ۥ- oY۝MMM]mmm{{{{{ v4:YYQZ Appendix B Human Rights and Equal Opportunity Commission Notice under section 35 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) Concerning Equal Opportunity in Employment Complainant: Mr Ken Barty Respondent: The Commonwealth of Australia (Australian Defence Force) 1. The Commissions jurisdiction This is a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act) of discrimination in employment on the ground of age. The jurisdiction of the Human Rights and Equal Opportunity Commission (the Commission) in relation to complaints of discrimination in employment and occupation was described in my first report to Parliament on complaints in this area. That description is set out in Appendix 1 of this notice. In 1989 the Human Rights and Equal Opportunity Commission Regulations declared a number of additional grounds of discrimination for the purposes of the Act with effect from 1 January 1990. The subject of this notice, age discrimination, is one of those grounds. 2. The complaint 2.1 The nature of the complaint On 14 July 1997 Mr Ken Barty lodged a complaint alleging discrimination on the basis of his age. The complainant applied for a position of Administrative Officer with the Royal Australian Air Force (RAAF) in April 1997. Prior to making this written application, he had attended at the Air Force Travelling Recruiting Service in Bendigo and had discussions with a RAAF officer concerning this application and, in particular, the need for him to reduce in weight. Mr Barty wished his application to be considered at the next Selection Board in June 1997. He discussed this with the officer at the Recruiting Service. At the time of his written application, Mr Barty was aged 35 years. He would have been 35 at the time of the proposed Selection Board in June 1997. The complainant alleges that in May 1997 he was verbally advised by an officer of the respondent that his application had been rejected due to his age. He provided the Commission with correspondence dated 12 June 1997 and 29 June 1997 to the effect that the June 1997 Selection Board had been cancelled and that his application was rejected because at the date of the next Selection Board in March 1998 he would exceed the upper age limit of 35. 2.2 Response by the ADF In its original response to the complaint, the respondent denied discriminating against Mr Barty on the ground of his age. It stated that the application was unsuccessful because there were no vacancies and the June 1997 Selection Board was cancelled. As Mr Barty did not attend a Selection Board, his age was not addressed. References to age in the correspondence of 12 June 1997 and 29 June 1997 related only to the future processing of his application. In addition, the respondent stated that even if Mr Bartys application had been successful there was no guarantee that he would have been selected for the position. The respondent stated that the 17 to 35 years age criterion for direct entry officers was adopted following a 1995 tri-service review. The criterion was justified on the basis of the maintenance of a fit, vigorous and youthful force capable of effective engagement in combat operations. In addition, the age limits met the RAAFs organisational needs for selection of personnel for promotion. An age waiver for non commissioned airmen and women is available depending on the circumstances of the case. The respondent provided statistics on Administrative Officers in the RAAF. In summary, these showed that as at October 1997 there were 267 Administrative Officers with an average age of 39 years. Sixty five percent of the group were 36 years or older. The respondent provided the Commission with a document outlining the career details of an Administrative Officer (RAAF-OTS-Administrative Officer). This included details of positions such as unit administrative officer, financial accountant officer, recruiting officer, instructor and staff officer. The Commission was also provided with an extract of a policy document (AAP 6800.003) for the Administrative Officer position which includes, inter alia, the following criteria: being medically fit aged between 17 and 35 years on appointment if a direct entrant having completed year 12 with passes in four subjects including English completing an aptitude assessment possessing a range of personal attributes possessing at least 12 months experience in a managerial position or a thorough understanding of the responsibilities of such a position possessing interest in Service and duties of position being an Australian citizen or eligible to become one assessed as able to adjust to requirements of military life. 2.3 Conciliation Attempts by the Commission to conciliate this complaint were unsuccessful. 3. Progress of the inquiry 3.1 Course of the inquiry As a result of inquiries and investigation into this complaint I made a preliminary finding that the act and practice complained of by the complainant constituted discrimination on the basis of age. Following this preliminary finding I made directions for the provision of contentions and further submissions by the parties. Pursuant to sections 33 and 27 of the Act I invited the parties to make submissions orally or in writing or both. The respondent elected to make oral submissions. On 17 and 18 December 1998 I convened the inquiry in Sydney to take oral submissions from the respondent. The complainant was provided with an opportunity to attend but preferred to make written submissions on the basis of a transcript of the proceedings. At the conclusion of the oral submissions, I directed that each party provide me with further written submissions. Both parties have provided written submissions to me and these submissions are summarised in Section 5 below. 3.2 Statement of issues At my direction during the course of the inquiry, the respondent provided a statement of the issues in contention as follows: 1. whether, following the cancellation of the June 1997 Selection Board, the respondent engaged in an act of discrimination by not submitting Mr Bartys application to join the RAAF for processing 2. if yes, whether the failure to submit the application was based on a distinction, exclusion or preference on the ground of age which nullified or impaired the complainants equality of opportunity or treatment in employment or occupation 3. if yes, whether the distinction, exclusion or preference was based on the inherent requirements of the particular position 4. whether, by enforcing a policy of maximum age of entry into the RAAF for Administrative Officers, the respondent has engaged in a practice which is discriminatory on the ground of age 5. if yes, whether the policy was based on a distinction, exclusion or preference on the ground of age which nullified or impaired the complainants equality of opportunity or treatment in employment or occupation 6. if yes, whether the distinction, exclusion or preference contained in the policy was based on the inherent requirements of the particular position. Having received no objection from the complainant, I accept this as an accurate statement of the matters in issue in this inquiry. 4. Oral evidence for the respondent The respondent called the following witnesses relevant to Mr Bartys complaint: Colonel Warfe, Colonel Dittmar, Air Commodore Byrne and Wing Commander Johnston. I have summarised below the major points arising from their evidence. 4.1 Fitness standards in the ADF Colonel Warfe gave evidence that there are two fitness standards in the ADF, a medical fitness standard and a physical fitness standard. There is regular testing to these standards and everybody in the ADF, regardless of rank, is required to undertake the tests. In essence, the standards require freedom from any medical conditions which would hamper a persons ability to operate on a battlefield. There is a requirement for everybody to be medically and physically fit to be deployable on military operations. There was evidence from Colonel Warfe and Colonel Dittmar as to the range of climatic conditions a member of the ADF would need to withstand and the loads required to be carried in combat-related tasks. Colonel Warfe gave evidence that it is necessary to ensure that people are physically mature and medically fit. They must be able to cope with the privations of a battlefield. The scientific literature indicates that physical training is best conducted in 17 to 30 year age group. From the age of 25, strength reduces with age. Preventable injuries increase at around 30 years of age. Colonel Warfe made reference to three scientific studies tendered to the Commission to the effect that injury rates and medical discharge were more frequent for older persons. The types of injuries which occur during military training (lower limb injuries, lower back, hip, knee and ankle injuries) render persons unsuitable for the military because rehabilitation takes a great deal of time and because they are at risk of future injury. Colonel Dittmar gave evidence of training requirements and injury rates. He indicated that infantry training was essentially designed around the development of taking young men and building up their physical capacity to be able to meet the operational requirement. He told the Commission that there would be a significant difference in physical capacity between an individual who was 31 years of age and someone who was 35. In relation to his own experience, he told the Commission that increasing age meant a diminution in the ability to recuperate quickly, the tendency to fatigue more easily and increased difficulty with personal hygiene, along with increased back and knee problems. Wing Commander Johnston gave evidence as to the fitness test. He said it was graded according to age and he referred to the increased risk of injury with age. 4.2 Restructuring of the ADF Colonel Warfe gave evidence that the size of the ADF has been significantly reduced in recent years. He said that it was therefore important that everyone be deployable on military operations. Colonel Dittmar gave evidence as to the structure of the ADF. He told the Commission that the size of the army was reducing and would be reduced to 23,000 persons in the next two years. Of this number, 15,000 would be in the combat force and 8,000 persons would be in training command. He described the process by which the core business of the ADF was separated from non-core business with the latter being contracted to civilians. Many jobs traditionally done by soldiers are now contracted out. Air Commodore Byrne gave evidence as to the restructuring of the RAAF and the requirement by mid 2001 for 65% of the force to be in combat related positions and the other 35% to have specialist military skills which would allow them to move into combat related areas. He said that every member of the RAAF has a requirement to be a deployable combatant. Every person in uniform must be capable of carrying out ground combatant operations defending a bare base in the north of Australia. Evidence was given concerning the conditions at a bare base. 4.3 Recruitment practices Colonel Dittmar gave evidence that the vast majority of applicants to the ADF are school leavers -generally between 17 and 19 years of age. He said that only a handful of persons approaching the age of 35 or over applied to join. He said there was a particular need in the ADF for youthful applicants because of the need for acculturation within the ADFs particular culture and because it was necessary for the ADF to grow its own skill sets in circumstances where lateral recruitment was not possible. He said that a 40 year old applicant with private sector experience would have difficulty in reaching any level of reasonable seniority in rank or remuneration. Other persons in their 40s would be of a higher rank and would have considerable experience. Individuals joining at a later age would find their peers senior to themselves. The average period of service of a general service officer is 12 years and many leave the service around their late 20s. Colonel Dittmar said that most people do not regard the ADF as a lifelong career and this is why most applicants are school leavers. Colonel Dittmar gave evidence that there was some degree of flexibility in relation to the recruitment of specialist service officers, particularly medical practitioners, because they are in critical supply. This category also includes lawyers, dentists, psychologists, padres and civil engineers. Specialist service officers are in a different category to general service officers. Administrative Officers fall into the latter category. Air Commodore Byrne said that the rationale for the age maximum was to enable the RAAF to become a youthful combat force capable of undertaking ground combat operations in the north of Australia. This was aligned to the practice in the army. He said that the ADF tended to attract school leavers due to its heroic, adventurous image. The Air Commodore said that lateral recruitment was not possible and that the only way to get people with the right skill sets was to train them. He said that human resources managers could be laterally recruited but that this was only possible up until age 35 because of the requirement for them also to be capable of ground combat operations in a bare base which, in fact, is their primary role. 4.4 Requirements of position of Administrative Officer Air Commodore Byrne gave evidence that Administrative Officers in the RAAF are mainly human resource managers and administrators. They are also required to have specialist military skills and perform command and management responsibilities on bare bases. In recognition of the actual role, the Air Commodore stated that there was a proposal to change the title of the position to Operations Support Officer. The Air Commodore described the competencies of the Administrative Officer as including the requirement to fight a bare base, that is, to be responsible for the internal security of bare bases and have the skills to deploy forces within the base and maintain a secure environment. Evidence was given as to the meaning of a bare base and the conditions found there. Wing Commander Johnston referred to his personal experience with Administrative Officers. He described their role as resource management both human and financial. At Fairbairn, the role of the deputy base commander, an Administrative Officer, is to run the base on a day-to-day basis. The internal security of a base is a matter for Administrative Officers and such an officer would be likely to command base combat personnel. The Wing Commander gave evidence that lateral recruitment of Administrative Officers was possible and that private sector experience was relevant and applicable. It would be necessary to look at the individual case to see if the non-military skills were applicable to military uses, including combat-related roles. Colonel Warfe said that all Administrative Officers had to be deployable on military operations. They would be expected to be able to look after themselves, not be a threat to anyone else and do their jobs in a hostile physical environment. In Colonel Warfes opinion, persons over 35 could carry on the task of Administrative Officer but only if they were recruited and trained at a much younger age. All witnesses gave evidence about the rotational policy of the ADF. Wing Commander Johnston said that Administrative Officers were required to undertake postings in the north of Australia. 5. Written submissions of the parties 5.1 Submissions of the complainant In written submissions dated 18 November 1998, the complainant referred to the matter of Commonwealth of Australia v HREOC and Bradley, unreported, 16 October 1998, Wilcox J (Bradley). He contended that the spirit of the age limit was to encourage a mix of youthful and mature age persons. He submitted that the respondent had a flawed interpretation of the upper age limit. In respect of damages, the complainant referred the Commission to its earlier finding in Bradley to the effect that the loss is the loss of opportunity to be assessed on the individual merits and that such loss has been seen in other matters as justifying a small recommendation of damages. The complainant submitted that his life has been substantially affected by this episode and that he has suffered loss of self esteem, depression and loss of career prospects and opportunity. Mr Barty offered to substantiate the psychological damage with expert reports if the Commission so required. After being provided with the transcript of the oral inquiry and the exhibits tendered there Mr Barty, by letter of 7 January 1999, made further submissions: The position was not a sedentary one. Why does a doctor or a lawyer have critical skills and not other tertiary educated people? The ADFs view of inherent requirements is wrongly based on physical attributes only and not on a holistic view of skills and experience and attributes. The ADFs overall view of equality in the forces must be considered and is at odds with the evidence given. The ADFs decision to cancel the June 1997 Selection Board was due to political expediency in an attempt to disenfranchise his application and so was ultra vires the legislation. The evidence of the RAAF officers is not supported by the RAAF culture which has a reputation for highly skilled and educated personnel. The RAAF has failed to demonstrate that the inherent requirements as a physical standard are appropriate and reasonable for modern defence forces. 5.2 Submissions of the respondent In its written submissions of 28 February 1999, the respondent contended as follows: The ADF is reducing in size. The cancellation of the Selection Board in June 1997 must be seen in this context. There is no evidence that this was based on any personal animus towards Mr Barty or with a view to discriminating against any candidate. The reduction of the ADF emphasises core activities by uniformed personnel. The mid 2001 force structure as described by Air Commodore Byrne requires combat fitness. An Administrative Officer is not a sedentary role. It is not comparable to the specialist officers who perform particular limited functions. Normal levels of combat fitness apply to all personnel, including Administrative Officers. Administrative Officers must perform duties outside their specialisation to train for eventual promotion. Commanders cannot be laterally recruited. A distinction, exclusion or preference on the ground of age will not amount to discrimination if it is based on the inherent requirements of a particular job. This does not mean that the Commission must determine whether age is an inherent requirement of the job. The approach to the meaning of based on is that set out in AMC v Wilson (1996) 68 FCR 46 and Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127, that is, the act must have occurred by reason of or by reference to the distinction or the distinction must be a material factor or the true basis for the act. The Commissions task is to determine whether the exclusion of persons over the age of 35 from the job of Administrative Officer is based on the inherent requirements of the job. The evidence reveals that most applicants present themselves for enlistment at the lower end of the age range and that many leave after some years of service. General Service Officers serve an average of 12 years. The ADF has a preponderance of youthful members. Some members of the ADF are older but evidence was given as to the decline with age in physical capacity. Evidence indicates that the 35 year limit is grounded in the inherent requirements of the job and, in particular, the physical rigours of the position. The respondent has determined that 35 years is the upper limit at which applicants can be expected to embark on training for ground combat operations at a bare base and embark on a career to maintain this level of fitness. The respondent has so determined based on its experience of training. The exclusion is based squarely on the inherent requirements of the job and does not constitute discrimination. For completeness, in correspondence of 26 November 1998 the respondent requested an opportunity to consider any psychological reports concerning Mr Barty if the Commission proposed to receive them. 5.3 Submissions of the complainant in reply The complainant elected not to make any submissions in reply. 6. Findings 6.1 Elements of discrimination One of the functions conferred on me by the Act is to inquire into any act or practice that may constitute discrimination (section 31(b) of the Act). Discrimination is defined in section 3 of the Act as follows: discrimination means: (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; or (d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. As previously noted, regulation 4(a) of the Human Rights and Equal Opportunity Commission Regulations declares any distinction, exclusion or preference made on the ground of age constitutes discrimination for the purposes of the Act. In deciding whether the matters complained of constitute discrimination within the terms of the Act I must therefore consider five main issues: whether there is an act or practice under the Act whether the act or practice arises in employment or occupation whether there was a distinction, exclusion or preference based on age whether the distinction, exclusion or preference nullified or impaired equality of opportunity or treatment whether the distinction, exclusion or preference in respect of the particular job was based on the inherent requirements of the job. 6.2 Whether there is an act or practice The respondent has not challenged the existence of a relevant act or practice. In considering whether there was an act or practice which could amount to discrimination by the respondent on the basis of age I make the following findings: Mr Barty applied for the position of Administrative Officer with the RAAF in April 1997. He made a written application dated 18 April 1997. Mr Barty turned 36 on 10 August 1997. The June 1997 Selection Board was cancelled. I do not find that this was due to anything other than valid operational reasons. The respondent refused to process Mr Bartys application in June 1997 because he would have exceeded the age limit at the March 1998 Selection Board. This was the next Selection Board which would be held. The maximum age for direct entry into the RAAF is 35 years of age. I accept that had Mr Barty attended the Selection Board he may not have been successful for reasons other than age. Nevertheless, the refusal to further process his application in June 1997 was an act based on his age. I find that the respondent in refusing to further process Mr Bartys application in June 1997 engaged in an act which could amount to discrimination. I further find that the respondents policy concerning the maximum age limit for the Administrative Officer position amounts to a practice within the meaning of the legislation. 