It is for this reason that I would reject the appellant’s argument regarding the expression in par (c) of the definition of ‘based on’ The essence of that argument is that ‘discrimination’. ‘based on’ requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the object of Act’s promoting equality of opportunity in employment by, in effect, permitting the assessment of suitability for a particular job persons’ on grounds other than their individual merit. The nebulousness of notions of in this area makes it an inappropriate test for ‘logic’ discrimination.16 The Chief Justice further observed: In my view, the definition adopted by Wilcox J that is, as requiring a – connection that is or sits easily with the language of ‘tight’ ‘close’ – par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided.17 I also note the decision of the Northern Territory Anti-Discrimination Commission in Wall v Northern Territory Police.18 Northern Territory legislation prohibits discrimination on the basis of criminal In that ‘irrelevant record’. decision the complainant, Mr Wall, was convicted for theft when he was 19 years old and sentenced to a six month good behaviour bond. Twenty-five years later, he applied for a position as a police officer with Northern Territory Police. His application was rejected. One of the arguments raised by the Northern Territory Police was that Mr Wall was unable to meet a of the position that all police recruits ‘genuine occupational qualification’ maintain the integrity of the Northern Territory Police by being free of any adult criminal conviction. The Anti-Discrimination Tribunal rejected this submission, stating:
It is for this reason that I would reject the appellant’s argument regarding the expression ‘based on’ in par (c) of the definition of ‘discrimination’. The essence of that argument is that ‘based on’ requires no more than a logical link, with the result that the exclusion of a category of persons from a particular job will not be discriminatory under the Act if a logical link can be shown between that exclusion and the inherent requirements of the job. In my view, to interpret par (c) in this way would be to defeat the Act’s object of promoting equality of opportunity in employment by, in effect, permitting the assessment of persons’ suitability for a particular job on grounds other than their individual merit. The nebulousness of notions of ‘logic’ in this area makes it an inappropriate test for discrimination.16 The Chief Justice further observed: In my view, the definition adopted by Wilcox J – that is, as requiring a connection that is ‘tight’ or ‘close’ – sits easily with the language of par (c) and promotes the objects of the Act by closing a path by which consideration of individual merit may be avoided.17 I also note the decision of the Northern Territory Anti-Discrimination Commission in Wall v Northern Territory Police.18 Northern Territory legislation prohibits discrimination on the basis of ‘irrelevant criminal record’. In that decision the complainant, Mr Wall, was convicted for theft when he was 19 years old and sentenced to a six month good behaviour bond. Twenty-five years later, he applied for a position as a police officer with Northern Territory Police. His application was rejected. One of the arguments raised by the Northern Territory Police was that Mr Wall was unable to meet a ‘genuine occupational qualification’ of the position that all police recruits maintain the integrity of the Northern Territory Police by being free of any adult criminal conviction. The Anti-Discrimination Tribunal rejected this submission, stating: