Commissioner of Corrective Services v Maxwell
[2001] NSWADTAP 21
•07/18/2001
Appeal Panel
CITATION: Commissioner of Corrective Services -v- Maxwell & anor (EOD) [2001] NSWADTAP 21 PARTIES: APPELLANT
RESPONDENTS
Commissioner of Corrective Services
Anthony Maxwell
Central Sydney Area Health ServiceFILE NUMBER: 009010 HEARING DATES: 23/10/2000 SUBMISSIONS CLOSED: 10/23/2000 DATE OF DECISION:
07/18/2001DECISION UNDER APPEAL:
Maxwell -v- Commisioner of Corrective Services & anor [2000] NSWADT 22BEFORE: Latham M - DCJ (Deputy President); Rees N - Judicial Member; Taksa L - Member CATCHWORDS: jurisdiction - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 991021, 991022 DATE OF DECISION UNDER APPEAL: 03/13/2000 LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Maxwell v Commissioner of Corrective Services & anor [2000] NSWADT 22
Kitt v Tourism Commission (1987) 11 NSWLR 686
Equal Opportunity Tribunal in Plumb and Thurkettle v Commissioner of Corrective Services (unreported, 25 August 1998)
Hart v Jacobs (1981) 39 ALR 209
Director-General of Education v Breen (1982) 2 IR 93
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Bropho v State of Western Australia (1990) 171 CLR 1
Qantas Airways Ltd v Christie (1998) 193 CLR 280
X v Commonwealth of Australia (2000) 74 ALJR 176
Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
IW v City of Perth (1997) 191 CLR 1
Waters v Public Transport Corporation (1991) 173 CLR 349
Australian Iron and Steel v Banovic (1989) 168 CLR 165
Craig v State of South Australia (1995) 131 ALR 595
In re Racal Communications Ltd (22)
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Kable v Director of Public Prosecutions (1996) 138 ALR 577
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245REPRESENTATION: APPELLANT
AMICUS CURIAE
T Anderson, barrister
RESPONDENTS
No appearance
J StoljarORDERS: 1. The decision of the Tribunal is affirmed; 2. Order 1 made by the Tribunal is affirmed; 3. Orders 2 and 3 made by the Tribunal are set aside.
A. Introduction
1 The Commissioner of Corrective Services (the Commissioner) has appealed against a decision by the Equal Opportunity Division of the Tribunal (the Tribunal), made on 13 March 2000, that the Commissioner had discriminated against Mr Anthony Maxwell on the ground of his disability in failing to appoint him to the position of Assistant Superintendent Industries (Corcover, Upholstery), referred to as position no. 97/MO88, within the Department of Corrective Services.2 As well as finding that Mr Maxwell's complaint of discrimination on the ground of disability was substantiated, the Tribunal made the following orders for relief:
3 Mr Maxwell had also lodged a complaint of discrimination on the grounds of disability against the Central Sydney Area Health Service, which, through the auspices of HealthQuest, had provided advice to the Commissioner about Mr Maxwell's medical fitness for position no 97/MO88. The Tribunal found that the complaint against the Central Sydney Area Health Service was not substantiated and, accordingly, it dismissed that complaint. As that finding and the order dismissing the complaint against the Central Sydney Area Health Service were not challenged in this appeal they stand.
(1) The first respondent pay to the applicant within 21 days of the date of judgment, damages in the sum of $40,000.
(2) The first respondent conduct a full and proper risk management assessment of the position as to the inherent requirements of ASI no 97/MO88 within six weeks of the date of judgment.
(3) The first respondent assess the applicant for the position in accordance with the findings of that inquiry within four weeks of the date the risk management assessment referred to above is received by the first respondent.4 The Commissioner has appealed against the Tribunal’s decision pursuant to section 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The Tribunal's decision is clearly an "appealable decision" within the meaning of that term in Chapter 7 Part 1 of the Tribunal Act. As the Commissioner has appealed on questions of law alone the appeal is to be determined in accordance with section 114 of the Tribunal Act which states:
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
B. History of the proceedings
- 5 The Commissioner filed a Notice of Appeal on 31 March 2000 in which he sought a stay of the Tribunal's orders pending the determination of the appeal. That application was heard and determined on 7 April 2000. Following argument by Ms Anderson for the Commissioner and Mr Hillard for Mr Maxwell, we directed that the operation of the Tribunal's orders numbered 2 and 3 (reproduced in paragraph 2, above ) be stayed pending determination of the appeal. No direction was made in relation to the Tribunal's first order concerning the payment of $40,000 in damages but we noted Mr Maxwell's undertaking, given by his solicitor Mr Hillard, to repay to the Commissioner the sum of $40,000 in the event that the appeal was successful and the order was set aside. The appeal was set down for hearing on 7 July 2000.
