Case: Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515
Outcome: distinguished
Mr Lenehan on behalf of the Sex Discrimination Commissioner (Cth), who was given leave to appear as amicus curiae , supported the applicant's arguments. He also advanced an alternative argument. He submitted that even if marital status discrimination is not covered by Article 1 of the Convention, the application of s 22(1) of the Sex Discrimination Act to marital status discrimination is within the limits of s 51(xxix) of the Constitution (the external affairs power) and thus s 9(10) of the Act. He argued that the proscription of marital status discrimination against women will prevent the perpetuation of negative stereotypes about women and can therefore be seen as a means of " nipping in the bud" conduct which may grow into or foster " discrimination against women " within the meaning of Article 1. He referred to Article 5 ([40] above) and cited the decision of a Full Court of this Court in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515. 55 In Toben the appellant had been found by a determination of the Human Rights and Equal Opportunity Commission to have engaged in racial vilification contrary to s 18C of the Racial Discrimination Act 1975 (Cth). He contended that provision was invalid because the source of the s 51(xxix) external affairs power relied on, the International Convention on the Elimination of all Forms of Racial Discrimination , was concerned with the dissemination of ideas based on racial superiority or hatred whereas s 18C was intended only to proscribe acts which could be characterised as expressions of racial hatred. In other words, as I understand the argument, the Act did not give effect to the relevant Convention because it did not go far enough, it did not fully implement the Convention. 56 Carr J (with whom Kiefel J agreed) at [18] accepted that the Act did not fully implement Article 4 of the Convention because provisions in the Bill which created criminal offences in respect of racial hatred had been rejected by Parliament. However, his Honour at [20] said that it was clearly consistent with the provisions of the Convention that a State Party "should legislate to 'nip in the bud' the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination. ... it is for the legislature to choose the means by which it carries into or gives effect to a treaty ..." 57 As already mentioned, the present case is not concerned with the Constitutional validity of s 22. In any event, for the reasons given above, the Convention with which this case is concerned addresses discrimination against women, in the sense defined in Article 1, including discrimination which treats women less favourably than men who have the same marital status. But s 22, which applies to discrimination against men or women, married or unmarried, on the ground of marital status, is not, so to speak, a step along the way to some greater goal concerned with discrimination against women only. In so far as s 22 is concerned with stereotypes, it is the stereotype that might arise from a person being married, or unmarried, irrespective of sex. 58 In Toben the nature of the discrimination (racial) was the subject of both the Convention and Act the point was that the prohibition in the latter only extended to less severe forms of discriminatory conduct than the former. In the present case, discrimination on the ground of marital status per se is not some less severe form of discrimination against women. The "nip in the bud" analysis does not apply. 59 Section 9(10) speaks of "giv(ing) effect to the Convention" . A major element, albeit not the only one, of the Convention is the obligation undertaken by States Parties to legislate in a number of areas to proscribe discrimination against women. 60 Section 22 being legislation, and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia's discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women treating them less favourably than men because they are married. The action of the Registrar in the present case had nothing to do with the applicant's being a woman. Had the applicant been a man, the result of the application would have been the same. 61 Issue (i) must be resolved in the negative. It is not strictly necessary therefore to consider the second issue, but since the matter was fully argued I shall proceed to do so. 62 Ms McLeod submitted that the Registrar contravened s 22 by refusing to consider the application " on its merits ". The Registrar should have gone beyond a " blanket refusal ". The decision involved an "analysis of the factual content, the supporting material, the weighing of relevant discretionary factors and so on ". When it was pointed that this argument did not fit the agreed question, Ms McLeod sought the amendment which appears in [8] above.