'National origin' defined by federal court

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'National origin' defined by federal court

The term 'national origin' has been given a narrow definition by the Federal Court of Australia in an appeal against a decision of the Human Rights and Equal Opportunity Commission.

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The term 'national origin' has been given a narrow definition by the Federal Court of Australia in an appeal against a decision of the Human Rights and Equal Opportunity Commission.

 

Background

The employee was a Bulgarian National. He had migrated to Australia and within 12 months of being in the country had secured a position with the Department of Defence. The position was conditional on the basis that he: become an Australian citizen; pass a medical examination; and obtain the specified security clearance of 'Secret' (Commonwealth of Australia v Stam [1999] FCA 105 (18 February 1999)).

The employer dismissed the employee because he was unable to obtain the security clearance of 'Secret'. The Department was unable to conduct a security check on the employee because Bulgaria is a country where background checking is unable to be conducted. He was unable to achieve the appropriate clearance because he had what was described as an 'uncheckable' background.

The employee made a complaint of direct and indirect discrimination on the basis of race to the Human Rights and Equal Opportunity Commission. The Commission found in favour of the employee on both accounts.

 

Federal Court decision

The Federal Court of Australia set aside both findings of the Commission on the basis of an error of law. The Court found the Commission at first instance had misconstrued the term 'national origin'. The Court adopted the definition of 'national origin' as expressed in Macabenta v Minister for Immigration & Multicultural Affairs [1998] 385 FCA (21 April 1998):

"Over a lifetime, a person may acquire a number of different 'nationalities' which, depending on the legal regimes in force in any particular country, may be held successively from time to time or even simultaneously where States recognise dual nationality. In these circumstances it may often be a matter of substantial difficulty to determine the relevant nationality of a person for the purpose of a particular regulatory regime. On the other hand, the expression 'national origin' is a narrower concept and more readily determined because it is limited to 'origin', which is fixed at birth and incapable of change. In framing an International Convention and legislation to implement its provisions against the background of many different legal systems, there is much to be said for preferring a more specific criterion which can be more readily determined with greater certainty."

The Court held that the inability of the employer to be able to check the employee's security, did not refer to the employee's "place of birth or the national origin of his parents, but to the fact that he was a citizen of Bulgaria and had been living and working in Bulgaria before his arrival in Australia." The Court held that the employer refused the security clearance on the basis of the country the employee came from, not a "characteristic that arose at the time of his birth".

The Court held that the Commission made an error at law as it misinterpreted the term 'national origin' and did not adopt the narrow view taken by the Court.

The findings of direct and indirect discrimination were both set aside by the Court.

 

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