Qantas Airways Ltd v Christie S194/1996 [1997] HCATrans 170 (3 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S194 of 1996

B e t w e e n -

QANTAS AIRWAYS LIMITED

Appellant

and

JOHN BAILLIE CHRISTIE

Respondent

BRENNAN CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 JUNE 1997, AT 11.04 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR I.M. NEIL, for the appellant. (instructed by Blake Dawson Waldron)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR F.L. WRIGHT, QC, for the respondent. (instructed by Paul Murphy)

MR P.M. KITE, SC: May it please the Court, I appear seeking leave to intervene on behalf of the Human Rights and Equal Opportunity Commission. (instructed by M. Nicholls, Solicitor, Human Rights and Equal Opportunity Commission)

BRENNAN CJ: And what do you seek to do if you are granted leave to intervene?

MR KITE: Your Honour, our interest is a confined one. It is confined to the proper construction of the term "inherent requirements of the particular position" as used in section 170DF(2) of the Industrial Relations Act 1989 and we seek to file written submissions on that point.

BRENNAN CJ: That is all?

MR KITE: That is all, your Honour.

BRENNAN CJ: What do you say about that application, Mr Bennett?

MR BENNETT: We oppose it, your Honour, but I do not want to take time on it. The only two points which are raised by the Commission are both points which are raised and debated in the respondent's submission, so it is not as if there was anything being put which is not before the Court in any event and, in my respectful submission, it is inappropriate that a body which has an interest in the academic sense but not an interest in the direct sense should intervene in proceedings such as this.

KIRBY J: It is not quite academic, is it? It is a body that is established by the Parliament of Australia with a certain power to seek this leave to intervene.

MR BENNETT: Yes.

KIRBY J: And it has certain statutory functions. And is it not relevant for it to exercise those functions and the Court to make of that exercise what it will?

MR BENNETT: Well, we would submit not, your Honour, in a case where all it is doing is supporting one party and putting arguments which that party is putting in any event.

KIRBY J: Well, next time it might come along and support the other party, or support you.

MR BENNETT: No doubt, your Honour, I would then be putting a different submission. I do not want to take time - - -

BRENNAN CJ: But it also has the advantage, does it not, that you have two possible respondents who might meet your costs if you should succeed?

MR BENNETT: Your Honour, I might be going uphill to obtain an order against my learned friend, Mr Kite's, client. But, your Honour, I do not want to take time with it. The main objection is the time it would take and, if it would take more time to argue it, clearly it is inappropriate.

BRENNAN CJ: Yes. Mr Jackson, what do you say?

MR JACKSON: We do not object, your Honour.

BRENNAN CJ: Mr Kite, you will have leave to intervene on the basis of filing the written submissions, which will be received in that form.

MR KITE: If the Court pleases.

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases, I propose to deal first with the issues concerning the discrimination question, and then with the contract issues. When I have finished dealing with the issues concerned with discrimination, I will briefly refer your Honours to the notices of contention to show how the various subsidiary issues fit into the two principal ones. But I will do that at the end of my submissions. My friend wishes to file an amended notice of contention, your Honour. Perhaps he can do that now.

MR JACKSON: Your Honour, may I seek leave to file an amended notice of contention, and it adds ground 3.

BRENNAN CJ: You have nothing to say about that, Mr Bennett?

MR BENNETT: No, your Honour.

MR JACKSON: I should say, your Honour, we do not expect the Court to deal with the matters - itself to deal with the matters in ground 3. It would be a matter to be dealt with by the courts to which the matter might revert.

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: Your Honours, the discrimination issues involve three questions, one general and two specific. The general question is the general approach to exceptions in the Act of this sort, and this particular exception, whether one treats it as an exception, or whether one treats it as something which is entitled to equal weight. The second issue concerns the words "the particular position", and the third concerns the words "inherent requirements", and I propose to deal first with the question of position, because ultimately this is a case about levels of generality.

The question is, when the Act says that it is not discrimination if what is involved are the inherent requirements of the particular position, one needs to look at the particular position at some level of generality. The level of generality adopted by Justice Gray - and it seems partially to have been adopted by Justice Marshall - is to say, "He was a pilot; his job was to fly 747s. So long as he had a licence, his feet could reach the controls and he knows how to fly it, that's the position. The position is being able to do that."

We say, of course, that one looks at a much more particular level of generality, and one says what he was employed to do was to fly Qantas 747s in a situation where Qantas serviced a large part of the world and in a situation where there was a roster system which had been designed to achieve the maximum levels of fairness and efficiency and within which he could not practically operate. We say that one looks at that level of generality to see what the particular position is.

My learned friends and the Human Rights Commission have relied on a number of international cases which they say support the more general approach. Two things should be said about those cases - and there were two of them. There is what is called the German Work Ban Case and what is called the Case of the Czech and Slovak Republics. What is important about those cases is two things. First, the international convention uses the phrase "a particular job" rather than "the particular position", and we draw attention to the definite article and to the word "job". There is, as I will show your Honours, some Australian authorities suggesting that the word "job" may have a wider meaning than "position". One can understand the man's job is to fly planes; his position is to fly them for Qantas in accordance with a system.

In relation to that, we say what Australia has done by using the words "the particular position" rather than "a particular job" has adopted something less than the whole of the convention. Your Honours will no doubt recall what was said in the Tasmanian Dams Case by your Honour the Chief Justice and Justices Deane and Murphy on the subject of adopting part of a convention, and that was adopted in Victoria v The Commonwealth. So, that is the first aspect of those cases.

The second is that those cases, when one analyses them, do not really support my learned friend. If I could just very briefly - and I will do this in a minute or so - tell your Honours what the overall effects of those cases were, your Honours will see why that is the case. The German Work Ban Case involved a requirement in the Federal Republic of Germany that public servants swear an oath of allegiance in relation to the Constitution, and that involved citizenship and matters of that sort. The Czech and Slovak Republic Case involved people who prior to the separation of the Czech Republic had been people who were on a particular side of politics, and again the question whether they could be employed at various levels of the public service. Of course, there were provisions about discrimination on the grounds of national origin and politics and so on.

In each case, what the court said was that it is legitimate to discriminate in that way at the very highest level. If you have a person who is the adviser on policy matters to the Prime Minister, clearly one is entitled to say, "We will only take someone who is a citizen, we will only take someone who swears allegiance, we will only take someone who has certain political views." If, on the other hand, you are talking about a school teacher employed in the public service, as you were in the German case, or much lower level public servants, then such a requirement does not operate.

That, we submit, supports the approach we take. One looks at the particular position and one looks at the position in the context. One does not say in relation to the senior policy adviser, "What does he have to do, or she have to do?" Clearly, what the senior policy adviser has to do can be done regardless of that policy adviser's allegiances or political views. It is a matter of advising; having the mental ability to advise, and the willingness to devote oneself to that task. My learned friend no doubt argues many cases that he does not believe in, but does so very effectively, as all barristers do. On the other hand, one cannot say that a person is necessarily suitable for that position unless one looks at other factors, and that is really the position here. One is not just looking at whether you can get behind the controls, reach the pedals and make it lawfully go off the ground. One is looking at something more than that, and once one accepts that, the approach taken, we would submit, by Justice Gray and Justice Marshall simply falls down.

May I just show your Honour what Justice Gray said. The matter is dealt with by Justice Gray staring at page 830.

KIRBY J: Just before we go to that, could I just understand your submission that the particular position means the particular position of a Qantas 747 pilot, the particular position of a Qantas 747 pilot flying on the international routes according to the requirements that impose a time limit on their retirement.

MR BENNETT: I would not include the time limits on retirement. That is something which is the inherent requirement in the particular position, rather than the particular position. The position is the 747 pilot who is flying for Qantas, bearing in mind Qantas's route networks and the requirements of its roster arrangements. It is lying in the context of what Qantas does, not simply a man who can drive a plane. The reasoning of Justice Gray commences at page 830. At line 35 he starts by saying:

An enquiry as to whether something is an inherent requirement.....must involve the characterisation -

He says it is difficult. He refers to some matters the trial judge referred to. Then at page 831, line 10 he lists four things:

(a) employed by the respondent; (b) as a pilot; (c) to fly internationally; (d) as a captain; (e) of B747-400 -

Then he says it cannot be an inherent requirement because of - he goes through the various places he cannot fly to. He says at the bottom of that page:

It is only the addition of another factor or other factors to the characterisation.....that would lead to the conclusion.....that age is an inherent requirement -

He then refers to:

the ability to fly anywhere in the world -

For reasons I will show your Honours in a moment, I would not put it as highly as that. He then refers to the rostering system and refers to that over a couple of pages. Then at page 834 he says this at line 10:

In my view, both the contractual requirement to fly anywhere in the world as required -

that was in the original letter of appointment -

and the bidding and roster system are irrelevant to the inherent requirements of the appellant's particular position.....That subsection refers to an "inherent" requirement, namely something that is essential to the position, rather than being imposed on it. I do not think that an employer, by stipulating for contractual terms.....can create inherent requirements -

It could not:

give itself the right to dismiss a woman who became pregnant -

et cetera. Those characteristics would not become "inherent" requirements notwithstanding the contractual term. Similarly, you could not rely on a roster system to do that. At line 49:

protection against discrimination is provided by section 170DF, even when there is a cost to the employer in adopting a rostering system, so as to avoid terminating -

That seems to say that one has to ignore the administrative efficiency of a rostering system and one has to ignore contractual requirements. I accept that a contractual requirement is not determinative, but the reason it is not determinative lies in the words "inherent requirements". It does not lie in the definition of the position. Obviously the example we give in relation to inherent requirements is the familiar example. Suppose Qantas said, "It is a requirement of the position of a Qantas captain that you wear a captain's cap", and a Sikh pilot was unable to comply with that requirement. Clearly making that a contractual term would not make it an inherent requirement of the position. It is not inherent in the position of pilot, whatever the system is, that one wear a cap of that sort, but this is something quite different. One cannot ignore operational requirements. Let me give these two examples to demonstrate - - -

McHUGH J: Perhaps you can, because you have to select the reason. Arguably you have selected the wrong reason. The correct reason may be that you terminate his employment not because of his age but because he is unable to fly to certain countries. Supposing you terminated it on that ground. You may then get an argument as to whether the reason is age, but prima facie I would have thought you were on stronger ground.

MR BENNETT: We have not terminated on any ground, your Honour. We say of course we have not terminated - that is the second argument - but we seek to defend a claim under section 170DF by saying it is an inherent requirement of this position that one be able to fly to a reasonable number of countries. I will use the word "reasonable" for the moment; I will come back to how you define that. That leads to the proposition on the proved facts that it is an inherent requirement that you be under 60 because a large number of countries say one cannot fly to them.

May I just give two examples which demonstrate the fact that it is ultimately necessarily a question of degree. This is what the majority below was not prepared to accept. May I put the two examples which illustrate the question of degree very clearly. On the one hand there was evidence about what were called hajj flights. They were flights which Qantas undertook on a charter basis of taking pilgrims to Mecca for the hajj. Clearly women pilots could not land 747s in Saudi Arabia for a number of reasons and clearly women pilots were therefore not able to bid for those flights and would not want to bid for them, no doubt. No one would suggest that the inability of women pilots to bid for those occasional flights would in any way make it an inherent requirement of their position as 747 pilots that they be male, because it is a number of flights on an occasional basis which does not greatly interfere with the roster system.

Let me put an example the other way. Let us suppose that an airline flying 747s had no internal flights in Australia - all fights went in or out of Sydney - and that none of the countries on the routes to which that airline flew permitted pilots over the age of 60 to fly. Clearly one could not say in that situation, "I can get behind the controls, I can fly the plane. I have a licence to do so. It's just not an inherent requirement of the position". It would simply be impossible for the position to be occupied and performed by a person in that situation.

So those two extreme situations, we submit, give rise to no issue of doubt. There is an issue which has to be decided in each case as to where the line is drawn. Here we have the findings of fact made by Justice Wilcox, which for the moment stand, subject to the notice of contention, and on those findings of fact we submit there is no doubt that one is on one side and not the other side of that line and the test applied against us by the majority in the Full Court was not to look at those facts and say, "Well, on balance these facts are not on that side of the line." What was done, rather, was to say, "Well, the rostering system is just irrelevant." The question of the difficulties you might have in being able to fly to the vast majority of Qantas' network is just irrelevant. The only question is, is it an inherent requirement to being able to fly a plane?

KIRBY J: But it is something within your control. Inherent conjures up something which is integral and closely involved in and essential to the nature of the job or position, whereas the rostering system is something you can fiddle around with and alter and change as you please.

MR BENNETT: Your Honour, certainly the findings of fact would suggest that one could not devise a rostering system which accommodated this.

KIRBY J: It is inconvenient.

McHUGH J: That may be. That may be your problem and this may be the burden of this legislation, but there is still plenty of work that you can find for this pilot to do.

MR BENNETT: Your Honour, there are a number of problems with that. I will take your Honour to the actual findings in a moment, but, first of all, one must look at those findings in the light of the fact that at the moment we are dealing with one person, but there are obviously going to be more and more if this application is successful and one could get to a stage - - -

McHUGH J: Well, eventually you get to the stage - - -

MR BENNETT: Where you have dozens of pilots over 60.

McHUGH J: That may be, but then you may have to dismiss them for another reason, that they cannot carry out the job and not because of their age, but why is this an inherent requirement of the job? I mean, it is different if it was a football club who employs a player to play in the junior league competition, that being defined for players under 23. Age is obviously an inherent requirement, but it does not seem to me to have anything to do with being a pilot.

MR BENNETT: Your Honour, let me put this example. Suppose international pilots' licences were issued by the ICAO, the international body, rather than by individual countries and suppose that that body had a rule that it would not issue licences to people over 60, so that one would simply not be able to obtain an international pilots' licence. Surely so long as that rule remained an international airline which dismissed, if one likes - which is not what we did - but dismissed pilots at the age of 60 would be entitled to say it is an inherent requirement of the position. If you are not 60, you cannot get a licence and you cannot fly.

McHUGH J: That may be, but it is a different situation.

MR BENNETT: Your Honour, it is not. One cannot draw the distinction between saying, "We are dismissing you because you have attained 60," and "We dismiss you because you cannot get a licence in that situation." That is merely a verbal distinction. Once there is coextension - - -

McHUGH J: Not when you look at the policy. The policy of this section is to ensure that age shall not be a criterion except where it is an inherent requirement of the position and, therefore, it being an exception it ought to be read narrowly.

MR BENNETT: I will come to that, but, your Honour, how, we ask rhetorically, is it an inherent requirement of the under 23-year-old sporting team when the club employs the player as a player to play in that that the person be under 23, but not an inherent requirement when the vast majority of countries to which Qantas flies say, "You have got to be under 60"?

McHUGH J: I mean, it is a matter of how you arrange your operations. You could employ people just to fly to New Zealand or to fly to one of the other two countries, but for other reasons, no doubt basically industrial, you have a roster system, you have this.

KIRBY J: It is clear that reorganising your rostering system would be very inconvenient and would involve some cost, but that may be the requirement of this legislation; that people be judged on their merits in Australia, not on their age.

MR BENNETT: Well, your Honour, that weighing test was done by the trial judge, and by the dissentient in the Full Court. The majority of the Full Court said, "We do not apply that test. We start by saying that is all irrelevant." One of the judges said because it is possible to do so, that is the end of it. That was Justice Marshall. The other said, "You do not even ask that question." On Justice Gray's test, it would not be an inherent requirement in the position, even if no countries outside Australia permitted it and there were no internal flights." That is the basis on which we have failed thus far.

The findings, your Honour, are set out on page 4 of our submissions, in paragraph 12, where the trial judge said the system was not "merely a matter of administrative convenience; it goes to the heart of the system of aircrew scheduling. And that system is not an idiosyncratic fad of this employer. It seems to be the only way of ensuring fairness between employees." That, we would submit, is a very strong finding, "it goes to the heart of the system", "not an idiosyncratic fad", "the only way of ensuring fairness".

Even if the details were changed "there would remain a need to use the short flights to even out the number of hours worked by employees". "If a substantial proportion of [short flights] were allocated" it "would be unable fully to use all its other" pilots, "would be paid for doing work that others would have done without extra cost to Qantas." That is the example of the 50 cent and $50 coins, where you have to pay 100 employees $50.50, and one employee says, "Well, pay me entirely in 50 cent coins," of which the employer has a limited supply, he is not going to be able to make up the pay of the other employees properly. It is that sort of problem.

KIRBY J: I think that is a very poor analogy. Maybe the employer just has to visit the bank and change its system.

MR BENNETT: Your Honour, the analogy is not taken right through. The purpose of that analogy is simply to illustrate the type of problem. The analogy assumes a limited supply. Fourthly, once the respondent reaches 60, "Qantas would not be able to use [him] in the way he was used in the past. He could not bid in the normal way; he would have to pick and choose amongst the available slip patterns. In order to make up his hours, he would need to use a large proportion of Qantas' short flights, flights that would otherwise be used to make up the hours of other B747-400 Captains," and would cause "serious practical difficulties."

So, we have very strong findings of fact on that area. The trial judge said on this findings it was an inherent requirement, and we submit that it is, and that the approach taken in the Full Court - the one judge who says, "It is just irrelevant, what you do; it is simply being a pilot," and the other judge who says, "If it is possible to do it in relation to this one person, that is sufficient," we would submit are simply wrong tests. We would submit the correct test is the test taken by the other two Justices, the dissentient in the Full Court and the trial judge. Indeed, we would say that although of course I am the appellant, the decisions below are two, one, one on that issue, and it is the two which is correct.

There are numerous cases which discuss the nature of the term "position". I have set out some of these cases in paragraphs 22 and 25. These cases all stress the importance of looking beyond merely what the person does. Commonwealth v Carter, which is referred to in paragraph 25 is quite a good example; that is a case about a soldier who was HIV positive. The Court said you do not just say, what does he do? Can he do it? One has to go further than that and say, what degree of exposure is there likely to be to other people? Is it a situation where there is likely to be bleeding? What is all the surrounding circumstances? In a - - -

KIRBY J: I think that is a highly controversial case. Whose decision was that?

MR BENNETT: It was a decision of the Federal Court, your Honour, Justice Cooper. All I am using it for - I am not using it for the particular results which, as in most of these cases, can go either way - but the point I make is that one does not just look at the functions of a soldier, one has to look at all the elements of the position - - -

McHUGH J: That is undoubtedly true in some situations. It is probably accurate to say it is an inherent requirement of being a federal judge in this country that you have got to be under 70. What if certain - supposing the 70 age bar only applied to this Court, you would not then say it was an inherent requirement of a federal judge. You might say a judge of this Court, but you would not, because federal judges are - - -

MR BENNETT: No, you would not, but so long as most other countries to which Qantas flies, or whatever the requisite crossing the line number of countries is, say you have to be under 60, it is an inherent requirement of a Qantas international 747 pilot that he be under 60. That is the analogy, your Honour.

KIRBY J: Perhaps that will never change unless a number of countries, including Australia, start to change it, and judge people's capacity to be pilots on their objective capacity not on their chronological age, because it is the common experience of humanity that people age at different rates.

MR BENNETT: Of course. No doubt, that is a matter on which views have been expressed internationally. That is a reason for Australia to make international representations, which it may or may not be making, rather than a reason for an Australian airline to be obliged to employ people who may be unable to perform the substantial function.

BRENNAN CJ: It may be that State judges, with an age limitation of 70, they are no longer bound because of inconsistency with this provision.

MR BENNETT: That is possible, your Honour, and it would be a fascinating case to argue.

McHUGH J: It is a question of whether they are employees.

BRENNAN CJ: That is right.

KIRBY J: Judges are not employees, they are commissioned.

MR BENNETT: But those issues do not arise in this case; this case is analogous to the federal constitutional limitation, because one has a fixed background fact. At the date of termination, which is the relevant date, there is a fixed fact, namely that certain countries have the limit. If one accepts the example of the under 23 football team, then the only difference between that case and this one is that it is possible to find something for this person to do, with huge disruption and problems and so on, which will become greater and may cease to be the case as others get into the category.

McHUGH J: Yes, I know, but it would be different if you had led evidence to show that no person over 60 has the reflexes, quickness of thought, necessary to fly these planes. But the case is not on that basis - - -

MR BENNETT: Your Honour, we did at the trial and we lost, but that was the alternative basis that was run at the trial and there is no appeal against that and we accept it. In fact, your Honour, at the trial there were two cases, one of an internal pilot who had been with Australian Airlines and one with an external pilot, who was Mr Christie, and the internal pilot succeeded because there was only the medical issue your Honour refers to, which was lost; the external pilot failed because of the international ruling and, your Honour, we submit that is an inherent requirement of this particular position.

KIRBY J: Within Qantas there are two different career streams though there is some movement, I assume, between the two.

MR BENNETT: Yes, there is some movement, your Honour, but they are different career streams for this reason, that one is employed to fly particular aircraft and one is only certified to fly particular aircraft. For a 747 pilot to fly a 737, it is not simply a matter of saying the greater includes the lesser. One in fact requires further training to go down as one does to go up and one is trained to fly and certified to fly normally one type of aircraft at a time and the burden of the degree of the things one requires to do to be able to maintain the qualification effectively mandate that system.

KIRBY J: The United States has laws against age discrimination. Are there any cases in the United States dealing with this problem?

MR BENNETT: There are some, your Honour, and I will take your Honours to one particularly concerned with pilots, but so far as international pilots are concerned the United States on the evidence imposes the rule very strictly and it is not merely a matter of landing at United States airports. It is flying over United States airspace or controlled airspace, which means that is the reason - - -

KIRBY J: And that despite the federal laws on age discrimination?

MR BENNETT: Yes, your Honour, and that means, for example, it is the United States law which prevents Mr Christie flying to Tokyo because that involves on some of the routes flying over airspace controlled from Guam and the United States law there requires that he be under 60. So the United States has certainly taken that - there are cases dealing with internal pilot arrangements which are different and do not depend on this issue and also the cases involve a slightly different test. The test there is bona fide occupational qualification, which is slightly different from this test, but in any event the issue in those cases has been the issue of fitness by age, the medical issue if one likes, and we are not arguing the medical issue in this Court.

We are putting it squarely on the basis that this is the under-23 football team, except that one or two small country centres will allow you to play if you are over 23 because they have exceptions to the rule and that, we submit, is the sort of situation we are dealing with here. May I perhaps put the example in that form? Suppose one had the under-23 competition but there was an exception in relation to games played in Bourke and Broken Hill which was one or two of the games per year. One would not say it ceases to be an inherent requirement of being in the team because one might be able to play in those towns.

Once the limit is there and is imposed by an authority over which the employer has no control and whose rule is not invalidated by a federal law then, in my submission, it must be an inherent requirement and this is the classic case of that. The importance of the phrase "inherent requirements of the position" is that the question of degree and the question of the extent to which one can reasonably alter the system is really controlled by the word "inherent" and not by the definition of the position and that is why we say the Sikh pilot case or the women's lavatory cases are cases which are very easy.

The employer can certainly devise a system and say, "I employ you to work in a place where there are no women's toilets or to work in a way that you wear a Qantas cap whenever you work and that is my system and that is what I employ you to do." Clearly that fails because it is not an inherent requirement of the position, but that ceases to be so once one is dealing with matters such as licensing and ability lawfully to perform the greater part of the duties.

The phrase used in the leading Canadian case which I have referred to in paragraph 29, Ontario Human Rights v Borough of Etobicoke (1982) 132 DLR (3d) 14. Your Honours will not need to go to it; it is sufficiently referred to in the submissions. That was a case involving firemen over 40 where the borough, largely it seems on the basis of anecdotal material that firefighting is a young man's game, had said that firefighters had to retire at 40. The Canadian Act used the same sort of language as the American cases; "bona fide occupational qualification" seems to be the phrase used there. In relation to that, as your Honours see from the top of page 10 of my submissions, what was said, It:

must be related in an objective sense to the performance.....in that it is reasonable necessary to assure the efficient and economical performance of the job -

The same sort of test was applied in Bhinder's Case which is referred to there. That was a Sikh case involving the question as to whether a safety helmet had to be worn. The argument was that the Sikh employee who will not wear the safety helmet in the yard is creating risks, and so on.

Again, the approach taken was that one looks at the reasonableness. If the situation is that it is only once in a thousand years that you are going to have an accident where the safety helmet is going to protect him, then it is unreasonable to require him to wear it. If he is in a position where quite regularly heavy objects fall on one's head and there is a serious risk, then it is reasonable to say that a Sikh who will not wear a safety helmet is unable to perform that job. So it is always a question of degree and looking, on that test, at what is reasonably necessary to assure the economic and efficient performance.

If one applies that test to the word "inherent" - and we submit it is a sensible test to apply to it - then one reaches the result that in this case his Honour's decision should be restored. The Canadian test, incidentally, unlike the American test, uses the words "requirement and position" but does use it in the context of the bona fide occupational qualification.

KIRBY J: How did those words creep in? Are they a gloss by common law, "bona fide requirement of the position", or is that in the United States Act or - - -

MR BENNETT: It is really the way the different statutes have developed over the last 20 years since this area of law has developed and the way it has been worded in different countries. The full Canadian test is set out at the bottom of page 9 of our submissions where your Honour sees it is a "bona fide occupational qualification and requirement for the position or employment". It is a different phrase of course and one can analyse the individual words.

The full statutory provision - it is subsection 4(6) of the Canadian Act - which is set out at page 18 of the report of the Etobicoke Case, is:

The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment.

That is the full phrase.

Going back a moment to the first aspect, the question of an exception, your Honour Justice McHugh put to me earlier that this was an exception which should therefore be construed narrowly. May I simply remind your Honours of what was said in Searle Australia Pty Limited v Public Interest Advocacy Centre [1992] FCA 241; (1992) 36 FCR 111 in relation to the Freedom of Information Act and the exceptions there. The relevant passage is at page 114. This of course is dealing with an Act which has a very large number of exceptions to the principles it creates. We would submit the approach taken in this case is one that is appropriate here. It appears at page 114 and under the heading "Interpretation of the FOI Act" in the middle of the page, the Full Court said this:

Mr Bayne submitted that s 3 of the FOI Act required the court to adopt a "leaning approach" to the interpretation and application of the exemption provisions -

That is very much what both the respondent and the Human Rights Commission do in this case; they say, "Well, there is a general section saying the purpose of this Act is to get rid of discrimination, therefore you must have a leaning approach in relation to it":

that is, that the court should "lean" in favour of disclosure of documents. Mr Bayne acknowledged that such an approach was rejected in the News Corp Ltd v National Companies and Securities Commission (184) 1 FCR 64. In that case (at 66) Bowen CJ and Fisher J said:

"In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act."

Then Mr Bayne said this should be no longer considered good law, referred to some other cases and then finally, on the next page, at about point 6 they quote a passage from Arnold v Queensland, where Justice Burchett said:

"In my view it is too late to regard s 3 as introducing any bias -

and their Honours conclusion is:

None of the cases cited by Mr Bayne in respect of this matter calls into question the continued appropriateness of News Corp. His submission on this aspect of the case should be rejected.

KIRBY J: But is there not a lot of authority that says with anti-discrimination law, given it's beneficial and in some ways novel purposes, that you approach it as beneficial legislation to give it a beneficial construction?

MR BENNETT: Your Honour, yes, where one is dealing - - -

KIRBY J: It does not mean distorting the language, but you do not construe it over-narrowly or you might destroy its effectiveness.

MR BENNETT: Yes, your Honour, that is so. That is where one is construing a primary provision. But where one has a provision like this, where there is a provision and an exception, one should treat them not as the provision being what is important and being broadened and the exception being narrowed, but rather as laying down what the delineation is.

McHUGH J: That is not the view that Chief Justice Dixon took in Bhinder's Case. He not only applied the general principle that Justice McIntyre had set in the O'Malley Case, but at page 487 in the report in Bhinder, talk about an exception. He adopted the words of Justice Le Dain:

that the exception must be considered in relation to the employee affected; otherwise the exception could render the concept of indirect discrimination illusory.

MR BENNETT: Yes. Your Honour, that, we would submit, is not inconsistent with what I have put. One simply says, "Here is a section, here is an exception." Obviously if the exception is so wide as to render it illusory, one would not construe it that way. We have accepted that the example of the Sikh's turban, the example of the hajj flights, are all cases where one could not say this is an inherent requirement by declaring it to be so, or by moulding the position in that way.

But nevertheless, what the exception does do is lay down a standard. If one looks at the wording of the section 170DF itself, your Honours will see what it does is to say, after subsection (1), which sets out what the employer must not do by of discrimination, it says in subsection (2):

Subsection (1) does not prevent a matter referred to in paragraph (1)(f) -

that includes age -

from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.

It takes it out.

GAUDRON J: Do you make anything of "is based on" rather than if the consideration is an inherent requirement? It does seem to be somewhat wider than the ordinary discrimination law exception.

MR BENNETT: Yes. That might be, your Honour, to deal with the other question I was asked by Justice McHugh earlier about the distinction between saying, "I dismiss you because you have turned 60", and, "I dismiss you because people of 60 cannot get licences to fly over to most countries." It may be concerned with that distinction, and designed to avoid the need to verbalise it one way or the other if one is clearly within the substance of it. So, one might say the reason is turning 60, but the inherent requirement which it is based on is being able to have a licence to fly to these various countries.

GAUDRON J: It does seem to be that we are not concerned with whether being under 60 is an inherent requirement though, we are concerned with a somewhat broader question.

MR BENNETT: We do say being under 60 is an inherent requirement once you take as a given the legislative requirements of a large number of countries and the fact that Qantas flies to them.

GAUDRON J: But the exception may be broader than your argument, is what I am putting to you.

MR BENNETT: It may well be, your Honour. Certainly, as your Honour says, it is unusually permissive language for discrimination legislation.

GUMMOW J: In other words the phrase "based on" may serve a function which brings in these immutable foreign law requirements into the notion of inherent requirement.

MR BENNETT: Yes, we would so submit, your Honour. Of course, what this section does is say that subsection (1) does not prevent, so it takes it away from the referent to which subsection (1) refers. It is put in a very broad way. It is of interest to see what was said - - -

BRENNAN CJ: I do not know that it adds much in terms of breadth, does it? The base for the purposes of subsection (2) has got to be the inherent requirements of the particular position. The argument, as I understand it in the present case, is what are the inherent requirements of the particular position?

MR BENNETT: We say it is to be able to fly to a reasonable number of countries to which Qantas flies.

BRENNAN CJ: That is right, yes.

MR BENNETT: Again, using the word "reasonable" at the moment in a non-technical sense.

BRENNAN CJ: Yes. But if that be the inherent requirement of the position, then age can be seen as a reason that is based on that.

MR BENNETT: Yes, precisely, your Honour.

BRENNAN CJ: The question still remains whether or not that is an inherent requirement which is denied by the majority of those in the court below.

MR BENNETT: Your Honour, certainly Justice Gray would have denied that. The inherent requirement is being able to fly to whatever the cut off number of countries is, somewhere between one country and all countries, and the reason is turning 60 and is based on that. Whereas if one looks at what - the approach taken by Justice Gray was to say one just looks at being a pilot and flying a plane, but if you take the approach taken by Justice Marshall, he says, if it is at all possible, with whatever degree of economic inconvenience to find some way you can do it, then it is not an inherent requirement. We say that is, in any event, inconsistent with the findings below once one assumes there are going to be more and more people in this situation.

May I just also give your Honours the - on this point about exceptions, may I remind your Honours of another aspect of what was said in Bhinder. If your Honours go to - and what they said on the subject of the distinction between exception and defence. At page 485, in Bhinder's Case - this is in 23 DLR - the phrase there was:

It is not a discriminatory practice if

(a).....based on a bona fide occupational requirement.

In other words, prima facie discrimination in employment, on the basis of any of the prohibited grounds..... is not a "discriminatory practice" for the purpose of the Act if it is based on a bona fide occupational requirement. Thus, the wider the parameters of the bona fide occupational requirement, the narrower the range of prima facie discrimination -

Again, we would submit what is being said is this is something which is simply outside. There is a qualification at the bottom of page 500 where they say:

It was said in Etobicoke that the rule under the Ontario Human Rights Code was non-discrimination, while the exception was discrimination. This is equally true of the Canadian Human Rights Act. The tribunal was of the opinion that a liberal interpretation should be applied to the provisions prohibiting discrimination and a narrow interpretation to the exceptions. Accepting this as correct, it is nevertheless to be observed that where s 14(a) applies, the subsection in the clearest and most precise terms says that where the bona fide occupational requirement is established, it is not a discriminatory practice. To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee.....is not to give s 14(a) a narrow interpretation; it is simply to ignore its plain language.

And so on.

KIRBY J: The problem with giving the exception a broad construction would be that if the Court adopted or sanctioned that approach then you would end up putting a whole team of camels through the statute because one employer would say, "I cannot send female employees to X and Y, and therefore that should not be imposed upon me", or others will say, "I cannot send a person who has an established civil liberties record to A and B and therefore that should not be imposed upon me". I mean, you end up completely destroying the effectiveness of the statute which is for high public purposes that have recommended themselves to the Australian Parliament.

MR BENNETT: There is no doubt that if taken to an extreme position, of course the exception could destroy the rule. We do not suggest for a moment that one reads up the exception or that one reads down the primary provision. What we say is, read the words and we give them both the appropriate weight that the words call for.

KIRBY J: That sounds awfully like Justice Marshall's approach, not Justice Gray's, but Justice Marshall says you read the exception in the context of an employer which, with some inconvenience and perhaps even a little bit of unfairness to other captains and sundry organisation, can accommodate this, and you should accommodate it.

MR BENNETT: Yes.

KIRBY J: They are the values of the Australian community imposed on you as an Australian corporation.

MR BENNETT: He, of course, came to a different view on that issue to Justice Wilcox and Justice Spender. In a sense, if I can show that one member of the majority - - -

KIRBY J: I do not think we are playing a numbers game here, we are looking at the issue as an issue of principle. It goes far beyond this case.

MR BENNETT: Of course, it does, your Honour. We say, in a sense, Justice Marshall's approach is the correct one in the sense of saying that it is a weighing exercise. But he then goes on to say, to apply the weighing exercise, by saying that one disregards any considerations of efficiency or of that type. There is a difference between what Justice Marshall and Justice Gray would do if every country to which the airline flew said you had to be under 60. On Justice Gray's approach we would still have to employ him. On Justice Marshall's approach we would not. But, on Justice Marshall's approach, if it was highly inconvenient, involved huge extra cost, total disruption to the system and so on, one would still have to do it. We submit that the phrase "based on the inherent requirements" simply does not go that far. If one gives those words a fair meaning, one can accept that you cannot dismiss the woman because she cannot fly the plane once a year to the hajj, but you also do not have to keep the pilot who can only fly from Sydney to Melbourne and nowhere else, or perhaps to nowhere at all.

The law is always concerned with drawing lines and applying tests and parameters, and here the statute has given us parameters. We would submit one obtains the parameter, not by starting and saying, "We have to read down the qualification and read up the section and so on", but rather by saying what is a fair meaning of the words, you must not terminate on the ground of age, but that section does not prevent age being a reason for terminating if it is based on the inherent requirements of the particular position. It then becomes a matter of construing those words in a sensible way.

KIRBY J: But " inhere" seems to my mind to conjure up being integral to and of the nature of and the problem I have is, I suppose, the one Justice Marshall has, that it is not of the nature because you demonstrate that by allowing them to fly to Denpasar or to New Zealand or Fiji. So it is not of the nature of it.

MR BENNETT: It is of the nature of being a pilot that one is licensed to fly a plane and permitted by the laws of the country to which one flies it to fly that plane. Now, one then says, "Here is a person where there is an inherent requirement of some of the duties which is not an inherent requirement of others of the duties," and it then becomes a question of degree whether it is an inherent requirement of the position and it is not in the case of the woman with the hajj. It is in the case of the 60-year-old pilot who is limited to New Zealand, Bali and internal Australian flights and perhaps Fiji with further problems. The passage in Bhinder which I was trying to find before - and I apologise for not doing so - is at page 503 and it is at the end of the first paragraph on that page, six lines from the end of the paragraph:

I agree with McIntyre J. that discrimination is per se victim related but the occupational requirement is job related. This is, I believe, why s. 14(a) provides that a genuine occupational requirement is not a discriminatory practice as opposed to making it a defence to a charge of discrimination -

that is the distinction I was looking for -

which would enable the employer to establish that he had discharged his duty to accommodate the particular complainant up to the point of undue hardship.

So it is not to be seen as a defence. It is, rather, something which takes it out of being a discriminatory practice at all. It is not that one has discriminated and this is an excuse. It is that if the qualification applies it is not discrimination and that wording is picked up in the wording of this section.

BRENNAN CJ: That is why I was wondering if, looking at the phrase "inherent requirements of the particular position", one should regard requirements of the position as being inherent if they are requirements which are selected on a rational basis other than the bases which are set out in paragraph (f).

MR BENNETT: Yes, your Honour. So long as there is that type of rational basis, which there clearly is in this case, then we would submit it is sufficient and that leads to the paragraph (f) basis.

BRENNAN CJ: That raises one difficulty, it seems to me, and that is that it does not cope with the situation where, for example, no female toilets where it is desirable that if need be the female toilet should be installed.

MR BENNETT: Your Honour, in that situation it is not an inherent requirement because of the reasonable practicality of constructing the female toilet. One has to look at that in the same way you have to look here - - -

BRENNAN CJ: But reasonable practicality would not come into it if one approached it in the way which I put to you. I am only putting to you for the purposes of comment, Mr Bennett.

MR BENNETT: Perhaps I did not fully understand what your Honour put to me and I apologise for that.

BRENNAN CJ: Well, what I am putting is this, that if one looks at "inherent requirements of the particular position", one might limit the word "inherent" or define the word "inherent" as qualifying those requirements of the position which have been selected without reference to the grounds specified in paragraph (f). So that if, however, the grounds specified in paragraph (f) are, so to speak, incidental to the inherent requirement then the dismissal on the ground of paragraph (f) does not offend, but it comes back to the question of what is the basis of the selection of the requirements of the particular position which might be looked at in order to determine whether they are inherent.

MR BENNETT: Your Honour, we would accept that as an appropriate test, because what I understand that to do is to say, one looks at the inherent requirement which must not itself be age, sex or one of the specific matters, and one says here, the inherent requirement is to be licensed to land the plane in a reasonable number of countries. One then says, the particular requirement, the prohibited criterion of age, is something which is directly relevant to that, or based on it, and which one then has to rely on. If that is what your Honour is putting to me, I would respectfully adopt that.

BRENNAN CJ: That is what I am putting to you, but it seems to be that the way in which I put it to you raises the problem of the female toilets. In other words, you have got BHP, to which a woman makes an application for appointment in one of the heavier parts of the steel industry - a case that has been before this Court - and the question arises, in the area where this work is to be done there are no female toilets. One can say the requirements of the place are that you should work in this place. That is not selected because of any question of gender.

MR BENNETT: Your Honour, we would say in that situation it is not an inherent requirement, because the word "inherent" and, indeed, the word "requirement" carry with them the element of reasonableness and subjectivity. In order to see if something is an inherent requirement one would have to ask how expensive would it be to build a toilet block? How reasonable is it that one should be built, bearing in mind the importance of having no discrimination and considering all those factors. One would have to weigh those to see, at the end of the day, whether it was reasonable or not.

In the case of a female toilet it would almost always come down in favour of the principle of non-discrimination rather than the qualification, because the expense is normally going to be well within proportion. If it was a job that was lasting only one day, perhaps a job requiring someone to be on duty for 24 hours, once and once only, and there was no toilet, it might fall on the other side of the line. That would be a very exceptional case. In that way, we submit, in the very first part of your Honour's test, that element of reasonableness comes in, in performing the exercise.

McHUGH J: But is not the problem that this is a section which is dealing about termination of employment and it does not use the word "discrimination", I do not think, but the effect of subsection (1) is to prevent discrimination with an exception. So one does not really ask questions about whether it is reasonable or rational, one applies subsection (1) and then one asks whether the employer is terminated for a reason based on the inherent requirement.

MR BENNETT: Yes, one does, your Honour. That is ultimately the question. But even using the word "exception", although in one sense it may be accurate, in another sense it is not quite the correct way to characterise the language of this subsection. The phrase used - - -

KIRBY J: What word do you use, a derogation?

MR BENNETT: It is taken outside the general category created.

KIRBY J: It is a deduction from the definition of "actionable discrimination".

MR BENNETT: It is an element of the definition that it not be within it almost. Can I just read your Honour a passage from a case which says that in the Court of Appeal of New South Wales. It is the judgment of Justice Samuels in a case in which your Honour sat, of Jamal v Secretary Department of Health (1988) 14 NSWLR 252. That was a case involving a psychiatrist with cataracts, and the issue there was the extent to which that interfered with the performance of his duties. The passage is at page 265 in the judgment of Justice Samuels, as his Excellency then was. If your Honours see at E on that page, referring to the State Act, which had similar provisions, his Honour said this:

It is at this point that s 49I comes into operation. The conduct which is at first sight discriminatory -

it is rather like the language of Bhinder in saying that -

in a case such as the present is the employer's adverse judgment of the consequences of the appellant's impairment which the employer perceives to be such as will prevent the appellant's carrying out the work. That judgment may be cleansed of fault however by the operation of s 49I if the employer can satisfy its requirements.

That is wholly consistent with AMP v Goulden.

KIRBY J: That sounds more biblical than legal, "cleansed of fault".

MR BENNETT: It does, your Honour, but we would say it never got dirty in the first place.

McHUGH J: That is right. You cannot start cleansing it. It never entered the dirty pool.

MR BENNETT: There is even a passage in the International Labour Conference Report which I think is in the materials. Rather than find it for your Honour, I will just read your Honour the passage. It is in Report III of Equality in Employment and Occupation, Chapter III, paragraph 125, the heading being "Inherent requirements of a particular job", which your Honours recall was the international one. The phrase used was this:

Normally, these requirements do not constitute discrimination under the terms of the Convention; they fall beyond its scope. Problems regarding the distinction between illegal discrimination and the inherent requirements of a particular job may arise in one of two ways: either a required qualification does not prove to be inherent to the job in question -

or it does, et cetera. But again, the same approach that one is not so much saying, "Here's a broad principle we must read up and an exception we must read down". It is rather a matter of looking at what is there.

BRENNAN CJ: That is the difference between the mode of interpretation perhaps of international instruments and of domestic statutes. I mean, take, for example, the International Convention Against Racial Discrimination. There the view of what in our Act falls within special measures is regarded simply as non-discrimination; in other words, beneficial treatment of those who are disadvantaged. It is open to the international community to deal with matters in that way but, if the international law is translated into a domestic statute, do we not have to apply, so far as is consistent with ordinary principles, the construction canons which we apply to domestic statutes?

MR BENNETT: Your Honour, I would so submit. There are cases suggesting that one is assisted by a desire for international uniformity and so on, but we would submit that those ought not to be controlling but that in the present case the issue does not arise because, as I submitted earlier, we have adopted something less than the international convention. The international convention has a narrow exception, "the inherent requirements of a particular job". We have a broader one, "the inherent requirements of the particular position". There being a broader exception, we have implemented something less than the full convention and we have to construe that phrase. We are not unhappy with the approach taken in the European cases I have referred to and which are the ones relied on on the other side so far as the result is concerned.

KIRBY J: Did you say the ILO report was in the materials we have?

MR BENNETT: It is certainly referred to. I can give your Honours the report. I hand up six copies.

McHUGH J: This argument of yours, how do you define what is inherent? You seem to accept that - you have to contend that it is a matter of degree. Supposing Qantas or some other airline flew to, let us say, some Asian countries who had a policy they would not allow Caucasian pilots to land in the country. Does that mean it is an inherent requirement of the particular position of the airline that you be a non-Caucasian?

MR BENNETT: Your Honour, if one had an airline that flew only to such a country, yes.

McHUGH J: Well, then supposing it flew to 10 countries, seven of which had this policy?

MR BENNETT: At some point, somewhere between one and 10, a line is drawn.

McHUGH J: It does not sound like an inherent requirement to me, if it has got to be a matter of degree.

MR BENNETT: Well, if one does not say that, then one - it becomes impossible to apply the exception in a way which is going to work. Almost any situation one could imagine of that type is going to involve questions of degree, because one is weighing an ability to do something less than the full job, even in the case of the woman piloting the 747 to Saudi Arabia during the hajj. That example is one where she is able to do less than the full job for which she is employed. No one would rationally suggest it is an inherent requirement at that stage. At the other end, if every place to which the airline flies has a restriction, if one had an airline which only did hajj flights, then clearly it must be an inherent requirement of that position that one be male.

McHUGH J: I know. But that is because - taking up a point you made at the commencement of your argument - the level of abstraction that you define the particular position. The illustration you gave about Iran, the particular position is to fly planes to Iran. But if you define the position here as an international pilot flying B47s, or whatever they are, you get a different answer, or you may get a different answer.

MR BENNETT: Yes. And, at the end of the day, one has to say, we submit, that whether it is an inherent requirement depends on the considerations of reasonableness and degree.

McHUGH J: But reasonableness was the term used - "reasonable requirement" is the term used in the Canadian legislation. That seems to me to be a far wider exception than "inherent requirement". No doubt our Parliament had recourse to the international statutes, but it picked the narrower qualification of exception, subject to what you say about "job" and "the".

MR BENNETT: Your Honour, once one takes one of the requirements of the position as being an ability lawfully to fly 747s to foreign countries on Qantas routes, and one then says is a need to satisfy that in one, two, three or 20 countries an inherent requirement, the word "inherent" must involve a question of degree. It is not inherent that one be able to do one annual flight to Saudi Arabia. It is inherent that one be able to fly to 80 or 90 per cent of the places to which Qantas flies, where there is enormous inconvenience and practical difficulty in rostering you to fly to the very small number not in that category. Between those two, the line has to be drawn.

McHUGH J: Well, it may be said it is not an inherent requirement, it is just an inconvenient requirement.

MR BENNETT: Well, your Honour, we submit that the word "inherent" necessarily involves that sort of consideration, and that it would narrow the - - -

KIRBY J: Your argument, as I understand it, is that if you are looking at the inherent requirement it can be an "international pilot, B747", but in Captain Christie's case it was "international pilot, B747, in the Qantas network", and that the additional element, whether it is a good or a bad thing, was what he was serving before this problem arose and that, in a sense, the definition is defining what is the inherent position of his position - inherent requirement of his position.

MR BENNETT: Yes, your Honour.

McHUGH J: Well, you would be able to drive a cart and horse through this statute on that basis. Qantas, or other companies, would soon arrange their operation so that they fly here, there, et cetera.

MR BENNETT: Your Honour, it is hardly likely that Qantas would arrange its operations only to fly to countries where you have to be under 60 so as to dispose of 60-year-old pilots. That is a fairly unlikely course of activity, one might think. And, of course, your Honour is assuming a desire to discriminate and, in that situation, it would cease to be an inherent requirement, in the same way as the Captain's cap. It may be a lawful requirement of employment that a person wear a particular cap, but that is not an inherent requirement, even if the employer chooses to make it so, because it is something which is not reasonably necessary to the efficient operation of the position.

Suppose one had the situation which I put at the beginning of being able to fly to no countries and assume an airline that has no internal flights, is one going to say you could still employ him on the simulator as an instructor there; you could employ him doing administrative jobs. Surely a point must come where one says he is employed in a particular position; if he can only perform one-tenth of what is required of him, or some small fraction of it, then there is an inherent requirement. It is one the employer has selected which is not unreasonable having regard to the purposes of this legislation. That necessarily gets you into questions of degree.

McHUGH J: You have to approach this statute from the basis that it is one of the few modern areas these days where rights trump costs. So, it might cost the employer money but here rights are to be preferred.

MR BENNETT: Your Honour, it depends. We would rather submit on the true meaning of the words "inherent requirement of the position" and the extent to which those are intended to import some requirements of reasonableness. The most inherent requirement of all of being a pilot is having a bit of paper from the country you are at saying you are allowed to fly.