6.3 Whether the act or practice arises in employment or occupation There is no issue raised as to whether the act or practice complained of arose in employment or occupation and I am satisfied that the act or practice complained of arises in employment or occupation. 6.4 Whether there was a distinction, exclusion or preference made on the ground of age The respondent has not argued that there is no distinction, exclusion or preference made on the ground of age. Mr Barty must establish that the treatment he experienced was a consequence of a distinction based on age. I am satisfied that this is the case. The relevant act is the refusal to process the complainants application in June 1997. This was explicitly done on the basis of the age the complainant would have attained at the time of the March 1998 Selection Board. The relevant policy is the maximum age of 35 for direct entrants into the ADF. This is a distinction on the ground of age. 6.5 Whether the distinction nullified or impaired equality of opportunity For an act or practice to be discriminatory, the Act requires the complainant to show that the distinction, exclusion or preference has had the effect of nullifying or impairing equality of opportunity or treatment. It is not disputed that the refusal to process Mr Bartys application on the basis of age nullified or impaired his entitlement to apply for the position. I find, therefore, that it nullified or impaired Mr Bartys equality of opportunity or treatment. 6.6 Whether the distinction, exclusion or preference was based on the inherent requirements of the job Not all distinctions, exclusions or preferences are discriminatory within the meaning of the Act. An employer may make a distinction, exclusion or preference on the basis of age where this distinction, exclusion or preference is based on the inherent requirements of the job. The respondent relies on this aspect of the definition of discrimination to argue that it has not discriminated against Mr Barty. I must therefore consider whether the distinction, exclusion or preference on the basis of age in respect of the job of Administrative Officer is based on the inherent requirements of the job. I have considered the evidence given in these proceedings and the argument of counsel for the respondent as to the inherent requirements. I do not take issue with the manner in which counsel has formulated the test concerning inherent requirements. That is, I agree that I cannot make a finding of discrimination in respect of a distinction, exclusion or preference (on the ground of age) which is based on the inherent requirements of the job. The respondent will succeed if the distinction based on age is in fact be based on the inherent requirements of the job of Administrative Officer. The respondent has not clearly indicated which requirements of the job it submits are inherent and which are not. It is clearly not every selection criterion or every element of a persons job which can constitute an inherent requirement for the purpose of the Act. In its submissions, the respondent has variously indicated that the inherent requirements involve the physical rigours of the position, the need to embark on initial training that would render [an applicant] fit for ground combat operations at a bare base and the need to embark on a career in which [the applicant] will be required to maintain that level of fitness. Despite the level of difficulty involved in ascertaining what may constitute an inherent requirement (see Qantas v Christie (1998) 152 ALR 365; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182) and the lack of precision in the respondents formulation, I am prepared to accept that it is an inherent requirement of the job of Administrative Officer to possess a level of combat fitness sufficient for ground combat operations to defend a bare base in the north of Australia. In making this finding, I have accepted the respondents evidence that it is an essential part of the job of Administrative Officer that the holder of the job be deployable in ground combat operations. This evidence was given in the context of the requirement for all members of the ADF to be deployable in this way and in the context of the shrinking size of the ADF, in particular, the RAAF. I have taken these structural and operational factors into account in determining that the level of combat fitness described above is an inherent requirement of the job. The question then becomes: can the distinction based on age be said to be based on these inherent requirements? I would answer this question in the negative. In my view, the critical matter is the possession by a person of a certain level of physical and medical fitness. This level is appropriately set in accordance with the requirement for deployment in combat. The ADF has medical and fitness tests which are designed and