6 As foreshadowed during the stay application, the Commissioner filed an Amended Notice of Appeal on 7 April 2000. On 30 May 2000 Mr Hillard wrote to the Registrar of the Tribunal to advise of the following:
- (1) Mr Maxwell was appointed by the appellant to the permanent position of Assistant Superintendent - Industries (Corcover) Silverwater Correctional Complex, Position no. 97/MO88 on 29 May 2000;
(2) Mr Maxwell does not wish to enforce the orders made by the Tribunal on 13 March 2000; and
(3) Mr Maxwell does not oppose the appeal being upheld and the decision of the Tribunal of 13 March 2000 being set aside.
- We act for the Physical Disability Council of New South Wales (the Council). The Council's mission is to provide a representative voice for people with physical disabilities. Among other activities, the Council makes submissions to government, business and community groups on issues of concern to people with physical disabilities. The Council is funded primarily by the NSW Ageing and Disability Department.
The Council has closely monitored proceedings No 991021 between the Department of Corrective Services (the Department) and Anthony Maxwell before the Equal Opportunity Division of the Administrative Decisions Tribunal. The Council is of the view that the decision of the Equal Opportunity Division made on 13 March 2000 is correct, that it raises important points of principle for the disabled community represented by the Council, and that it should be upheld on the appeal which has been brought by the Department.
The Council is therefore concerned to learn that the Registrar has been advised that, following Mr Maxwell's appointment by the Department to the permanent position which was the subject of the proceedings before the Tribunal, Mr Maxwell:
- (a) does not wish to enforce the orders made by the Tribunal on 13 March 2000; and
(b) does not oppose the appeal being upheld and the decision of the Tribunal of 13 March 2000 being set aside.
In the absence of a participating Respondent, the Council wishes to appear in the appeal as amicus curiae . That is, the Council wishes to assist the Appeals Division by making submissions in support of the first-instance decision on behalf of an interest that would not otherwise be adequately represented by the parties. Gilbert & Tobin has agreed to provide that representation on a pro bono basis in the public interest.
- I am an employed solicitor at the NSW Disability Discrimination Legal Centre (Inc) (DDLC) and I have carriage of this matter. DDLC is the only legal organisation in NSW whose sole purpose is to represent people with disabilities.
The purpose of this letter is to make an application to be heard as Amicus Curiae in the appeal of Commissioner of Corrective Services v Maxwell which is listed for hearing on 7 July 2000. The Registry advised me to write to you about this matter.
We understand that an appeal has been lodged by the 1st Respondent in the matter of Maxwell v Commissioner of Corrective Services & anor [2000] NSWADT 22 which was heard by a Tribunal sitting in the Equal Opportunities Division on 3/11/99 and 5/11/99, the decision being handed down on 13 March 2000. We also understand that the complainant, Mr Maxwell will not be contesting the appeal and does not intend to appear before the Appeal Panel. As you may already be aware Mr Maxwell was represented before the Tribunal by David Hillard of Clayton Utz solicitors.
In our view, "the decision" in Maxwell v Commissioner of Corrective Services & anor [2000] NSWADT 22 creates an important precedent in the area of disability discrimination law with respect to the obligations of the NSW Public Service in its employment practices.
10 In view of Ms Anderson's submissions we were able to make procedural directions by consent without determining the issue of the Appeal Panel's power to order that a person be heard as amicus curiae. Ms Healy withdrew her application and, by consent, we directed that the Physical Disability Council of NSW be heard as amicus curiae on the hearing of the appeal. The Commissioner and the Physical Disability Council of NSW were directed to file and exchange written submissions.
11 At the hearing of the appeal Ms Anderson appeared for the Commissioner and Mr Stoljar appeared for the Physical Disability Council of NSW. Mr Maxwell's solicitor, Mr Hillard, was present throughout the hearing of the appeal, but played no active role.