BRENNAN CJ: Can I take you back again to the words in that exception and what I put to you earlier. The first thing about them is that "requirements of the particular position" must at least be able to encompass requirements which are stipulated by the employer. That is your first proposition.

MR BENNETT: Yes, your Honour, it starts with that.

BRENNAN CJ: Now, the employer may, of course, adopt requirements which are discriminatory in an offensive sense, and in that case it would not be an inherent requirement of that position. Do you equate "inherent requirement" with a reasonably inherent requirement - that is, a requirement which is stipulated by the employer reasonably having regard to the purposes for which the employment is engaged in?

MR BENNETT: Yes, your Honour.

BRENNAN CJ: Is that the limitation?

MR BENNETT: Yes, your Honour. Perhaps I can illustrate that more clearly with an even stronger example. Suppose an example often cited in discrimination legislation, suppose one wants to employ an actor to play Hamlet in a serious Shakespearian production, and that is the one position which is available, and the employment is to be for that one play only in that role. Clearly, it would be an inherent requirement of that position that the person be male.

McHUGH J: Not at all.

GAUDRON J: No, no.

McHUGH J: That is an historic myth.

BRENNAN CJ: You had better take another example, I think, Mr Bennett.

GAUDRON J: Try Ophelia, the other way around.

MR BENNETT: I do not mind making it Ophelia the other way around, but the reason I took that example - of course, there have been women who have played Hamlet in particular productions, of course they have - but, the point is that if a producer uses a woman to play Hamlet, that producer is making a particular dramatic point which a particular producer may choose not to make. It is clearly possible for the woman to play Hamlet, and indeed women have played Hamlet on a number of occasions - I am not sure how many men have played Ophelia, maybe in school plays - but the point is, the word "inherent" there necessarily involves saying, "Look at the reasonableness of the decision that producer is making in the light of the particular position he is filling, or she is filling, which is Hamlet in a particular production with a particular philosophy or message that the producer is trying to get across.

For that reason it is an inherent requirement when chosen but ultimately the court is going to have to analyse the reasonableness of it when it looks at the word "inherent" or even looks at the defining of the position. One could not define the position in this case as someone who wears a Qantas cap and does not wear a turban. Defining the position in that way would not cause one to avoid these words because the words necessarily involve that element of reasonableness and we would submit that is what is necessarily picked up by "inherent". "Inherent" simply means it is not something which is extraneous to the employment like wearing a turban.

GAUDRON J: I could well understand that argument if one were to interpret subsection (2) in what one might call a general discriminatory context, but it applies to subsection (a), (b), (c) and so forth and it may just be a drafting overkill.

MR BENNETT: Well, your Honour, take temporary absence from work. If the temporary absence is going to be for two weeks and the job is one for which the person is only engaged for two weeks, being a special task job, clearly the exclusion would be justified on the inherent requirements of the position. One can apply it to all of them and then one might have the test, "What if it was two weeks of four? What if it was two weeks of eight?", and there would be a question of degree to be determined.

McHUGH J: I am sorry, I am just not following this. Subsection (2) only applies to paragraph (f), does it not?

MR BENNETT: I am sorry, yes.

GAUDRON J: Yes, it does, I am sorry.

MR BENNETT: Yes, your Honour is correct, but within all the different categories of paragraph (f) one would still have a huge range of situations and we are all familiar with the standard controversies which arise under of this section in relation to each of these examples.

GUMMOW J: Does anything come out of the fact that subsection (2) only does refer to (1)(f), not (1)(a) to (e) or (g)?

MR BENNETT: I suppose because each of the others really is in a different category. (b), for example, is a case where the only subjectivity is likely to be in relation to causation. In (a) the subjectivity arises out of the word "temporary". It may be that in each of those one can find some reason why one does not need the inherent requirements. Certainly it is the sort of exclusion which would normally be related to the matters referred to in (f).

GAUDRON J: It is fairly clear, I think, is it not, although one has to go back to other provisions of the Act to make it clear, that 170DF(1)(f) is enacted in the context of various international conventions directed to the elimination of discrimination in employment on a number of grounds? So that one is dealing specifically with discrimination which has a particular connotation which allows distinctions to be made if they are reasonable distinctions or reasonably required in the circumstances. That can be taken into account, I dare say, in ascribing a meaning to "inherent requirements".

MR BENNETT: Yes. Your Honour, I am not aware of any anti- discrimination legislation, national or international, which does not have some such qualification or exception or provision as subsection (2). In one sense it is an inherent requirement of that sort of provision. What your Honour put to me is picked up by section 170CA(2) which picks up the reference to the international conventions. Those are my submissions on the first aspect of the case.

McHUGH J: Could I just ask you about, say, family responsibilities and how it works out in terms of "inherent requirement". Supposing the positions in a firm required at least 80 per cent of the staff to be there during a 24-hour period - perhaps the security of this security office.

KIRBY J: Of bank employees.

McHUGH J: But somebody wants to be away because of family responsibilities; got to be away for a period during the day. Would you then say that it is an inherent requirement of the position that the person has to be there for whatever the relevant period of time is - eight hours?

MR BENNETT: On the example your Honour puts to me, probably not, but one could think of an example where it would be. The easiest example is to short-term employment where one wants someone for two weeks to do a single job which is going to take two weeks and one has a person who has family responsibilities which will take that person away for the bulk of that two weeks.

McHUGH J: But the hypothesis is that the person is already employed and then you want to seek to terminate that person's employment.

MR BENNETT: One discovers on day two of the fourteen days of the person's employment that there is this problem which one did not know about; that accommodates that. The example your Honour puts to me is one which would probably go on the other side of the line where one would say, "Well, a bank has to employ sufficient staff to be able to accommodate family responsibilities, and the needs of people to have a large number of people there should be accommodated by employing more people".

That would be one where one would almost certainly come down on the other side of the line, but in either case one has to have that subjectivity, otherwise one would have the ridiculous case of the type I just put where, on the second day of the two weeks, the person says, "I have family responsibilities which will take me away fro the next two weeks or the remaining 13 days", and that is all the person is employed for and it is a job that has to be done in that time. Clearly there it is an inherent requirement of that particular job that the person be able to be there during that period and that person, because of family responsibilities, is unable to do so.

McHUGH J: But let us assume it is a small company and it has got one truck and it employs a female driver and she is pregnant and she is dismissed on the ground of pregnancy. Do you say the fact that there is only one truck and it has got to be driven eight hours a day is an inherent requirement of the particular position?

MR BENNETT: Probably not, your Honour, in that example, but one would carry out the reasonableness and balancing exercise. One would say what absences will the pregnancy cause, to what extent does it have to be driven, how long is she employed for in proportion to the pregnancy. There would be a string of questions one would ask and ultimately one would perform that balancing test. On the example your Honour puts to me it would probably come down in favour of the employee.

KIRBY J: Reasonableness seems ever so reasonable when you put it to us, but the fact is that the Australian Parliament, which had models before it which referred to reasonableness, chose instead this test which looks at the inherent requirements of the position and it seems to be a much narrower concept.

MR BENNETT: But, your Honour, I have no difficulty in saying it is not an inherent requirement of this position that one be able to fly to every country in the world. It certainly is an inherent requirement to the position that one would be able to fly to at least a reasonable number of countries in the world. Now, whether one says one gets there by applying a rule of reasonableness or whether one says one is simply applying the word "inherent" to the situation and that is how one does it, it does not matter a great deal. Either way one gets to the same result, which is that somewhere between 198 countries or whatever the current total is and one country one draws a line.

GUMMOW J: The point is really that the nature of this company's business is that if it is to carry on international trade it can only carry on international trade by complying with the laws of a large number of other countries.

MR BENNETT: Precisely, your Honour, and we respectfully submit that is an inherent requirement, although it might not be if it was one country only like Saudi Arabia to which there is one flight a year.

McHUGH J: Or four?

MR BENNETT: One draws a line, your Honour.

McHUGH J: Yes, you want to draw lines. It does not seem to me to have anything to do with inherence.

MR BENNETT: Well, the phrase used by Justice Wilcox was "applying the test in a practical, common sense way," and that may be better phrase than "reasonable", if the word "reasonable" is seen as an inappropriate word.

McHUGH J: The statute says "inherent".

MR BENNETT: Yes, your Honour, and it is inherent. It is inherent that he be able to fly to a number of countries. The only reason for the subjectivity, the only reason for the word "reasonable", is that one has to work out how many countries that is in proportion to Qantas' actual timetable. As I say, it may be that the word "reasonable" is not the word one uses; it may be that one talks about "practical, common sense way" of saying whether it is inherent at four, at eight, at 28, or whatever.

KIRBY J: Well, I keep looking at the statute and cannot see the word "reasonable". I can see the word "inherent" which is, I think, a problem for you. But I can also see the word "position", which I think is your strength, because it is a question of what one defines as "the position".

McHUGH J: "The particular position", that is your strength. That is the strength of your argument.

MR BENNETT: Well, "the particular position" is flying to a number of countries within a roster system, which is not an idiosyncratic system devised by this employer but the only way to do it.

McHUGH J: So, it is all about characterisation, as you said when you opened the appeal.

MR BENNETT: Yes, your Honour.

KIRBY J: Not about reasonableness.

MR BENNETT: At the end of the day, it is a question of levels of generality. One can reach the same result either by using the word "reasonable", or by simply saying "inherent" does involve some number, in this case between 1 and 198, and what that number is may be defined by the word "inherent". But it is not zero, and it is not 198. One can do that without using the word "reasonable" if one finds that the appropriate way of reaching the result.

McHUGH J: I know, but as I said to you earlier, it is easy enough for airlines or other employers to get around it, not by not flying to places, but simply by employing pilots to fly to certain countries. Supposing this pilot flew only to one of the countries with the 60 age limit, well, you may well have a strong case if that was his job.

MR BENNETT: Well, there is no question in this case that he flew to all the other countries that he can no longer fly to. That is one thing that is clear in this case. It is he who needs to impose the change on us. I should say, your Honour, as I finish with this first section of the case, that my learned friend has a notice of contention in relation to it which, in effect, challenges the decisions of Justice Wilcox on the facts and says that when one looks at what were called the "spider graphs" and the other things in the papers, really it was reasonable to do it.

That was raised as a ground of appeal by my learned friend to the Full Court. It was argued in the Full Court. The Full Court did not deal with it because the majority decided the case on a shorter basis that did not require it to go into those questions. That being so, we are agreed that if the appeal is allowed on the grounds I have been arguing thus far, it is appropriate for it to go back for the issues raised by the notice of contention to be dealt with by the Full Federal Court.

I have prepared a document for your Honours called Index to Issues, which sets out the way the various notices of contention fit into the various issues in the case. I hand up seven copies of that. Your Honours see paragraphs 1 to 5 deal with what I have just been putting. Paragraphs 6 to 8, your Honours need not go to at the moment, they deal with the issues I am coming to. Those are my submissions on the first issue. The second issue - I see, your Honours, it is 16 minutes to, and I am going on to the second half of my submissions. Do your Honours wish me to continue?

BRENNAN CJ: How are we going for time, Mr Bennett?

MR BENNETT: I would think, your Honour, something under half an hour on the second issue.

BRENNAN CJ: Mr Jackson?

MR JACKSON: Your Honours, I will be an hour at least, I should think; not an hour and a half, I would not think.

BRENNAN CJ: A quarter past two we will adjourn to.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: Your Honours, the starting point on the second aspect of the case, appropriately enough, is the last paragraph of our submissions, paragraph 56. Your Honours will recall that 170DF(1) provides that an employer must not terminate an employee's employment, for one of the following reasons, so the prohibition is on termination. This Court considered the meaning of that section in Victoria v The Commonwealth, (1995) 70 ALJR 680, and the relevant passage is at page 709, where five members of the Court - indeed, the same members of the Court who comprise the present Bench - said this, at the bottom of the first column of that page:

There is nothing in the Act to suggest that the words "[a]n employer must not terminate an employee's employment" are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired.

And that is then put another way. So I start with the proposition that if I can demonstrate an expiry rather than a dismissal - although those two do not cover the whole field - that is the end of the matter.

Now, the facts in this case are not in dispute and they are conveniently set out on page 11 of our submissions and may I just very briefly - and I will only take a minute or so to do this - just show your Honours the significant aspect of the history which we say leads to an expiry and not a termination. Mr Christie commenced his employment in 1964. He executed a letter of employment which said among other things that the conditions "are to be read in conjunction with and are supplementary to the terms of any enactment industrial agreement or award". So one starts off with an express incorporation of any relevant enactment, industrial agreement or award.

GAUDRON J: That is, however, somewhat different from employment for a limited or specified terms.

MR BENNETT: Yes, on its own it is. One then has to look and see what they say. The next matter is, if your Honours go to page 304 of volume two, the staff superannuation plan at line 15 refers to the normal retirement date as being "1 July following your 55th birthday". The evidence about this was in the same volume at pages 247 to 8 in the evidence of Captain Heiniger and in paragraph 3 on that page, 247, he says:

I can recall no occasion on which a pilot has continued to fly Qantas aircraft beyond the age of 55 without taking up the options required by the agreements referred to in paragraph 1 -

and I will come to those options in a moment. The next step is that in 1974 there was a collective agreement which referred to a right to make a series of elections. These are annual elections. The document is set out on page 249 and your Honours see that provides at line 23:

It is agreed between the Company and the Australian Federation of Air Pilots that as and from the first day of July 1974 that notwithstanding any agreement, Company custom or practice to the contrary, the following provisions shall apply to an offer and acceptance of the extension of a pilot's employment beyond the "normal date of retirement" (Designated as 1st July following his 55th birthday):

and then there is the provisions for an election:

on a year by year basis up to but not beyond the date of his fifty- eight - - -

GAUDRON J: What is the legal effect of that? It was not registered, was it?

MR BENNETT: Yes, your Honour.

GAUDRON J: It was registered?

MR BENNETT: Yes, in 1989.

GAUDRON J: In 1989.

MR BENNETT: Yes.

GAUDRON J: How does that operate in this case?

MR BENNETT: It operates to become a term of the contract, both by force of the Industrial Relations Act as it then stood, and by virtue of the initial agreement.

BRENNAN CJ: In practice, did this agreement govern the relationship between Qantas and its pilots?

MR BENNETT: Yes, your Honour.

BRENNAN CJ: There is evidence of that?

MR BENNETT: Yes, and in this case there is evidence that this particular respondent made letters of application pursuant to this up to his 58th birthday and as your Honour will see, on the extension, up to his 60th and I will come to that.

In paragraph 35 of our submissions that agreement was renewed in 1977. In 1981 there was a new agreement in the same terms with the new union. In 1989 the Industrial Relations Commission certified the agreement of which this was part. These findings are non-controversial as I understand it. In 1991 there was a new collective agreement by which, perhaps additional rather than new, it supplement the old one in at least this respect, that there was the right to make two more annual elections up to but not beyond the 60th birthday. Pursuant to each of these the respondent made elections and they are set out in various places in the appeal book. If your Honours go to the chronology on page 17 your Honours will see they are all listed. They are all set out at pages 220 and following. The first one is:

I wish to inform you that it is my intention to extend my period of service with Qantas beyond my 55th birthday.

Someone has scribbled what they think the effect is. The next document I cannot read but it does not matter very much. The next one is:

Thank you for you letter.....wherein you have elected to extend your employment to your 56th birthday -

The next is:

Do you wish to extend to your 57th birthday, if so, could you please complete and return attached form to this office.

That is attached and returned:

by advice of this letter, I elect to extend my employment to.....my 57th birthday.

Et cetera. Then there is a notation of that and then we get it is acknowledged, then we go through to the 58th and so on up to the 60th - standard form documents. That is the history of what occurred. The 60th birthday was 21 September 1994.

KIRBY J: Has the international age always been 60 or was it 55 at a certain point and went up to 60?

MR BENNETT: I think the latter, your Honour, but I am not certain. Yes, my learned junior says that is correct. There are also two dates your Honours may wish to add to the chronology on page 18. Unfortunately, they are both in the one space, so they are a little hard to squeeze in. But between the 1992 and 1994 dates there are two dates to be added. On 1 January 1993 the amendments to the State Anti-Discrimination Act came into force and on 30 March 1994 the amendments to the Industrial Relations Act came into force. The important thing is that they both occurred after the last election but before the 60th birthday.

Now, I am on paragraph 40 of my submissions. Justice Wilcox found against us and he said the contract had no fixed term, it was terminable only upon notice and, therefore, what we did was to terminate. We submit that is wrong for two reasons. The first is that the agreement was certified, and that had the effect under the Act of making it a binding agreement and, in any event, even if it did not, a reference in the initial letter to industrial agreements was sufficient to bring it in. So, on either basis, at least from 1974, leaving aside whether there was a custom about 55 before that - that may not matter very much - at least from 1974 there was a provision that it terminated at 55, subject to three annual extensions to 58. That, as I say, became a binding award. Then in 1989 there was an agreement which was not certified which permitted it to be extended by a further two years.

GAUDRON J: or 1991?

MR BENNETT: 1991, I am sorry. Your Honour is correct. 1989 was the certification.

GAUDRON J: And the 1991 one was not certified - had not been certified?

MR BENNETT: Yes, that is so, your Honour. Justice Wilcox does not seem to have taken into account or referred to the letter of appointment, nor the effect of the certification.

GUMMOW J: What is the effect, Mr Bennett, of the letter at page 234, the second sentence, "In so doing I accept that"?

MR BENNETT: That was dealing with a contingency which did not arise, which was his desire to terminate before then.

GUMMOW J: To terminate with effect before his 60th birthday but after this notice?

MR BENNETT: Yes. There was another letter of agreement I do not think we have troubled your Honours with which permitted people to withdraw their elections if they chose and retire earlier. That was the effect of it.

GUMMOW J: Thank you.

MR BENNETT: Justice Spender agreed with our submissions. Justice Gray - this is paragraph 46 - took the view that this constituted a termination, that doing what we did constituted a termination even if we were correct in our characterisation of what occurred. His Honour's reasoning, we would submit, is simply inconsistent with Victoria v The Commonwealth.

GAUDRON J: I am not too sure about that. There is quite a difference between a contract for a term and a contract of employment under which the retirement age is specified at a certain date. I mean, it would be hard to say that Mr Christie was employed under contract either until he was 55 or until he was 60. All sorts of things might have happened in the meantime. It was a term of the contract of employment rather than employment for a term, I should have thought.

MR BENNETT: Your Honour, we would submit, with respect, that is for this purpose a distinction without a difference. We would submit that if it is a term of the contract that it will end at a particular date, it is not a term in the sense that it requires one party to do something or not do something. It simply is a term defining what will occur to the relationship on that date. As such, we would submit it is indistinguishable from a contract for a term. It might be different if it said, "The employee shall resign on his 60th birthday" or "The employer shall dismiss him on his 60th birthday" but, if it merely says, "The employment shall come to an end then." We would submit that is the same as employment for a term.

The mere fact that they may not have been a term initially, the evidence seems to suggest a customary term of 55 initially, but whether or not that was so does not matter very much because, whatever happened, it was superseded, and of course finally the terms of the elections themselves made it clear that he accepted this situation. He said, "I want to extend my employment until my 60th birthday. But for the election the employment would come to an end on the due date.

So he nominates, with our agreement, in accordance with prior arrangements, "My employment will come to an end on that date." So we would submit that the approach taken by Justice Gray is inconsistent with Victoria v The Commonwealth. The approach taken by Justice Marshall was the same as Justice Wilcox.

In paragraphs 48 and following there is a lot of detail in relation to the cases where agreements have been expressly incorporated. I do not want to spend a lot of time on this. Obviously, every case is different. What the cases do say is that one can, and frequently does, have terms agreed between unions and management incorporated by implication in individual contracts. Either way it is agreed in advance to that effect, as here, or where the employee takes advantage of and acts in accordance with some specific boon given by a particular negotiation or agreement, or for any one of a number of other ways.

These cases are simply examples of that sort of it. The best cases on it, for present purposes, are probably National Coal Board v Galley - your Honours need not go to them now - which is the second of the cases referred to in paragraph 49; the relevant page is page 23. The other is the last case referred to in paragraph 50, Scally's Case, at page 304E, where what is said is:

But in the modern world it is increasingly common for individuals to enter into contracts, particularly contracts of employment, on complex terms which have been settled in the course of negotiations between representative bodies or organisation and many details of which the individual employee cannot be expected to know -

et cetera. These cases all deal with that sort of concept. Your Honours might delete Edwards v Skyways, which does not help at all, from the other cases referred to in paragraph 50. The next paragraph, paragraph 51, deals with a slightly different point, and your Honours might delete the first case, The Ford Motor Company Case. The most useful case is Alexander's Case, but again I will not take your Honours to it. What these cases lay down is that there is a distinction in industrial negotiation between those terms which affect the union as a whole, for example, those that set up procedures for the resolution of disputes on a global basis, and the provisions which affect individual employees like conditions of retirement, retrenchment, salaries and the like, and that the second type of provision will generally be easily regarded as incorporated into a contract while the first will not. That is really the point the Courts make there. Byrne v Australian Airlines is distinguishable on that basis. It is an example of the more general type of agreement rather than the specific ones.

So, your Honours, we also submit that in this case one could, were it necessary, get to the same result by the doctrine of conventional estoppel. If one looks at the terms of the documents it is clear that he took advantage of the election procedures laid down. We could have, prior to this legislation, of course, dismissed on attaining one of the other ages or required the contract to come to an end but for those elections. He has obtained the advantage of extension by those elections. He ought not now to be permitted to say, "Really, the elections don't matter, the point is that I was there anyway, and they weren't the basis on which my employment was continued." We would submit that the cases fall squarely within Waltons and Thompson v Palmer and the other cases on conventional estoppel.

Those then are our submissions on the second part of the case. May I before sitting down just take your Honours briefly to the additional document I handed up this morning dealing with the issues because there is one problem to which I should alert your Honours. Your Honours will see the original notice of contention is at page 869 in volume four. It is the second last page in volume four. All these grounds of contention only arise if we succeed on the aspects of the appeal I have been addressing your Honours about this afternoon. The first one involves an analysis of section 49ZV of the Anti-Discrimination Act 1977 of New South Wales. That is a slightly wider version of section 170DE. It is wider in that it applies not just to termination but to four other things. Do your Honours have that Act?

GAUDRON J: Yes. Before you go to that, when we talk about this certified agreement, it was certified under the Industrial Relations Act, the federal Act?

MR BENNETT: Yes, your Honour. Yes, section 115 as it then stood.

GAUDRON J: So is there not a 109 problem?

MR BENNETT: I am coming to that, your Honour, and no 78B notices, I have to confess, but let me explain to your Honours how it arises. I am not arguing this at the moment. I am simply showing your Honours what the problem is. Your Honours will see that section 49ZV prohibits four types of conduct and is wider than the simple verb "terminate" which was construed in Victoria v The Commonwealth. It is unlawful:

(a) to retire an employee from employment -

which is at the very least ungrammatical -

(b) to require an employee to retire from employment -

whatever that means -

(c) to threaten to retire an employee from employment; or

(d) to engage in conduct with a view to causing an employee to retire -

We have an argument which we are able to make this afternoon in reply which says as a matter of construction that does not apply to anything we have done and I will not deal with that now, but we also will need to say that there is a 109 problem in relation to this section when read with section 170DE. Now, unfortunately I did not realise that until I saw my learned friend's submissions on Friday when they arrived. We should have appreciated it from the notice of contention, but we did not think it through at that time. That is unfortunate.

What we ask is this, that if this point becomes decisive or becomes relevant to the ultimate decision, which will depend really on whether my appeal on the second ground would otherwise be allowed and whether my arguments on the construction of this section fail, it is only if both those occur that the argument becomes relevant. Then the choice is either to remit that issue or to set down a further date at which there is an hour or two to argue it. I apologise that that has become necessary but, as I say, it may not arise depending on your Honours' decision and other aspects of the case.

The second part of my friend's notice of contention, paragraph 2, is something which again I will deal with in reply, but it relates to section 170HA, which in effect says that the anti-discrimination provisions in the federal Act prevail over any award. There are timing issues in relation to that. We are not, of course, relying on the award as a primary submission in relation to the second part of our argument. The relevance of the award is it shows how the grounds first came into it and shows how we would have been entitled, in the absence of elections, to treat the employment as terminated prior to 1994.

It is not so much relevant to what actually happened in 1994, but again that will be a short matter which I will have to deal with in reply. I should say to your Honours that the section 49ZV matter, although it was referred to in the course of argument very briefly, was not decided by any of the judges in the courts below.

McHUGH J: Is section 49ZYV also involved in the issue?

MR BENNETT: No, your Honour, because that is not involved in the way we put - that might have been involved in the part of the case we lost on at the trial but it is not involved in this part of the case.

McHUGH J: Yes.

MR BENNETT: It is dealing with a different problem, of course, in any event.

McHUGH J: Yes.

BRENNAN CJ: Why does the New South Wales law apply?

MR BENNETT: There may well be an issue about that, your Honour. That was referred to below - I am not totally certain of that but it seems to have been argued on the basis, certainly by the respondent, that New South Wales law would apply. Qantas is now domicile in Victoria - most of the flights are overseas flights. Mr Christie was based in Sydney and his contract was, in fact, signed, I think, while he was in England before he came to Australia, but certainly his employment was treated as being based in Sydney and it may well be that it applies for that reason. Again, that issue was simply never argued except for a very short reference in the transcript which appears in the appeal book in the course of my learned friend's argument where one of the judges raised that issue with him, and there is about half a page of discussion of it and then no-one else seems to have referred to it. It is one of those issues that may have to be determined.

GUMMOW J: There may be other State Acts for all I know.

MR BENNETT: There may well be, your Honour.

GUMMOW J: Why pick on this one?

MR BENNETT: I did not pick on it, your Honour. Those are the problems which will arise on notice of contention later this afternoon. May it please the Court. I see it is exactly quarter to three.

KIRBY J: Could I just extend it by a moment? I asked you this morning about cases in North America about pilot retirement. Are they conveniently available to us or not?

MR BENNETT: Yes, there is one which we have referred to in our submissions which is in fact an airlines case. I am sorry, it is in the respondent's submission, that is the Western Airlines Case. The problem in the United States is that, like Canada, it has a different phrase which is being construed and ultimately one is dealing with that phrase rather than this phrase.

KIRBY J: Yes, but the fundamental concepts are not dissimilar. I realise that the phrase is governing but - - -

MR BENNETT: We are not aware of any case in the United States which involves this issue of a person employed to do things internationally where a significant number of countries prevent him or her doing it because of sex, age or a criterion like that. The American cases are concerned with the Allman issue of whether at 60 you are too old to fly a plane, which is the issue we failed on, and as to which there is no appeal. In that sense they are ultimately concerned with reasonableness under the American test in relation to that sort of question, so they are not, we would submit, of great assistance in the present case.

KIRBY J: I thought I heard you saying earlier that reasonableness was the test in the Australian statute.

MR BENNETT: Yes, but they are not considering reasonableness in the context of this sort of problem. I put the test in an alternative way which does not involve the word "reasonableness", as your Honours will recall, based on the word "inherent"- - -

KIRBY J: But there is no case that you are aware of where a local or municipal discrimination statute has descended on an international carrier to oblige it to keep pilots beyond the age of 60 which is the international standard for international routes.

MR BENNETT: That is correct, your Honour. May it please the Court.

McHUGH J: Mr Bennett, just a minute, before you sit down. Have you read Cooper v The Canada Human Rights Commission, a case which concerned airline pilots about age 60? But I think it has gone off on technical grounds.

MR BENNETT: I have not, your Honour.

KIRBY J: It was the Supreme Court of Canada, and it went off on the issue, I think, of whether there was a legal point in the tribunal below, and whether that was susceptible to appeal.

MR BENNETT: Yes.

KIRBY J: There are some comments in the dissenting opinions of Justice McLachlin, in which Justice L'Heureux-Dube concurred, of a general character, but the point in the case I think was different.

MR BENNETT: Yes. Really, cases which deal with that question are not really of help in dealing with the present problem. The problem here is a very specific one in relation to international prohibitions and the extent to which the employment is rendered inconsistent with those prohibitions, and that is a unique question. That is the real question here. If your Honours please.

BRENNAN CJ: Thank you, Mr Bennett. Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the question whether there was a termination by the employer by reason of age, and then go on to the question of the operation of section 170DF(2). Turning to the first of those questions - was there such a termination by reason of age - your Honours, our submission, if I can say first of all, is that it is clear that the employer's policy was that it would not continue to employ pilots of a certain age. The age was to be found in a band of six alternatives or possibilities, and the employee might choose which. But each of those possibilities was based on age.

Your Honours can see that by looking at two of the documents to which reference already has been made. Your Honours, the first of them is the letter of agreement dated 17 December 1981. That is the one which was part of the certified agreement, and you will see it - I do not know if your Honours have a book that shows the certified agreement. It is at page 122. Your Honours, there was some doubt about whether all the documents in this had or had not been certified, or just been bound together, but this document at 122 we accept was certified.

Now, what your Honours will see is that that document on page 122, about point 3 or 4 on the page, is the letter of agreement bearing a date, on page 124, 17 December 1981. Your Honours will see in the second paragraph of text of the letter that it sets out an agreement that:

the following provisions shall apply to an offer and acceptance of the extension of a pilot's employment beyond -

what it describes as -

the "normal date of retirement"-

which is, of course:

1 July following his 55th birthday).

The agreement itself to which this letter of agreement relates does not refer at all to there being an age for retirement, although it makes provision for there to be termination of employment on notice and for cause. But it makes no provision for an age for retirement. What your Honours will see from this document at page 122 is that what it reflects, I suppose, is the understanding that there is a normal date for retirement, which is fixed by reference to age rather than fixed by reference to length of service or any other matter other than age.

Your Honours, the way in which the time is fixed is by reference to the occurrence of the pilot's 55th birthday and, once the pilot has attained that age, the employer will, from the next 1 July, of course cease to provide the pilot with work, will cease to pay the pilot, and will cease to treat any element of a continuing employer/employee relationship as subsisting because of the fact of retirement. The pilot might be willing to keep working after the normal date of retirement, but will not be able to do so. Now, your Honours, it is true, one may assume, that the terms providing for the normal date of retirement are conditions of employment, but by enforcing the condition of employment, the employer, in our submission, does terminate the employment.

McHUGH J: But why does the employer enforce it? It just simply comes to an end, does it not, the same as a contract comes to an end?

MR JACKSON: Well, your Honour, certainly it comes to an end. One has two parties of course: one employer, one employee. A date comes but, if the employee wishes to continue working and there is no reason for him to stop working other than the fact of retirement, then in those circumstances, in our submission, for the employer to say, "At this point you are to stop working", whilst it is certainly to enforce one of the terms of the agreement, what it does do, in our submission, is that the employer has terminated the relationship between them because of the age of the pilot.

McHUGH J: But surely the employment is terminated by the expiry of time. The time has expired; there is no employment. The employee has to get a new contract.

MR JACKSON: Your Honour, that is true in one sense but only in the sense, in our submission, that what you have then is a situation where the employee and employer's agreement has come to an end because of, in one sense, the effluxion of time, but the relevant time which has come to an end is a time fixed by reference to age.

BRENNAN CJ: Mr Jackson, if on 2 July following 55th birthday a pilot who had given no notice of election went into his solicitor's office and said, "Please advise me whether I am employed or not by Qantas", what answer would he get?

MR JACKSON: The answer would be twofold, your Honour. The answer would be: "Your employment has been terminated but" - and I am assuming what section 170 - - -

BRENNAN CJ: "Been terminated by"? You have used a passive term.

MR JACKSON: To use the most neutral term, "has come to an end". What he would also say is, "It's come to an end because, although you wish to keep going in similar employment, the employer does not wish you to".

BRENNAN CJ: So that, although you wish to and may offer to, he may not accept your offer?

MR JACKSON: I am sorry, I did not quite pick up the sense in which your Honour said "he may not".

BRENNAN CJ: If the advice is, "Well, you're no longer employed but, if you wish to, the employer doesn't wish you to", that is speaking in terms of a new contract, is it not?

MR JACKSON: Well, your Honour, it may in the end be. I really finished half what I was going to say before. The first half was that, were it not for the intervention of provisions such as the retirement provisions of State Acts and the provision of section 170DG, there one would be. There would be no ability to require the employer to continue in employment or for there to be any other form of relief. That is why, if someone at the age of 55 went to a solicitor and said "I wanted to continue as a pilot with Qantas but Qantas said I could not because I have reached the age of retirement", then, in our submission, that is a concept falling adequately within the concept of termination by reason of age, because the employer says, "I will not continue you in employment because you have reached a particular age".

McHUGH J: I think your argument tends to use the word "terminate" in some very loose popular sense; certainly not in any legal sense.

MR JACKSON: Your Honour, one has to bear in mind that in dealing with section 170DG, what one is speaking about is an expression "termination" which has to be construed by reference to a very large number of circumstances.

McHUGH J: I understand that and it is a point in your favour if that is the way you look at it but, if somebody has a lease with an option of a further year and they exercise the option and the year passes, you hardly say that the landlord has terminated the lease at the end of it. There is no lease; the lease has just expired.

KIRBY J: I think you would have to say, picking up what Justice McHugh said, that in the context of age discrimination, unless you adopt what has been described as a loose meaning of terminate, then you will never get an affirmative termination, it will simply be that the contract will run out and that will undo the ban on age discrimination. In this context, it has to mean something different than the affirmative act that normally would be involved in termination.

MR JACKSON: Your Honour, what I am seeking - I am going to come to that, your Honour. That is really the next thing I want to say, in a sense. I just wanted to say before that though, that it is not really right, in our submission, to treat the issue as purely being one of election to go on for another year and another year. What one does have is a situation where, in our submission - and this is manifest from the documents, and I would like to go them very briefly - what is manifest from the documents is that the employer had a policy that it would not continue in employment any person beyond a certain age.

There was an element of choice as to what to the age might be, within the band of 55 to 60, but once one got into that band it came to an end, apart from 1 July for 55, on a particular birthday, by reason of age. Your Honours, that is the first thing about it. We would seek to go from there to say that by insisting that that situation not change, what one does have is a termination in the sense of bringing the relationship to an end brought about by age, by reason of age. When one comes to situations - and the normal situation or the most common situation to which provisions like section 170DG(1)(f), in its reference to age, the most common situation to which it will apply will be retirement.

BRENNAN CJ: Mr Jackson, what has DG got to do with it?

MR JACKSON: I am sorry, your Honour, DF, I should have said, your Honour. I am sorry to wander from that.

McHUGH J: Having regard to other provisions in subsection (1), it does appear as if "terminate" is used, in its legal sense, if an employer purported to terminate an employee's employment by reason of temporary absence from work, and that was not within the terms of the contract, there would be no termination, would there?

MR JACKSON: What your Honour says is right if one gives the term "terminate" a relatively narrow meaning. One has to bear in mind, your Honours, there is a slight complication in the case of employment, under the general law, by reason of the inability, in the ordinary case, at least, to obtain specific performance of the obligation to re-employ, as complicated, of course, by the various industrial legislation - - -

McHUGH J: It might also be complicated by another factor, that an employer might lawfully terminate the contract on one of the grounds in (a) to (e) by, for example, giving a week's notice, but the reason for the week's notice might be the temporary absence from work or something of that nature, which tends to indicate it is looking at it in a broader sense. It is not looking at it in terms of breach of contract or perhaps even expiration of contract, it is looking at it and trying to find out what is the real reason for the end of the employment.

MR JACKSON: Yes, your Honour. In our submission, the term is one where one is really looking at a question of substance. The very nature of the provision suggests that it is looking at a situation where the employment relationship has been brought to an end, at the instance, of course, of the employer, because the employer does not wish to continue it for a reason which falls within one of the proscribed reasons. Your Honours, what I was - - -

BRENNAN CJ: If is difficult, though, Mr Jackson, to give the word "terminate" any application to that which is already terminated.

MR JACKSON: I am sorry, your Honour?

BRENNAN CJ: It is difficult to terminate something which has been terminated.

MR JACKSON: The two can occur together, your Honour, and that is what happens in a case of retirement, in our submission, where one has a situation where there is a provision, for example, at the time when this Act comes into force which says you are to retire at age 60 or you retire at age 60. Age 60 comes, the Act is enforced and at that point, as happened here, the employee says, "The requirement that I cease to work at age 60 has gone because of section 170DF." The employer says, "I/we insist that you cease to work because you have reached the age of 60."

McHUGH J: Yes, but the prohibition is on an actor. The employer must not terminate and in the case of expiration the employer is entitled to say, "I have done nothing."

KIRBY J: But that would allow another group of camels to walk out of the statute because policies of compulsory retirement which the statute was obviously designed to strike at would simply not operate in that case because you would say, "Well, I haven't done anything. I haven't terminated. It's just your contract which terminated you," and that cannot be what the Act meant.

MR JACKSON: Your Honour, that is where, in our submission, Justice Gray was correct in the view which he expressed at page 830, if I could take your Honours to that for just a moment, in volume four and your Honours will see at the top of page 830 at line 5 where he said he was:

prepared to assume that the appellant came to be bound by his contract to retire when he attained the age of sixty. Prior to that event, however, he had informed the respondent that he did not wish to avail himself of that term -

and I will not read it out but your Honours will see through the remainder of that paragraph and at about line 15, your Honours, we would submit his Honour is right in saying that by enforcing the part of the contract which said that it came to an end on his 60th birthday there was then a termination of the employment.

McHUGH J: I do not understand this proposition as a legal proposition about enforcing a term of a contract. What is there to enforce? If Mr Christie turned up and demanded to be admitted or he had done something, you would get an injunction against him or might take some other action against him and you would say he has got no legal right to do anything. He would be the one that would be seeking to show what his legal right is.

MR JACKSON: Your Honour, the length of time for which the contract was in being was as much a part of the conditions of employment as any other part of it and in that regard if what is said when the time is coming to an end one then says, "I wish to continue in the same position," to use the expression of subsection (2), and the employer says, "No, you can't continue in that position because our policy is that we will not extend employment beyond the age of 60."

McHUGH J: I know, but the point I was putting to you was that the judge seems to assume somehow that the contract continues unless the employer in some way enforced the age condition, but it does not continue and the contract just simply comes to an end by its own terms.

MR JACKSON: Your Honour, the time for which that contract was to subsist comes to an end, certainly, but - - -

BRENNAN CJ: It is not only the time. It is the difference between an executory and a fully executed contract.

MR JACKSON: It may not be full executed, of course, there may be some aspects of it remaining to be - - -

BRENNAN CJ: There might be some pay still to be collected, but I mean, in relevant terms it is fully executed - discharged by fulfilment.

MR JACKSON: Your Honour, one can describe with terms of the greatest vigour, if I may say so with respect, but in the end it comes down to a situation whether the conduct of the employer in saying that, "I will not continue the employment for a period beyond that" is a termination by the employer of that employment. No doubt two views are open on the question, but in our submission, looking at the terms of section 170DF, the particular reference to the question of age, and bearing in mind that the most common situation, we would submit, for age to be a relevant matter is the situation where there is provision for retirement, then we would submit the view should be taken that the legislative intention was that retirement on the ground of age was to be something that was covered by it.

KIRBY J: Unless you adopt that construction, then the only provisions to which the statute would attach would be where an employer, having a person in employment changed their policy or suddenly introduced it, or decided, "Oh, you are too old, you can go", but the main problem which the discrimination on the ground of age is addressed to would not be addressed. That simply cannot be what the statute means. The main problem is compulsory retirement. It would be an absurdity if the statute did not apply to such a case.

MR JACKSON: Your Honour, that is our submission on it.

GAUDRON J: Different considerations might apply depending on whether a contract said, "Your employment shall come to an end on your 60th birthday" and what seems to be assumed here - that it was your client who would retire, who would do something to bring about his retirement. Assuming he does nothing, then it must be the employer who terminates. Except, of course, you have the difficulty for the one year renewals.

MR JACKSON: I was in the course of dealing with that when I entered into the discussion with your Honours about it a little. Could I just say also, leaving aside the mere questions of form if one were to have a two-year contract which happened to expire on a birthday, if that were done simply to avoid the provisions of section 170 that, in our submission, would be ineffective.

Your Honour, what I was going to say, if we just go back for one moment to the position, and I think I had your Honours at page 122 of the document which shows the provisions of the agreement - - -

GUMMOW J: Well, section 1(a) is expressed in terms of election by one party.

MR JACKSON: Yes, your Honour. What it is expressed to do, however, is to extend the employment beyond the normal retiring date by a year and, in our submission, that would mean that the normal retirement date as well as the employment is extended for a year. The point I would seek to make, your Honours, if I could - - -

GUMMOW J: But I do not know what normal means.

MR JACKSON: Normal is the 55 unless one chooses to extend the date. The date can be over-extended - - -

GUMMOW J: But at whose election? It seems to be crucial. What happens if the election is not exercised.

MR JACKSON: If the election is not exercised, that is the end of it. The employment, to use a neutral term, will come to an end. If the option is exercised then all that has happened is that the employee has elected to have the retirement date, a later one, in the band as to the possible six, but it is still retirement.

KIRBY J: And still by reference to an arbitrary date, the birthday.

MR JACKSON: By reference to age; a date which is age. The second document is one that your Honours can see in volume one. At page 217 between lines 15 and 20 one can see that the dates for further postponement are again on a year to year basis - that appears in 1(b). Then the maximum limit is the date of the 60th birthday in 1(a).

If I could just take your Honours to one further document. If one looks at page 242 in volume 1, the letter of 8 September 1994 to the respondent, what your Honours will see is that it is made apparent in that document that the appellant was insisting that the respondent's employment come to an end by reason of his age. That that is so appears at about line 25:

the Company's policy requires that pilots retire no later than upon reaching the age of 60 years.

The last paragraph:

The Agreement and the policy are still appropriate and remain operative. Accordingly, it is necessary that your retirement take effect as planned on 21st September, 1994.

BRENNAN CJ: Mr Jackson, if the employer and employee agree to a proposition that the employee wants to retire at the age of 65 and they enter into an agreement that he should retire his employment terminating on his 65th birthday and he recants that when he is aged 64. Do you say that when he is held to that agreement, that on the 65th birthday this section operates?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: I understand the submission but I must say that I find some difficulty with the notion that inactivity on the part of the employer for the purpose of producing any legal result can amount to a breach of section 170DF.

MR JACKSON: Your Honour, there inevitably would not be inactivity, because what would happen would be that the employee would seek to continue to work; the employer would be saying, "No, you can't". Even just to say that would be sufficient, in our submission.

BRENNAN CJ: Say, for example, you have a pilot and the agreement is to finish work at 65 and on the morning after his birthday he goes out to the airport but the new pilot has taken the one plane of the company off somewhere. He says, "I want to work". The employer says, "There's no plane here for you to work on; somebody else has got it". Does that amount to the contravention of section 170DF?

MR JACKSON: Your Honour, it may be there is no plane available to fly that day but, if the employer were not prepared to say "You remain in effect on the payroll", then, in our submission, yes, it would be. The feature about it of course is that, whilst it may be a change in some respects so far as the federal law is concerned, that is the ambit of the law that has been enacted, in our submission. That is not very surprising, for example, if one looks at the New South Wales provision that preceded it, to which I will come a little later.

May I also, in relation to this question, refer your Honours to a decision of the Full Court of the Industrial Relations Court where the issue, generally speaking, is discussed. That is Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200. It is a case where an employee was in effect forced to resign, there being an allegation that he had been pilfering. Your Honours will see the court, Justices Lee, Moore and Marshall, at pages 204 to 206, dealt with these provisions. If I could take your Honours to page 204, about point 7 on the page, discussing the relevant convention, their Honours say, and I am referring your Honours to the paragraph commencing:

It is necessary to consider the ordinary meaning of the expression "termination at the initiative of the employer" -

The reason why it is necessary to consider that, your Honours, is because of the definition provision in the Act and - it was section 170CB, and the expression, your Honours, "termination" is relevantly defined in the way in which their Honours refer:

"termination at the initiative of the employer" -

They discuss then the dictionary definitions and the term "initiative", which really suggests that "initiative" means what it says. Then your Honours will see, at the top of page 205, in the second line, that they say:

the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination.

A few lines further down they paraphrase that by saying that the purpose of the Convention is that the expression should be treated:

as a reference to a termination that is brought about by an employer and which is not agreed to by the employee.

May I invite your Honours to read the passage that goes through the remainder of that page through to the top of page 206 to about point 2 on the page. The most relevant passage, your Honours, is in the last couple of lines on page 205 and the top of page 206, the view expressed by their Honours:

That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

It is put in another way, about point 4 on the page, at the end of that paragraph:

But for the insistence of the employer, termination of employment would not cross the mind of the employee.

Your Honours, what we would seek to say is this, that the enforcement of a retiring age is, of course, the usual way in which there would be termination of an employee's employment by reason of age. Your Honours, if one were to take, for example - your Honours, what we would say is that if the employer seeks in respect of an employee who is willing to continue working after that age to cease to employ that person, then section 170DF applies.

Your Honours, if I could take your Honours to paragraph 10 of our summary of argument, we put that proposition in a number of ways, and your Honours will see particularly paragraph 10(a), age retirements, apart from statute, inevitably arise from company policies or contractual terms rather than decisions in relation to particular cases. Your Honours will also see, if one goes to section 3 of the Act, that sets out the objects of the Act, relating to this, amongst other things. Section 3(g) of the Act refers not merely to eliminating but also to preventing and eliminating discrimination on the ground of age. We would submit, your Honours, that the legislation should be treated as directed to that aim - - -

McHUGH J: It would be so easy to get around it if, even on your view, your client is given a 20 year contract, expiring on a certain date. What do you say then?

MR JACKSON: Your Honour, that would be okay.

McHUGH J: Supposing it ended on his birthday when he turns 65.

MR JACKSON: Your Honour, that would then give rise, in our submission, potentially to a different question because one would have to look to see whether the retirement was by reason of age and if age was not found to be a reason, then section 170DF would not be contravened. If on the other hand age was found to be, then it would be and it would be very likely to be if, as administratively might well happen, one started to find people saying, "20 years. We will take it up to your such-and-such birthday or take it down to your 40th birthday, 50th birthday," whatever it is, and once that happens, of course, one starts to fall into the area prescribed by the provision. If on the other hand it is 20 years and the 20 years could end for some people some time when they are 40, some time when they are 60, a different proposition altogether.

KIRBY J: The theory of the section that the appellant puts to the Court it really just misfires completely in policies of compulsory retirement.

MR JACKSON: Your Honour, it does not have a lot to do with their age. It does not have very much work to do in relation to age.

KIRBY J: Of course, that goes far beyond Qantas pilots and we should pause long and carefully before we come to that conclusion.

MR JACKSON: Indeed, your Honour, but could I give perhaps two examples that do not relate to retirement at what one might describe as being more or less traditional retiring ages. If you took, for example, people who are operators, I think is the word, on the floor of a futures exchange where the work is said to be somewhat hectic. Now, if a policy were adopted that no one could work on a futures exchange floor beyond the age of 35, that would be a termination of employment by reason of age. If on the other hand one took the view that if employment were done in such a way that receptionists in various places had to cease work at the age of 32 or something of that kind, then, your Honours, that might well be something falling in the same position and, your Honours, what one can see is that there are many opportunities, in our submission, to get around, if I could put it loosely, the provisions of the statute if termination of employment is timed so that it occurs coincidentally with a particular age.

McHUGH J: One way of getting around the problem, if the legislature really wants to, is prohibiting the making of such contracts. Is there anything in the legislation which prohibits the making of such contracts? One view of the section may be that what the legislature was designed to protect was people's expectations that they would be entitled to go on to a particular age and that then you cannot change that, but if you made a contract to retire at 40 or 35 or 55 or 60, that is something different.

MR JACKSON: Your Honour, it does at least that but it is a question of whether it does more and, in our submission, it does not draw a distinction of the nature to which your Honour refers as a possibility and it does not do that, in our submission, because the value that has been adopted in the legislation is that there should not be as a relevant criterion age or any of the other criteria that are referred to in 170DF(1)(f) unless, of course, it is possible to establish that the relevant criterion is one which falls within subsection (2) and, your Honour, there is no particular reason why one should treat the legislature as only protecting expectations as distinct from going further and saying, "Well, this is to set a new standard."

BRENNAN CJ: I do not know. I mean, in practical terms most employees in Australia are employed on periodic contracts, are they not, weekly, monthly, perhaps yearly? Very few would be employed up to an age.

MR JACKSON: Yes, your Honour, that is probably true. I could not give your Honour any figures.

BRENNAN CJ: So that there is more than ample work for this to do if employers decide to terminate at any of those periods on the ground of age.

MR JACKSON: Well, your Honour, in many circumstances one would expect that people who are employed in occupations where it is capable of being terminated - I am sorry, may I draw a distinction, your Honour, between a number of classes of case. True it is, as your Honour put to me, that there are many people who are employed on weekly, monthly, or whatever it be, contracts. Many of their situations are covered by, in former times awards, today enterprise agreements, and awards and agreements of those kinds, whilst making provision for there to be termination in particular circumstances, would also provide for things such as retiring ages and so on in the ordinary course of events.

They would also have, in many circumstances, provisions which said that "last on, first off", that sort of thing, so that there was to be, in fact, some security of employment. So that, whilst one might have the possibility of there being terminations, on the other hand the expectation would be that there would be, in many cases, work going on until retiring age at least. Now, what the Act has done is to do relevantly two things. The first is the one that your Honours will see in 170DE, which does not allow there to be a termination unless there is some reason - for example, the conduct or condition of the particular employee, or satisfactory operational requirements on the one hand, but, on the other hand, to have the prohibitions in 170DF.

Now, your Honour, our submission - I am sorry I have taken a while to answer this - what I am seeking to say is that what the Act has done has been to impose a number of different requirements in relation to employment which are very, very significant and apply really across the board, to the extent to which there is a board. And the board is not one that is necessarily quite of the nature to which your Honour referred; it is one that has or has had a dynamic aspect to it.

BRENNAN CJ: I must say, the reference to those two sections really raises another problem, and that is that if there is going to be a retrenchment because of operational conditions, which comes within the first section, then the second section says that you are not to retrench by adopting a criterion of age.

MR JACKSON: Yes, your Honour.

BRENNAN CJ: I mean, there is no absence of practical operation within the meaning of your paragraph 10(a), is there?

MR JACKSON: Well, your Honour, it is true it would have some practical operation. I accept that, your Honour, and perhaps 10(a) - the first sentence - overstates it. But at the same time, if one is looking to see what the lion's share of the work would be then, in our submission, the lion's share of the work would be in relation to retirements by reason of age.

BRENNAN CJ: Yes.

MR JACKSON: Your Honours, that is where they are the things that classically arise because of the expiration of the term, if I can put it that way. Your Honours, could I come then to section 170DF(2), and the circumstances in which - or the hypotheses, if I can put it this way - on which section 170DF(2) operates are two; the first is that the employment has been terminated by the employer, of course, because the employee is of a particular age, and the second is that it is an inherent requirement of the particular position that the employee be of a different age. Now, your Honours, that is what, in effect, the subsection says.

What we would submit, of course, is that, as is apparent from the structure of subsection (2), the ultimate determinant of the inherent requirements is to identify what is the particular position. Your Honours, there are several features, in our submission, which support the view that the term is not to be given a wide meaning. In the first place, we would submit, one can look at the other textural features of the legislation and, in that regard, we would go first to the section I mentioned ago, section 170DE and, your Honours, the different language of section 170DE(1), using the expression "valid reasons" and "valid reasons connected with capacity or conduct" and in particular, of course, "based on the operational requirements of the undertaking, establishment or service" - the presence of those words indicating that, in that context, "operational requirements" are to be taken into account indicates, in our submission, that where the legislature was suggesting that they could be relevant, that it said so.

Your Honours, if one goes then to section 170DF(1)(f) itself, your Honours will see that, a wide power having been given by section 170DE, there is then a strict prohibition upon terminating by reason of any of the features in 170DF(1)(f). That prohibition, your Honours, is relaxed only if the particular position one holds has age as an inherent requirement. The argument no doubt has an element of circularity about it, but what we would submit is that when one goes down the chain in effect from 170DE through to the broader provision, the broader prohibition, in 170DF(1)(f) and then comes to the exception to it, however one describes the exception, what it does suggest, in our submission, is that a particular age has to be an inherent requirement of the particular position.

Your Honours, we would submit also that the history of the relevant prohibition in the convention is of some significance. It is in the convention referred to in section 170CA(2)(a) which your Honours will see, the convention concerning discrimination in respect of employment and occupation. At the time of adoption of that provision in the convention, a proposal to widen it was in fact rejected. Your Honours will see that referred to, if I can put it shortly, in Justice Marshall's reasons for judgment at page 847 in volume four. It is a quotation in the middle of the page, quoting from Nielsen's article where your Honours will see at about line 32:

Thus, the Conference Committee on Discrimination rejected a proposal from the employers to insert after the words "inherent requirements of the job" the words "or the particular circumstances under which the job is being performed".

KIRBY J: Do we have access to the original material here or only in his Honour's reasons?

MR JACKSON: No, your Honour, I think - - -

KIRBY J: Speaking for myself, if we are going to have a look at this, I would rather have a look at the original material rather than taking it second hand.

MR JACKSON: I appreciate that, your Honour. I was giving your Honour a short reference. I rather thought it was from the - - -

KIRBY J: It is just a question of whether it is before us.

MR JACKSON: Actually, we have given to the Court the article but, if that is not the case, we will make sure your Honours have it.

KIRBY J: It is either here or can be got?

MR JACKSON: Yes, your Honour. It does not really go much beyond the passage that is extracted by his Honour, but I took your Honours to that as a brief way of doing it. A third feature to which we would refer is that no doubt there are, depending, to use my learned friend's expression, the level of abstraction one adopts, a number of possible descriptions of the particular position. They can be seen in the summary by Justice Gray at page 831 in volume four. May I take your Honours to that. Your Honours will see at the top of the page, about line 5 - the range of possibilities really seems to be those summarised between lines 5 and 15 on that page. We would say that the respondent was employed by Qantas as a pilot of B747-400 aircraft and, perhaps one can add also, as a captain.

It is not correct, however, to add the term "internationally" because a significant part of the Qantas flying was done domestically. For example, an aircraft arrives from overseas in Sydney, change of crew, crew flies it to Melbourne and then comes back the same day or comes back the next day and then another crew takes over and flies the plane overseas again. The same happened, of course, with Sydney to Brisbane and back to Sydney. Your Honours, to be a Qantas pilot, engaged in their overseas as distinct from their domestic former Australian Airlines flying, was flying that involved both flying in Australia and flying internationally. Flying in Australia I mean from within Australia - within two destinations. Your Honours, to say that it was - - -

KIRBY J: That is a little unpersuasive, is it not, given that Qantas has both national and international routes with different planes on them and that flying nationally or to four ports out of Australia is really a very minor part of the nature and essence of this particular position?

MR JACKSON: Your Honour, I do not think that is quite right, with respect. We put the figures in paragraph 38 of our submissions and the last sentence of it, about 19 per cent of the hours of Qantas long-haul international pilots have traditionally flown within Australia.

BRENNAN CJ: How did the certified agreement then apply to these pilots?

MR JACKSON: Your Honour, they were not flying, for example, the TAA Australian Airlines flights.

BRENNAN CJ: This certified agreement applied only to international pilots, did it not?

MR JACKSON: Yes, your Honour, they were international pilots, but they were flying, but as international pilots part of their tasks were to fly the 747s. For example, one might arrive in Sydney - I am just giving an example - from some other part of the world - - -

BRENNAN CJ: No doubt it might arrive in Cairns and then Cairns to Sydney and there would be a domestic leg in it.

MR JACKSON: But with the pilots we are talking about flying that domestic leg.

KIRBY J: But that is incidental to their being international as distinct from domestic pilots.

MR JACKSON: It is part of it, your Honour. I do not mean to be - - -

BRENNAN CJ: It is part of it, yes. Is that not the proposition? If it is part of it, is it an inherent requirement?

MR JACKSON: I am sorry, part of it is - your Honour, what I am seeking to say is that the description of them or the position, at page 831, the top of the page, to say that it is to fly internationally as an inherent requirement of the position is not really accurate. If one were to include anything of that nature at all it would be to fly both internationally and to fly on domestic parts of international flights.

BRENNAN CJ: If we add "to fly internationally", either brackets, (and national legs thereof).

MR JACKSON: Yes, your Honour. Where I would seek to go from there is to say that once one adopts that view, for example, that that was their function, it becomes very difficult, in our submission, to say that it was an inherent requirement that the holder of the position be aged less than 60 when, for example, the holder of the position could fly Qantas aircraft, for example, in Australia on the legs to which I refer. So too could any other 747-400 pilot employed by Qantas. The holder of the position, your Honour, could fly Qantas aircraft outside Australia but not to some parts of the world. So too could any other Qantas 747-400 pilot.

What we would seek to say is that if one takes a situation where a pilot in the position of the respondent could do exactly the same things as any other pilot except that that pilot could not fly to a number of places, the suggestion that it is an inherent requirement of the particular position that the pilot be able to fly to all those places, or to a very substantial number of them, is incorrect, in our submission. What we would say is that the position is something defined not by reference to the places where the flying has to take place but by reference to the other matters to which reference is made at the top of page 831. Your Honour, the only - - -

KIRBY J: This is where I have difficulty and I would like to understand fully your argument. If you are thinking of the particular position, if you ask Captain Christie that, he would not have conceived of himself as a domestic pilot with an occasional sortie overseas. His particular position was an international pilot, with some legs within Australia. If the concentration is on the word "particular" and if you are trying to define what his particular position, he is an international pilot. It is a different league; it is the big league.

MR JACKSON: Your Honour, may I say two things in relation to that? The first is this, that what he was was that he was employed by the respondent. One accepts that. He was employed as a pilot. He was employed as a captain of what - he was employed as a captain of a particular aircraft, the 747-400 and the largest jumbo jet. Now, the tasks carried on by a person in that occupation were tasks that involved a number of things. They involved flying those aircraft both on domestic legs and also on overseas legs.

Now, in relation to the respondent, he could fly domestic legs and he could fly overseas legs. The only difference between him and a pilot under 60 was that some of the overseas legs he could not fly because of the laws of other countries and, your Honours, if one is looking to see what are "the inherent requirements of a particular position" and one says, "He can do all the same things except that there are some geographical limitations on him", and he could fulfil his life or his remaining years as a pilot flying both internationally and flying domestic legs, as all pilots have to do, all the pilots, and Qantas would have to do, of international flights when there is a change of crew then, your Honour, that, in our submission, tends to indicate that the particular position is not one that has added to it the ability to fly anywhere in the world that Qantas chooses to go.

KIRBY J: But there are two problems with that and one is the definite article and the second is the adjective "particular".

MR JACKSON: The particular has always been there, your Honour, and all one sees, if I can just go to the provision for a moment, is that it says:

the reason is based on the inherent requirements of the particular position.

Now, your Honour, one has to say in effect the particular position to in effect make the provision one that it is intelligible in a sense. One could say "of a particular position", but it would really read a bit oddly if one said that. So it is not using definite article in the sense of that itself intending to give it a particular or a definite meaning in that sense, perhaps I could use those expressions, but rather simply as the ordinary punctuation and use of connecting words one would expect to see and recognising, of course, and no doubt the term "particular" and "position" are used to recognise that the Act relates to a vast range of people who have all kinds of different jobs, perhaps a somewhat dated word today.

Your Honours, what I was going to say was that a similar situation could arise, of course, by reason of a number of other matters that are referred to in subsection (1)(f). Apart from any question of age, one could have questions of sex - that has been referred to already - but one also could have issues of religion of arising, where in the days of the Arab and Israeli conflicts there were difficulties with people of one religion flying to the other. One also has cases of potential political orientation.

Your Honours will have seen the possibility, I should say, that people who, for example, support the IRA or vocally supported the IRA might not be allowed in some circumstances to fly planes into Britain. Again, of course, there are potentially nationality issues and whilst at the moment life seems happy enough between Pakistan and India, that has not always been the case. Your Honours, what we would submit the position is is that those matters indicate that a wide view should not be taken of the term "particular position" and a rather similar - - -

McHUGH J: What do you mean by "wide view"? Reading the judgments and having regard to what Mr Bennett said, I tended to think that the committee of experts' opinions and the cases and the German Work Ban Case was very much in your favour, but it would appear on an examination of the whole material that "particular position" requires an individual consideration of each person in relation to each specific job and it rather looks as though it is a very concrete test.

MR JACKSON: Well, your Honour, I would not really dispute what your Honour has said to me as such. It is necessarily a question of its application, and that is where the term - or the ambit to be given to "inherent requirements" in a sense itself perhaps casts some light on the term "particular position" because the two terms are found together. We would submit, in that regard, that the term "inherent requirements" is designed to, in effect, when read with "particular position", mean that one looks at only matters that are essential to it. One looks at the "particular position", of course, while one is looking at the things that are essential to it in the context of the particular prohibition.

Your Honour, the fact that a wide view should not be taken is suggested also, we would submit, by the two United States Supreme Court cases to which we have referred. Could I take your Honours to those very briefly? The first is Western Airlines, Inc. v Criswell [1985] USSC 161; (1982) 472 US 400. Your Honours will see, at the start of the headnote, the relevant legislation was the Age Discrimination in Employment Act, and I do not think actually, your Honours, that the full provisions are set out in the reasons, but what your Honours will see is that it prohibited mandatory retirement before the age of 70, but had an exception where age was a bona fide occupational qualification. There was a policy that flight engineers retire at 60, and that was the subject of the challenge.

Now, if I could go to page 412, your Honours will see just above the heading III on the page there is a reference to the BFOQ exception, as described, and what your Honours will see about halfway down the page, it is said:

the BFOQ exception "was in fact meant to be an extremely narrow exception to the general prohibition" of age discrimination contained in the -

Act. Your Honours, also the fact that the exception was to be construed narrowly can be seen in the other decision of that court to which we refer, Automobile Workers v Johnson Controls, Inc [1991] USSC 44; 499 US 187, and in particular, your Honours, at page 200, above the heading IV:

We hold that Johnson Controls' fetal-protection policy is sex discrimination forbidden under Title VII unless respondent can establish that sex is a "bona fide occupational qualification."

Then the top of the next page, first new paragraph:

The BFOQ defense is written narrowly, and this Court has read it narrowly.

Your Honours, that provides some, albeit marginal, support, in our submission, for the view that provisions of this kind should not be given an extensive operation unless the provision requires.

Could I come, your Honours, to one further thing, and that is that in relation to the rostering system and its relationship to the inherent requirements of the particular position, what we would submit is that both Justices Gray and Marshall in their several ways are in the end correct in the view which they take in relation to the inherent requirements of the particular position. Your Honours have been taken to page 830 of Justice Gray. Could I just take your Honours to some passages in the relevant part of his reasons going from page 830 to page 836. I wanted to refer your Honours to page 831, about line 25. He refers to the fact that there were three overseas destinations to which he could fly. Then line 30:

Because of the laws of some other countries, he would not be able to captain -

and so on. Then at the bottom of that page, line 50:

It is only the addition of another factor or other factors to the characterisation of the appellant's particular position that would lead to the conclusion.....that age is an inherent requirement -

At page 832 he refers to the fact that the rostering system had the force of the certified agreement. That does not seem, with respect, to be correct. I will not take your Honours to the detail of it, but one can see that in volume one at page 60 in the evidence that was given about it Mr Becquet. He refers to the fact that they have not got round to working out the detail of it in effect on paper. This is a matter with which we deal in paragraphs 22 and following of our written submissions. Could I just say if one goes back to page 832, he discusses the rostering system. Your Honours will see, for example, about line 45 that a trip may involve four hours of work flying from Sydney to Melbourne and return, maybe as much as a 12-day trip. At line 15 on the next page:

The respondent has for some time operated a rule of its own making in conjunction with this bidding system. The rule is that a pilot cannot bid for more than two one-day trips in any eight week period.

The summary at which his Honour arrives at page 834, lines 10 to 15, was that both those matters were irrelevant to the inherent requirements, speaking of something, as he said about line 20:

that is essential to the position, rather than being imposed on it.

His Honour said, in our submission correctly, that he did:

not think that an employer, by stipulating for contractual terms, or by creating or adhering to rostering systems, can create inherent requirements of a particular position.

GUMMOW J: What is the position? It has no anterior existence, does it?

MR JACKSON: No, your Honour. I was about to say that may require some qualification in some circumstances, but if one does have a position that is capable of identification, then in the ordinary circumstances, in our submission, one could not change it simply by saying it is to be done by the application of a particular rostering system. Your Honours will see at the bottom of page 834 he refers to the cost and so on and his summary is at page 835 in the first new paragraph.

BRENNAN CJ: As a matter of principle, do adopt that expression of opinion, that an employer cannot create inherent requirements of a particular position?

MR JACKSON: Your Honour, cannot usually. There are some circumstances in which if one created a new position that might be the case.

BRENNAN CJ: I do not understand the concept for myself, that there could be a position without the creation of inherent requirements by an employer.

MR JACKSON: I think what his Honour is saying, and perhaps what we would say, is that there are positions that have - one can identify what they are and there are some things that one can say are inherent requirements. In the particular case we would say that it was an inherent requirement that he be a pilot, that he be able to pilot the particular aircraft, and no doubt be certified to fly it, and, your Honour, one could say that a requirement was that he be a captain of the aircraft, perhaps.

Having said that, those are the things, in our submission, that really fall within the description of the inherent requirements. The point that his Honour is seeking to make, and that we would seek to make, is that in relation to the operation of something of that - in relation to such a position, where it is perfectly possible for the activities of the position to be carried out, one cannot redefine the position simply by creating a roster saying, "You will not be able to do the things that are inherent in the position as much as you could before."

McHUGH J: It may depend on the terms of the roster. For example, BHP distinguished between its workers as day workers, shift workers, and seven day roster workers. They were workers who work for seven days in a row and then they might get three days off, and then they work seven days and they might get four days off, et cetera. Surely that was part of the inherent requirement of them, that they worked according to that roster.

MR JACKSON: Your Honour, that may be, and that is why I would not go to the length of the proposition that is set out here. At the same time - and, your Honour, it would unlikely too that the issue presently arising would arise in a case of that kind.

McHUGH J: No, not in that case. His Honour seems to proceed on the basis that the inherency of a position is something independent of its terms.

MR JACKSON: Your Honour, one has to bear in mind the context in which he is speaking, and it is in dealing with the operation of subsection (2). Your Honours, Justice Marshall, at page 852 - - -

KIRBY J: By the way, you took us to that American case. Do you agree that what was put before, that in the United States the same rule applies as is argued for by Qantas here, that for international carriers the pilots, notwithstanding the United States' discrimination law, must retire at 60?

MR JACKSON: Your Honour, that is because of the view taken there as to the medical base for it, something that was found not to be the case by Chief Justice Wilcox.

McHUGH J: But it does not depend on a medical basis. That is the policy behind it, but it depends on a regulation, by force of law, I thought.

MR JACKSON: Your Honour, I think that is right, but underlying that is - - -

McHUGH J: Yes, underlying it.

MR JACKSON: - - - the view that see that there is some bona fide reason for saying people should stop flying at 60, a bona fide medical reason.

McHUGH J: And it is contained in the reports of Dr Billings, who gave evidence here.

MR JACKSON: Yes. Dr Billings is accepted there but his evidence was not - - -

McHUGH J: People who are 60 are more likely to have heart attacks than those of 35.

BRENNAN CJ: A purifying thought though it may be.

MR JACKSON: Indeed, your Honour, indeed. Your Honours, if I could just go to page 852, lines 10 to 15. What his Honour said is that:

Mr Christie is not disqualified from being able to perform the characteristic tasks or skills required in being a pilot, his is only inhibited geographically as to where he may perform such tasks.

Your Honours will see that he develops that in the next two sentences. In our submission that, put briefly, encapsulates in a sense - - -

GAUDRON J: Can I take you, though, to what appears also there, an operational case; because what has been worrying me about this case is the assumption that if there was a termination it was for age. I would have thought that it was well open to Qantas to argue, but it does not seem to have been the case, that it was due to an operational requirement. Once a pilot reached the age of 60 Qantas's operations were such and its operational requirements were such that they did not need one - they could not employ them.

MR JACKSON: The difficulty with that is operational requirements brings one into, I suppose, section 170DE but if the reason for termination is age, then that is prohibited unless section 170DF(2) applies.

GAUDRON J: I would have thought that there might not be a necessary mutual inconsistency between operational requirements and termination for age, or termination at an age. Merely to terminate at a time when a person has reached a certain age may not, in the context of Qantas's operation, be retirement on the ground of age but retirement because of its operational requirements.

KIRBY J: Qantas might say, "We are absolutely opposed to this. This is a silly rule and we're going to try and change it but it's the rule of the international aviation industry and we just have to conform to its operation".

MR JACKSON: That may be why one sees the presence of a provision such as section 170EE(2) which has the effect that the order that can be made is not necessarily an order for reinstatement but an order for the payment of limited sums of money. If I can just take your Honours to section 170EE, your Honours will see that it provides in subsection (2) that:

If the Court thinks.....that the reinstatement of the employee is impracticable, the Court may make an order requiring -

payment of compensation and the compensation is limited by subsection (3) which makes it, in effect, six months at the award rate and then in respect of people who are not employed under an award, not to exceed the applicable amount which at the time of enactment was $30,000.

We would submit that the presence of that provision suggests that section 170DF(2) should be given the narrower meaning, but that if there were considerations of the kind to which your Honour referred, that could be dealt with by an order for the payment of money. The detailed position in relation to the rostering system to which I shall not take your Honours is set out in paragraphs 22 and following of our written submissions, and may we invite your Honours to read those.

Your Honours, that takes me then to the issue that I wanted to raise in relation to the notice of contention and that is in relation to the Anti-Discrimination Act. Your Honours, this issue was one that was raised before Chief Justice Wilcox but was not dealt with in his Honour's reasons perhaps because he had found for us on another aspect of the contract issue. It was raised in the Full Court but is not referred to in the reasons of the court. The essential question is whether the provisions of section 49ZV of that Act, which came into force on 1 January 1993, had made unlawful compulsory retirement on the ground of the employee's age.

Now, your Honours, in that regard the provisions in question are set out in Part 4E of that Act and may I take your Honours to that for just a moment. What your Honours will see that it is clear, indeed, from the heading of the Part, Part 4E, that it refers to "Compulsory Retirement From Employment on the Ground of Age" and your Honours will see then in section 49ZU(1)(d) that it refers to:

all other employees in New South Wales whether or not employed subject to an award or agreement.

And award or agreement is defined to mean a New South Wales award. Your Honours, could I just say that I do not suggest for a moment that this Act could survive any inconsistency with the federal legislation, but having said that, I am seeking to demonstrate is what it applied to in the particular circumstances. One then goes to section 49ZV and section 49ZV, your Honours, makes it unlawful for a person to do any of a number of things. They include:

(b) to require an employee to retire from employment; or.....

(d) to engage in conduct with a view to causing an employee to retire from employment,

on the ground of the employee's age.

Now, your Honours, the position which obtained at relevant times was that the original airline pilots agreement had been registered with the Commission and it was registered on 19 June 1989. As I submitted earlier, it said nothing about a retirement age but provided for termination on notice and that is section 5A of that document. Looking at the position under the agreement - - -

GAUDRON J: Were there not awards before then, as well?

MR JACKSON: Your Honour, there was the Flight Crew Tribunal at some point.

GAUDRON J: Yes. I remember sitting on a work value case involving Qantas crew years ago, so there must have been an award.

MR JACKSON: Yes. Well, there was a Flight Crew Tribunal, which became part of the commission, of course. But, your Honour, in the event there was the agreement at relevant times.

GAUDRON J: There was no other award? There was nothing else?

MR JACKSON: No, your Honour.

GAUDRON J: Just the agreement.

MR JACKSON: Just the agreement.

GAUDRON J: From 1989 onwards, just the one certified agreement.

MR JACKSON: Yes, your Honour.

GAUDRON J: And that had the same effect as an award.

MR JACKSON: Yes. Now, the two potentially relevant letters of agreement were the two to which I have referred earlier. The first of them was registered, the second not. The first of them, your Honours, referred to a normal date of retirement with an ability to extend up to the 58th birthday and, your Honours, that award, of course, and that agreement, having effect as if it were an award, would prevail over a State law. But it only went up to the position, and the position was only covered in relation to employment up to the 58th birthday of a pilot. In the case of the applicant, or case of the respondent I should say, that took one up to 21 September 1992.

Now, your Honours, at that point Part 4E of the State Anti-Discrimination Act was not in force. Your Honours, the second letter of agreement appears in volume one, at page 217 and, your Honours, it is clear that it was not registered, and that that is so - if I can just give your Honours the references without taking you to them - appears at page 550 in volume three, and at page 753 in volume four.

Covering, in respect to the employment of the respondent, from age 58 to age 60, there was no provision of the certified agreement, no provision of the letter of agreement that was also certified, that dealt with his position. They covered the situation up to 58, but made no provision in relation to any - to use the neutral term - extension of the term thereafter. The only thing that governed it was the unregistered letter of agreement, which took the position up to the age of 60.

Now, your Honours, in those circumstances what one had, in our submission, when the State law came into effect on 1 January 1993 was that you had a person who was employed by Qantas - I will come to the geographic aspect of it in just a moment, if I may - in relation to whose employment there was no relevant provision of any federal legislation or delegated legislation or agreement and to whom, in our submission, the provisions of the Anti-Discrimination Act would apply.

Could I pause to say, your Honours, this, that the New South Wales anti-discrimination legislation of various kinds has in the past been treated as applying to Qantas. Firstly, your Honours, one example and that is Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 and that is a case dealing with the position of female flight attendants who claimed sex discrimination in the way in which they were treated and promoted.

BRENNAN CJ: Mr Jackson, I am not following this, I am afraid. 30 March 1994 was when the relevant provisions of the Industrial Relations Act came into force; is that right?

MR JACKSON: Yes.

BRENNAN CJ: And the relevant date with which we are concerned here from the point of view of either termination or retirement is subsequent to that, 21 September 1994.

MR JACKSON: Indeed, your Honour. Your Honour, what I am seeking to say, if I can put it shortly, is that in so far as there was reliance upon there being at the time of termination in September 1994 a contract that was expiry in effect by effluxion of time, it is that aspect of the case to which it goes, we would seek to say two things. The first is that from the time when the New South Wales law came into being, 1 January 1993, until the time when the federal law came into effect at the end of March 1994, that the term of the contract that required there to be such a retirement was one that was proscribed by section 49ZV. That is the first thing.

The second thing, your Honours, is we would say that when the federal law came into being, the relevant governing provision then became section 170DF and that there was not at the time when the federal law came into being any subsisting agreement which contained a provision that it would come to an end upon the agreed retirement date. When the federal law came into effect the governing provision became 170DF.

BRENNAN CJ: Are you saying this, that the New South Wales Act destroyed whatever provision there was in the contract in relation to the terminal date?

MR JACKSON: Yes.

BRENNAN CJ: Why is that?

MR JACKSON: Your Honour, because what we would say is that if one looks at section 49ZV, for example, paragraph (b) said that it was unlawful:

to require an employee to retire from employment -

and, one of the terms of the agreement that was in paragraph (b) on this assumption, was a term that required him to retire from employment on attaining his 60th birthday, and at all times while that agreement was in paragraph (b), at least from the time the New South Wales Act provisions relevantly came into force, the terms of the agreement contravene section 49ZV(b).

BRENNAN CJ: But they do not, do they? The prohibition in that section is against the taking of specific action.

MR JACKSON: In relation to that, undoubtedly the terms of section 49ZV(a) refer to specific action. Section ZV(b) could refer to specific action, but equally, it can refer to the continuing state of affairs, the continuing state of affairs being to require today that a person retire from employment because of a contract on a certain day in the future.

KIRBY J: This point which is not without its tricky complexities was not passed upon by the Full Federal Court, and by Justice Wilcox, because of the way they developed their own reasoning. Would we not, if you lost on everything else, simply send this back to be dealt with according to law so that whether we come to look at it later would be a matter entirely for its importance?

MR JACKSON: Your Honour, undoubtedly that course is open to the Court. The difficulty in doing that, with respect, is that if we are correct about it, it does go to the question of to what was the first question I argued and the second one our learned friends argued, namely whether it was simply a contract to which section 170DF did not apply because it just expired by effluxion of time, ergo there was no termination.

KIRBY J: We do not have the advantage of any opinions of Justice Wilcox or the Federal Court on this point that you are now arguing.

MR JACKSON: No, your Honour, and all I can say about that is that that is unfortunate, but it is a matter which we now seek to raise to defend the - - -

McHUGH J: Is this the one that Mr Bennett said should be sent back to the Federal Court?

MR JACKSON: Your Honour, the one we agree should be sent back is the third point in our notice of contention, which relates to the factual findings made in relation to the roster system. But this is a matter which, in our submission, the Court would need to consider in order to resolve the matter.

GUMMOW J: You say it is necessary to consider it to know what the contractual relationship was upon which the federal Act operated when 170DF came into operation?

MR JACKSON: Yes, your Honour. Your Honours will recall that the Chief Justice put to me, on a number of occasions, that it was just a case where the agreed for term had come to an end. He had agreed to retire on that day and that was that; the contract came to an end. What we would say, your Honours, is that from 1 January 1993 provisions to that effect were provisions that were unlawful and could not be enforced. Then when the federal Act came into being there was not at that point an enforceable provision which would allow Qantas simply to terminate his employment on that date. The case then became one where the rights of those simply dealt with by section 170DF.

GUMMOW J: You might be right or wrong about that.

MR JACKSON: Yes, of course, your Honour.

GUMMOW J: 49ZV enters into as a necessary link.

MR JACKSON: Yes.

GUMMOW J: Is there any penalty provision attaching to 49ZV? What does it mean, that it is unlawful?

MR JACKSON: Yes, I appreciate that, your Honour. Your Honour, I think the answer is no, but that is because there is a provision in relation to a tribunal being established and orders being made by the tribunal in relation to reinstatement and so on and provision for damages, which your Honours will see in section 113.

GUMMOW J: Thank you. What is the geographical reach of this?

MR JACKSON: Yes, your Honour. In that regard, your Honours will see that section 49ZU(1)(d) refers to "all other employees in New South Wales". What we seek to say is that the respondent was a person who, first of all, was employed in New South Wales, he always lived in New South Wales, he was engaged in New South Wales, all his work was to and from Sydney, the Qantas base from which he worked was in Sydney. I have endeavoured to summarise it on a piece of paper, your Honours, with all the relevant references to the evidence. Could I give your Honours copies of that.

BRENNAN CJ: Thank you.

MR JACKSON: What we would submit, your Honours, is that section 49ZV was a provision which had the effect that contracts which involved doing the things that were proscribed by the provision were unenforceable. Your Honours, that topic, of course, is dealt with by the Court in Nelson v Nelson 184 CLR 538. Can I refer your Honours, for example, to the classification of such contracts by your Honours Justices Deane and Gummow at page 552. Your Honours, those are the oral submissions we wish to make.

BRENNAN CJ: Thank you, Mr Jackson. Mr Bennett.

MR BENNETT: Your Honours, I would expect to be close to half an hour. I do not know if that affects your Honours' decision as to what course to take. If your Honours were to adjourn overnight, I could perhaps shorten it a little by having written submissions in two columns, but I am in your Honours' hands.

BRENNAN CJ: Yes. We cannot resume before 10.15 tomorrow morning, Mr Bennett, and we will adjourn until 10.15 tomorrow morning.

MR BENNETT: If the Court pleases.

AT 4.23 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 4 JUNE 1997