intended to be an adequate determinant of whether a person has the requisite level of fitness. Both Colonel Warfe and Wing Commander Johnston gave evidence as to the nature of the relevant tests. There was no suggestion in the evidence that the tests are incapable of detecting physical deterioration or medical problems. The medical and fitness standards are clearly based on the inherent requirement of the requisite level of combat fitness. The age exclusion, on the other hand, is not so based. It operates instead as a proxy for the possession of the required medical and fitness characteristics. In evidence, the respondent tendered studies to show the increased rate of injury and medical discharge for older persons in the defence forces. These studies indicate that on average older persons have higher rates of injury and medical discharge. In Bradley, Wilcox J drew specific attention to evidence which pointed to the difference between an average rate of performance and the performance of individuals. The only evidence that I have been presented with in this matter is evidence as to average performances. Indeed, I heard anecdotal evidence from a number of the respondents witnesses about persons who were over the age of 35 who were performing the relevant jobs and doing so to the required standard. In my view, I should apply the approach adopted by Wilcox J in Bradley. In that case, his Honour said: The term based on requires more than a logical link. The Macquarie Concise Dictionary gives, as the meaning of the verb base when followed by on or upon, to establish, as a fact or conclusion. So the distinction, exclusion or preference must be established upon the inherent requirements of the particular job. The correlation must be, at least, close. His Honour considered the analysis of Sackville J in AMC v Wilson (1996) 68 FCR 46 as to the meaning of based on. However, cases which have considered the meaning of the term based on in the context of establishing whether discriminatory conduct has occurred provide limited assistance in this case. With respect to beneficial legislation the meaning to be given to the phrase in the context of a defence is not necessarily the same as it would be in the context of establishing an element of discrimination. To the extent that the respondent relies on AMC v Wilson and Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127 for the proposition that an exclusion will be based on the inherent requirements of the job except where the inherent requirements are merely a subterfuge or a specious foundation, I do not accept this submission. In any event, Wilcox J has addressed this very issue. His Honour required a tight correlation between the inherent requirements of the job and the relevant distinction, exclusion or preference. His Honour made reference to the policy behind the legislative scheme and continued: If the words based on are so interpreted that it is sufficient to find a link between the restriction and the stereotype, as distinct from the individual, the legislation will have the effect of perpetuating the very process it was designed to bring to an end. So it is not appropriate to reason that because extreme fitness is an inherent requirement of a job of an SSO pilot and younger pilots tend to be more fit than older pilots, therefore the requirement for SSO pilots to be under 28 years of age on appointment is based on the requirement of fitness. Unless there is an extremely close correlation between the selected age and fitness requirement so that age may logically be treated as a proxy for the fitness requirement, the legislation will have the effect of damning individuals over the age of 28 years by reference to a stereo-typical characteristic (less physical fitness) of their age group. The respondents submissions rely on the inappropriate reasoning described by Wilcox J and, for the reasons he gave, I am unable to accept them. In so far as this argument is made, I do not accept that the maintenance of a level of combat fitness can be construed as a separate inherent requirement. At any point in time, the inherent requirement of the job is to have a particular level of fitness. It is up to the ADF to design a test, at sufficiently frequent intervals, to assess the maintenance of this fitness. I consider that maintenance of combat fitness is too vague and ill defined to constitute a requirement. Further, no one can be subject to a present requirement to do something which depends upon foreseeable or unforeseeable future contingencies. In any event, even if I were to accept that the maintenance of the fitness level could be an inherent requirement, for the reasons given above I would be of view that the age exclusion is not based upon it. The only other requirement which has any connection with the age exclusion is the criterion of adjustment to military life. This was not specifically raised by the respondent in submissions as constituting an inherent requirement but evidence was put before me of the age differentials within a peer group or rank and the need for acculturation into the defence forces. Even if I accept that this could constitute an inherent requirement of the job, for the reasons already given I do not think the age exclusion can be said to be based on this requirement. There are selection criteria for Administrative Officers involving suitability for military life. As a matter of logic, the ADF must have a method for assessing candidates against this criterion. The use of age as a proxy for the suitability for military life requirement