of the AD Act and the industrial relations law (and its successors) under which enterprise agreements and industrial awards were made in New South Wales. Industrial relations laws pursue the laudable objectives of industrial fairness, efficiency and peace. On the other hand, the AD Act has more specific targets. These are addressed to various forms of discrimination that can arise in society, including in awards and enterprise agreements. The existence of legitimate complaints of discrimination in the industrial context was the justification given by the State Attorney-General146 when introducing the amendment to the AD Act in 1994 that deleted the exception that had previously existed, under which an industrial award was removed from the protected category of legal instruments, compliance with which was excluded from conformity with the AD Act147. As a consequence of the amendment so effected, it was provided, after 1994, as an exception to acts done with relevant immunity under statutory and other authority, excused from compliance with the AD Act, that henceforth this would no longer include "an order or award of a 144 Purvis (2003) 217 CLR 92 at 103-104 [19]; cf IW v City of Perth (1997) 191 CLR 145 Banovic (1989) 168 CLR 165 at 181. This is precisely the idea expressed in Mabo v Queensland [No 2] (1992) 175 CLR 1, cited at the start of these reasons. See above at fn 38. 146 New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 147 By the Anti-Discrimination (Amendment) Act 1994 (NSW), s 3 and Sched 4, cl 23. Kirby court or tribunal having power to fix minimum wages and other terms and conditions of employment"148. In the second reading speech proposing the foregoing amendments to the AD Act, the Attorney-General explained that between 1987 and 1989 the Women's Directorate of the Department of Industrial Relations and Employment in New South Wales had reviewed discriminatory provisions in State awards. Recommendations on 300 awards in nine industries had been referred to the relevant parties for action. In removing the exemption from the AD Act of awards and enterprise agreements, the Attorney-General stated that a one year period of grace existed "within which discriminatory practices in existing awards and agreements will have to be rectified, before the amendment comes into operation"149. Thereafter, the AD Act was intended to have its own direct operation on uncorrected provisions of awards and agreements shown to involve direct or indirect discrimination. The place to make that demonstration good was the venue chosen by the respondents on the faith of the amendment adopted by Parliament following the Attorney-General's explanation, namely the Tribunal established by the AD Act. The purpose of Parliament in enacting this reform was clearly (and was stated to be) to bring award provisions in the State of New South Wales within the jurisdiction of the tribunals and courts having functions under the AD Act. Provision was thus expressly made under that Act for notification to the Industrial Relations Commission of New South Wales of orders made by the Tribunal that affect industrial instruments within the meaning of the Industrial Relations Act 1996 (NSW)150. It is clear, therefore, that the Parliament of New South Wales contemplated orders by the Tribunal that would have the effect of modifying or varying industrial instruments, earlier made. Such were the orders made by the Tribunal in this case. It is easy enough, in the detailed operations of an industrial tribunal, to overlook principles of anti-discrimination law, although such principles are now themselves commonly included in the mandate of such tribunals and, if not, in 148 AD Act, s 54(1)(d). 149 New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 150 See AD Act, s 109: "If the Tribunal makes an order that affects an industrial instrument within the meaning of the Industrial Relations Act 1996, it must give notice in writing to the President of the Industrial Relations Commission of the order as soon as practicable after the order is made". Kirby the reasoning that their members adopt151. Certainly, the fact that the incremental scale for casual teachers in New South Wales was the subject of a work-value determination by Bauer J in the Industrial Commission of New South Wales152 was a consideration to be addressed, and given weight, as part of the circumstances to which regard was required in deciding whether a "requirement", reflected in that award, was or was not "reasonable". However, for several reasons, legal and factual, these determinations could not control the decisions of the tribunals or courts having jurisdiction under the AD Act. On the contrary, the Industrial Relations Act makes it plain that the provisions of the AD Act apply to award-based conditions of employment153. Moreover, a scrutiny of the work value decision made by Bauer J suggests that his Honour's approach to the work value of casual teachers did not specifically address the class of casual teachers identified by the respondents, namely long- term supply casual teachers whose work in a particular school passed a threshold of time service and who were not, for that reason, to be assimilated with short- term casuals, relief and other purely temporary employees154. In addition to this, whilst the AD Act was in force at the time of Bauer J's determination of the salaries of casual teachers in New South Wales public schools, understandably, because of the provisions of the AD Act (then existing), no specific attention was given by Bauer J or anyone else to the arguments based on discrimination such as were placed before the Tribunal in the present case. In these circumstances, it is scarcely surprising that Bauer J (and the Industrial Commission in Court Session on appeal) did not specifically address such issues. It follows that there is no necessary contradiction between a determination of the salaries of casual teachers by an award made under industrial legislation and a determination based on a finding of sex discrimination made under the AD Act. Each tribunal was simply performing its own functions, as those functions stood at the time of their respective decisions. 151 Kirby, "Human Rights and Industrial Relations", (2002) 44 Journal of Industrial Relations 562 at 566; Kirby, "Industrial Conciliation and Arbitration in Australia – A Centenary Reflection", (2004) 17 Australian Journal of Labour Law 229 at 241. 152 In re Crown Teachers (Casual) Award [1983] AR 672. The award was upheld and an appeal against it was dismissed by the Industrial Commission in Court Session. See (1984) 11 IR 196. 153 ss 34, 35, 167 and 169. 154 See In re Crown Teachers (Casual) Award [1983] AR 672 at 711-712. Kirby Interactive dialogue between the Tribunal established by the AD Act and industrial tribunals was expressly contemplated by the law of New South Wales155. In providing relief against the discrimination found by it, the Tribunal, in this case, did no more than to discharge its statutory functions as the AD Act contemplated. The fact that doing so would affect, and disturb, an industrial award (or enterprise agreement) was no reason to stay its hand if (as was the case) indirect discrimination on the ground of sex was proved by the respondents. Yet can it be said that the Tribunal (and the majority of the Court of Appeal) failed to pay any, or sufficient, attention to the disruption which the decision in favour of the respondents would necessitate, having regard to the logical consequences of such a decision for the salaries of non-female supply casual teachers, for the relativities of the salaries of such teachers with those paid to permanent teachers and the resulting industrial uncertainty more generally? Were the respondents simply attempting, as the appellant argued, in a non- industrial tribunal, to reopen the work-value assessment made in 1984 in the Industrial Relations Commission, to which their application ought more properly to be made? Should the respondents be obliged, in effect, by the dismissal of their claims under the AD Act, to return to the Industrial Relations Commission as the proper venue for such complaints? There are several answers to these propositions. First, if the respondents can establish unlawful discrimination under the AD Act, there is no legal requirement for them to proceed elsewhere than before the Tribunal appointed by that Act and empowered by Parliament to give relief where unlawful discrimination, including in an industrial instrument, is proved. The respondents were entitled to redress under the AD Act. Nothing in that Act barred them from so proceeding. Secondly, as individuals, the respondents would appear to have no right to initiate redress, or to reopen an enterprise agreement or award negotiated between other parties, namely the Teachers' Federation and the Department156. The Federation played no part at any stage in the present proceedings. Why this was so is undisclosed. An inference might be drawn that the Federation did not specifically support the respondents157. The respondents may not have been members of the Federation. In any case, defence of the respondents from a 155 cf AD Act, s 109. 156 cf Industrial Relations Act 1996 (NSW), s 11(2). 157 On the other hand it is recorded in the reasons of Bauer J, and in the reasons of the Court Session, that the Teachers' Federation had advocated greater equality in the treatment of casual and permanent teachers. See In re Crown Teachers (Casual) Award [1983] AR 672 at 711-712. Kirby "requirement which is not reasonable" is not dependent on the opinion of the Federation or anyone else. By the AD Act, the respondents have their individual industrial entitlements at organisations may be set in their ways. They may be resistant to demands by individuals or minorities who challenge past approaches and assumptions. they have asserted. Sometimes, law, which When the interaction between the Equal Opportunity Tribunal and the State industrial tribunal, specifically contemplated after 1994, is taken into account, the notion that commended itself to Hodgson JA, that it would be unreasonable for the former tribunal to make decisions affecting industrial relations, cannot provide a blanket excuse for inaction in the face of an established case otherwise enlivening the AD Act158. The Parliament faced up to such interaction. It specifically amended the AD Act to permit it to occur and to provide for inter-tribunal communication about the result. Thirdly, while the award may explain why, as a matter of historical fact or industrial practice, the pay differentials existed (and therefore why the requirement was imposed), this is not the same as proving that the requirement is "reasonable" within the terms of the Act. The purpose of anti-discrimination legislation is to change the status quo and to eliminate endemic discriminatory practices. An approach which allows an employer to prove reasonableness simply by pointing to the current system and the features that explain how that system has developed would render anti-discrimination laws ineffective. To demonstrate that a discriminatory requirement is "reasonable" requires more than an explanation of why, as a matter of practice and history, such a requirement exists. Thus, indirect discrimination is not concerned with an employer's intentions or motives in applying a particular policy, but only with the outcome of its application159. The focus is on the requirement itself. It is not, as such, on the conduct of the respondent in imposing the requirement. In this case, the award and the statutory framework explain why, historically and as a matter of industrial practice, the Department imposed the requirement of permanency to access the higher salary scales. The considerations are indeed historical. They are not unusual in cases of indirect discrimination. However, they do not provide sufficient justification for the requirement itself, which has an established, indirectly discriminatory impact on women that must be eliminated and redressed, as the Tribunal and the majority in the Court of Appeal correctly found. 158 [2004] EOC ¶93-352 at 73,482 [202]. 159 Styles (1989) 23 FCR 251 at 258; Banovic (1989) 168 CLR 165 at 176; Perera v Civil Service Commission (No 2) [1983] ICR 428 at 436. Kirby Analogous industrial cases: There are at least two authorities that illustrate the way in which anti-discrimination law, and specifically the AD Act, may operate despite statutory provisions and industrial practices that appear to support the contrary conclusion. One such case was Allders International Pty Ltd v Anstee160. That case involved a claim against an employer on the basis of its retirement policy which required female employees to retire upon attaining the age of 60 years, whilst requiring male employees to retire upon attaining the age of 65 years. The evidence showed that the employment policy had been formulated years earlier to give effect to the then general age criteria operative in respect of aged pensions and prescribed by s 21 of the Social Security Act 1947 (Cth). Notwithstanding such federal statutory provisions, which had led to a widespread industrial practice throughout Australia, similar to that followed by the employer in that case, the Supreme Court of New South Wales found a breach of the AD Act. The resulting disruption, such as might be caused by giving effect to the AD Act, cut no ice with Lee J161: "[It is not] to the point that, if women like men are entitled in law to work on till sixty-five … the Commonwealth might in due course see no continuing reason to give women the benefits of a pension at sixty years of age. If this occurred, many women might well consider that anti- discrimination laws ostensibly intended to advance their interests had operated disadvantageously to their interests. But such considerations are irrelevant and of course wholly speculative … [They] cannot counteract the meaning to be attached to the clear words in the Statute … The Act is not concerned to deal with what might be called the ultimate interests of either or both sexes looked at objectively – it is concerned only to fasten onto the discrimination and to eradicate it." Secondly, if ever there was an industrial principle well established in Australian employment practice (and sometimes even reflected in industrial awards) it was the rule of "gate seniority" under which, in a case of retrenchment, the criterion "last on, first off" would be applied162. However, when this well established principle was put into effect by Australian Iron & Steel Pty Ltd, it occasioned a clear instance of indirect discrimination on the ground of sex. Such discrimination arose because the recruitment by the employer of female staff in substantial numbers had only occurred in more recent years. The traditional 160 (1986) 5 NSWLR 47. 161 (1985) 5 NSWLR 47 at 60. 162 Banovic (1989) 168 CLR 165 at 170. Kirby industrial practice, if given effect, would therefore fall more heavily on women than on men. This Court affirmed the decisions of the Tribunal and of the Court of Appeal of New South Wales upholding the female employees' complaints under the AD Act provisions, equivalent to those invoked in the present case. In disposing of the appeal, this Court was not bothered in the slightest that its decision involved the Equal Opportunity Tribunal intruding into a traditional domain of industrial tribunals. Nor was it concerned that its decision might cause disturbance of industrial practices long established and well entrenched. Sometimes, in the operation of anti-discrimination law, disruption, a period of inconvenience and disturbance of settled ways is precisely what should occur and what the AD Act, and statutes like it, intend to occur. Nor in that case was this Court persuaded that observance of the "last on, first off" method of retrenchment was "reasonable", having regard to the circumstances of the case. It was held that it was open to the Tribunal to find that the condition or requirement was not reasonable163. As Dawson J explained164: "The requirement imposed in this case was unreasonable because in the particular circumstances it repeated the discriminatory effect of the prior recruitment practice." The same can be said in the circumstances of the present case. The impugned "requirement" contained in the applicable industrial award, limiting access to higher increments in the case of long-term casual teachers because they were not permanent and denying such teachers equivalent, compensatory over- award payments as necessary to avoid discrimination, was "not reasonable". The fact that eliminating this "requirement" would cause disturbance of present relativities and might propel a fresh consideration of the award, in the light of the Tribunal's decision under the AD Act, afforded no reason for denying relief under that Act, where such relief was otherwise warranted. It is natural for the legal mind to thirst for settled ways, including by obedience to industrial awards. However, it must be recognised that laws such as the AD Act are designedly disruptive to some extent. They challenge settled ways because those ways are all too often infused by inequalities and stereotypes 163 (1989) 168 CLR 165 at 181. 164 (1989) 168 CLR 165 at 191. Kirby either expressly provided for or implicitly having that effect. Anti-discrimination laws "fasten onto the discrimination and to eradicate it"165. It was therefore open to the Tribunal, and to the majority in the Court of Appeal, to conclude in this case that the "requirement or condition" imposed by the Department (including as to salary), governing the employment of long-term supply casual teachers such as the respondents, was "not reasonable". The existence and the terms of the industrial award, relied on by the appellant to establish the contrary was unpersuasive. In a strict appeal especially, this Court should not interfere with this finding. No error is shown that would authorise that course. The second issue – conclusion: The appeal to this Court on the second issue also fails. The appellant was not denied an appeal on the merits The third issue: The appellant complained that the decision of the majority of the Court of Appeal had effectively deprived it of its success before the Appeal Panel. Specifically, it alleged that the Court of Appeal's orders had deprived it of the entitlement to seek leave to proceed with an appeal against the Tribunal's decision on the merits166. This complaint is without foundation. It was open to the Court of Appeal in the circumstances, to conclude that the appellant had enjoyed the full opportunity of an appeal on the merits before the Appeal Panel. Further submissions were procured by the Court of Appeal, after its hearing, on whether the appellant had properly kept alive its merits appeal and, if so, whether it had clearly expressed this fact before the Appeal Panel. In so far as the suggested "appeal on the merits" went beyond the debate between the parties as to the reasonableness of the requirement relied upon by the appellant to defeat the respondents' claims, this was not made clear at the proper time. In the end, counsel for the appellant invited the Court of Appeal to decide all matters as best it could on the record available to it. This the Court of Appeal did. The majority in the Court of Appeal concluded that, because of the way it had presented its case before the Tribunal, the appellant was not entitled to succeed on any remaining merits issues167. I am unconvinced that, in reaching this opinion, the majority of the Court of Appeal erred. In particular, having 165 Allders (1988) 5 NSWLR 47 at 60. See above at [189] of these reasons. 166 AD Act, s 115. 167 [2004] EOC ¶93-352 at 73,474 [147]. Kirby regard to the grossly delayed resolution of the respondents' claims and the multiple grounds of contest (many now abandoned), I am unpersuaded that any ultimate injustice was inflicted on the appellant by the course adopted by the majority of the Court of Appeal. Still further delay, by remitting these proceedings once again to the Appeal Panel, in order for it to consider whether to grant leave to reopen the merits of the case, would have imposed a most serious injustice on the respondents. The majority of the Court of Appeal was right to bring the saga of this litigation to a close. The third issue – conclusion: The complaint on the third issue also fails. In consequence, it is my opinion that the appellant's appeal has wholly failed. Orders No separate ground of appeal challenged the form and contents of the individual orders made by the Court of Appeal in favour of the several respondents for the unlawful discrimination against them on the grounds of sex established in their respective cases. This Court should therefore affirm the orders of the Court of Appeal. The appeal should be dismissed with costs. Callinan CALLINAN J. I agree with the Chief Justice that the conduct of the appellant with respect to the respondents, including the remuneration of them, was reasonable within the meaning of s 24(1)(b) of the Anti-Discrimination Act 1977 (NSW) ("the Act"). I would only add that I would have also brought into account, not as a decisive, but as another relevant matter in making that assessment, the observations of the Industrial Commission of New South Wales (Bauer J) in its judgment of 14 September 1983168, which led to the making of the Crown Employees (Teachers and Related Employees) Salaries and Condition Award, the precursor to the industrial instrument, the Teachers and Related Employees Enterprise Agreement, which governed the conditions of the respondents during part at least of the period in respect of which they make their claim: "The loading of casual rates in other awards is based upon the accepted view that the casual work is of at least equal value as the work of the permanent employee. I have expressed the view that this is not a correct conclusion for the work of casual teachers. Allowance therefore has to be made for the lesser value of the work being performed by the casuals in these circumstances. It is in this factor that I find the method of calculating the daily rate results in a loading in the rate of casuals." His Honour's observation could not bind the Tribunal, the Panel and the Court of Appeal of New South Wales in discharging the duty that each had to discharge under the Act, but it was certainly not irrelevant to the issue of reasonableness, that an experienced industrial tribunal, after a full exploration of the respective obligations and entitlements of the various classes of teachers, concluded that casual teaching work was not of equal value to permanent teaching work undertaken on behalf of the State, which, for a long time, has played an important role in educating children throughout the length and breadth of the expansive State of New South Wales169. The requirement or condition Unlike the Chief Justice I would not accept the respondents' case on the requirement issue. I agree with Gummow, Hayne and Crennan JJ that the appellant did not require the respondents to "comply with a requirement or condition" to obtain appointment to a permanent position with the appellant's Education Department. I agree generally with the reasons of their Honours in reaching this conclusion. 168 In re Crown Teachers (Casual) Award [1983] AR 672 at 712. 169 See Purvis v New South Wales (2003) 217 CLR 92 at 172-173 [266] for a brief legislative history of the State's role in education. Callinan There is this also. Their Honours make the point that: "There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher limits of salary, one must cease to be a casual teacher and obtain permanent appointment." (Original emphasis) I quite agree. It is an incongruity which stems from the respondents' formulation of the requirement or condition, which in my opinion distorts the true factual position. The appellant relevantly required nothing of the respondents. It was the respondents who stipulated a condition, or, to put it another way, sought to impose a condition in respect of their employment, that their employment as teachers be confined to particular locations. It was from that, their stipulation, and no condition imposed by the appellant, that the differential in remuneration flowed. The Tribunal and the courts are not bound by an applicant's formulation of a condition or a requirement. It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act. I would allow the appeal and join in the orders proposed by Gummow, 210 HEYDON J. I agree with the orders proposed in the joint reasons. On the assumption that the State had "require[d]" the respondents "to comply with a requirement or condition" of the type set out in s 24(1)(b) of the Anti- Discrimination Act 1977 (NSW), I agree with the conclusion of Hodgson JA in the New South Wales Court of Appeal that the respondents have not demonstrated that the conduct of the State was not reasonable, and with the reasons he gave for that conclusion170. In those circumstances it is unnecessary to decide whether the State's conduct could in fact be described as having required the respondents to comply with a requirement or condition of a s 24(1)(b) type. 170 Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] EOC ¶93,352, particularly at 73,479 [185], 73,481 [193] and 73,482 [202].