Federal Court of Australia, The Commonwealth of Australia v. Human Rights & Equal Opportunity Commission, 15 December 2000,  FCA 1854
Protection against discrimination in employment and occupation
Use of international law as a guide for interpreting domestic law
Discrimination on the grounds of age/ Officer not selected for a promotion/ Use of international law to determine whether indirect discrimination was covered by national law/ Use of international as a guide for intepreting domestic law
An Australian naval officer, then forty-seven years old, was unsuccessfully considered by a Promotion Board for recommendation for promotion to a senior rank. He appealed that decision alleging discrimination on the ground of age in violation of Article 3(1) of the Human Rights and Equal Opportunity Bill, 1986.3
The national law did not explicitly establish if the term “discrimination” of Article 3(1) of the Bill covered “indirect discrimination”. The Australian Federal Court used international instruments to solve this interpretation problem. It relied not only on ILO Convention No. 111 on Discrimination (Employment and Occupation), but also on the documents of the ILO supervisory bodies clarifying the meaning of the Convention.
The Court stated:
“The Act was introduced to be the vehicle by which Australia’s obligations under the (…) Convention (…) are implemented. It is not surprising therefore that the two paragraphs of Art. 1 of the Convention which I have quoted in the preceding paragraph of these reasons should be the source of the definition of “discrimination” in subs 3(1) of the Act, which definition, in substance, reproduces those two paragraphs. That being the case, the definition of “discrimination” in the Act should be construed in accordance with the construction given in international law to the definition of “discrimination” in the Convention.4 (…)
In the result, there appears to me to be powerful support, certainly in the various expression of opinion by the Committee of Experts, including that of 1996,5 but also in the report by the Commission of Inquiry regarding Romania, for the conclusion reached by the Commission in the present matter that the definition of “discrimination” in the Convention and therefore in subs 3(1) of the Act does extend to indirect discrimination.6
In its General Survey of Equality in Employment and Occupation in 1988, the Committee of Experts had said that “the concept of indirect discrimination refers to situations in which apparently neutral regulations and practices result in inequalities in respect of persons with certain characteristics or who belong to certain classes with specific characteristics (race, color, sex, religion, for example).””7
Using ILO Convention No. 111 and related statements of the ILO supervisory bodies, the Federal Court of Australia concluded that national legislation on discrimination in employment and occupation covered indirect discrimination. On that ground, the Court qualified as discriminatory the decision of the Promotion Board.
2 ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Commission of Inquiry established to examine the complaint concerning the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3 This Article defines discrimination as follows: “(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (b) any other distinction, exclusion or preference that: (i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (ii) has been declared by the regulations to constitute discrimination for the purposes of this Act, but does not include any distinction, exclusion or preference; (c) in respect of a particular job based on the inherent requirements of the job.”
5 The judge is referring here to the 1996 Special Survey of the Committee of Experts on the Application of Conventions and Recommendations, which concerned equality in employment and occupation, and more specifically, to paragraphs 25 and 26 of that Survey (ILO: Equality in Employment and Occupation, Special Survey of the Committee of Experts on the Application of Conventions and Recommendations, Report III(4B), International Labour Conference, 83rd Session, Geneva, 1996).
7 ILO: Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, Report III(4B), International Labour Conference, 75th Session, Geneva, 1988, paragraph 28, note 1, quoted in paragraph 37 of the decision.