has the same damning effect referred to by Wilcox J. The age distinction is not, therefore, based on the requirement for adjustment to military life. In summary, it may be that more persons over the age of 35 than below it fail to meet the admission standards into the ADF. However, these applicants are entitled to be assessed on their individual merits and, if they fail, to fail on the basis of their individual failure to meet specific medical or fitness or suitability standards that apply to all applicants and not because they fall within a stipulated age bracket, regardless of their ability to meet the other criteria. Applicants outside the stipulated age bracket who can meet the other selection criteria ought to be admitted for training and not excluded on the basis of an age distinction. For these reasons, I am not satisfied that the exclusion of all persons above the age of 35 years from employment as Administrative Officers in the RAAF is based on the inherent requirements of the job of Administrative Officer. Accordingly, I find that the acts and practices complained of by the complainant constitute discrimination in employment on the grounds of age. 7. Recommendations Having found the decision to reject the complainant's application discriminatory under the Act, I am required to consider what recommendations I should make. The Act does not make it unlawful to discriminate on the ground of age. However, the division of the Act under which I am conducting this inquiry is directed to the elimination of discrimination in employment and occupation. Section 35(2) expressly provides that, where an act or practice is found to constitute discrimination, the Commission may make such recommendations, including compensation, as it considers appropriate in relation to a person who has suffered loss or damage as a result. 7.1 Recommendation of compensation Mr Barty has submitted that the correct approach to the assessment of damages is that taken in the Bradley matter. The respondent has not taken issue with this. I propose therefore to apply the principles concerning compensation in the matter of Bradley and to make a recommendation for an award of compensation by way of general damages. Overall, awards of damage must be fair and reasonable in the circumstances of each case: Ritossa v Gray & Anor (1992) EOC 92-452. In these circumstances, I have concluded that the complainant's loss is the loss of the opportunity to be assessed on his individual merits. General damages can also include factors such as damages for humiliation, loss of dignity, injury to feelings and so on. I note that the complainant said that he suffered loss of self esteem and depression. In making a recommendation for an award of general damages, I do not find it necessary to consider further psychological evidence in this regard. The complainant was not a serving member of the ADF at the time of his application and did not have a career there. The rejection of his application, therefore, did not have the same consequence for him as discrimination based on age would have for a serving member of the ADF. Having taken into account all of these matters, I recommend that the complainant be awarded compensation for his loss as a consequence of the discrimination in the sum of $5,000. 7.2 Other recommendations I recommend that the upper age limit contained in the selection criteria for Administrative Officers in the RAAF be removed. 8. Notice of findings of the Commission The Commission finds that the act complained of by the complainant, namely that the respondent refused to process further his application for the position of Administrative Officer in the RAAF, and the practice complained of by the complainant, namely that the respondent enforced a maximum age of 35 for appointment as an Administrative Officer in the RAAF, constitute discrimination in employment based on age. 9. Reasons for findings 1. I find that following the cancellation of the June 1997 Selection Board the respondent engaged in an act of discrimination by not submitting Mr Bartys application to join the RAAF for processing. 2. I find that the failure to submit the application was based on a distinction, exclusion or preference on the ground of age which nullified or impaired the complainants equality of opportunity or treatment in employment or occupation. 3. I find that the distinction, exclusion or preference was not based on the inherent requirements of the job. 4. I further find that, by enforcing a policy of maximum age of entry into the RAAF for Administrative Officers, the respondent has engaged in a practice which is discriminatory on the ground of age. 5. This policy is based on a distinction, exclusion or preference on the ground of age which nullified or impaired the complainants equality of opportunity or treatment in employment or occupation. 6. The distinction, exclusion or preference contained in the policy was not based on the inherent requirements of the job. 10. Recommendations 1. The upper age limit contained in the selection criteria for Administrative Officer positions in the RAAF should be removed. 2. The respondent should pay to the complainant the sum of $5,000 being general damages. Dated at Sydney this 16th day of September 1999 _______________________________________ Chris Sidoti Human Rights Commissioner Endnotes  Human Rights and Equal Opportunity Commission Report into complaints of discrimination in employment and occupation: compulsory age retirement, HRC Report No.1, 30 August 1996.  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