C. The grounds of appeal
12 The Commissioner set out 16 grounds of appeal in the Amended Notice of Appeal. All of the grounds were relied upon in the appeal, which was limited to questions of law. As we understood the arguments advanced by Ms Anderson for the Commissioner, those 16 appeal grounds represented four broad propositions which indicated that the Tribunal had fallen into legal error. Those four propositions were that the Tribunal should have dismissed the complaint of discrimination on the ground of disability and not ordered the relief that it did because:
- (a) A proper construction of the relevant law governing appointment to the position for which Mr Maxwell had applied leads to the conclusion that the Commissioner could not have acted in breach of the disability discrimination provisions of the Anti-Discrimination Act 1977 (the Act) because the Correctional Centres Act 1952 , the Public Sector Management Act 1988 and the Public Sector Management (General) Regulation 1996 (the public service legislation) together constitute special legislation governing the appointment in question thereby rendering the general disability discrimination provisions of the Act inoperative in this instance. Further, the decision not to appoint Mr Maxwell to the position in question was not made on the ground of his disability but on the ground of his failure to satisfy the health assessment required by the public service legislation (Appeal Grounds 2,3,4,5,6,9 and 10).
(b) In the alternative, that if the public service legislation is not special legislation which renders the relevant provisions of the anti-discrimination statute inoperative, the impugned actions of the Commissioner were not in breach of the relevant disability discrimination provisions of the Act because those actions fell within the general exceptions to the operation of the Act found in section 54 (1)(a) and (b) (Appeal grounds 2 and 7).
(c) Further, and in the alternative, that if the disability discrimination provisions of the Act apply to the impugned actions of the Commissioner, the defence set out in section 49D(4) of the Act was made out in this case (Appeal grounds 7, 8 11, 12, 13, 14 and 15).
(d) The relief ordered by the Tribunal was beyond power and denied the Commissioner procedural natural justice (Appeal 1, 16)
14 The respondent also submitted that were we to find any error of law on the part of the Tribunal we were required, at law, to set aside the Tribunal's decision and orders and make consequential orders pursuant to section 114 of the Tribunal Act.
D. The Tribunal's findings
- 15 In order to deal appropriately with the four broad propositions advanced by the Commissioner we should briefly summarise the Tribunal's findings and, in the course of doing so, refer to some of the relevant statutory provisions. As this appeal is limited to questions of law we can (except in relation to Appeal Ground number 11 which alleges that there was no evidence to support a finding of fact) simply re-state and rely upon the Tribunal's findings of fact.
16 The Tribunal found that in October 1997 Mr Maxwell applied for the position of Assistant Superintendent Industries (Corcover, Upholstery), identified as position number 97/MO88, within the Department of Corrective Services. This position was based at the Silverwater Correctional Centre. Mr Maxwell had previously worked for the Department of Corrective Services from March 1987 until March 1996 with a break of approximately 8 months in 1988-89. Mr Maxwell resigned from his employment with the Department in March 1996 in order to care for his sick wife. By October 1997 Mrs Maxwell's health had improved sufficiently for Mr Maxwell to contemplate a return to work with the Department. The Silverwater position for which Mr Maxwell applied in October 1997 was essentially the same, in terms of duties, as the positions which he had held at Parklea and Parramatta Correctional Centres between 1990 and 1996.
17 The Tribunal found that the position for which Mr Maxwell applied was an "industrial officer" position. It stated that this term should be used "to describe correctional officers who are usually employed in the prison workshop and whose primary responsibility is the occupational training of inmates" (paragraph 13). As that definition makes clear, an "industrial officer" is also a "correctional officer" and, as a consequence, an "industrial officer" is required to undertake custodial duties, which comprises the direct supervision of prisoners without the assistance of custodial officers. Position number ASI No 97/MO88 was found to be a senior management position with responsibility for managing physical, financial and human resources, but with minimal frontline custodial duties. The Tribunal concluded that "full custodial duties would represent a very small proportion of the duties undertaken by industrial officers" (paragraph 84).
18 Mr Maxwell was interviewed for position no ASI No 97/MO88 in December 1997 and he was the successful and recommended candidate. He was offered the position, subject to completing a medical assessment. This assessment, which was conducted by Dr Mahadev of HealthQuest, took place on 20 January 1998. HealthQuest advised the Department of Corrective Services that Mr Maxwell was unfit for the duties of the position. The report stated that Mr Maxwell was considered unfit for the full range of custodial duties of a correctional officer because of his reduced uncorrected vision, but his corrected vision was acceptable for the duties of an Assistant Superintendent Industrial Upholstery supervising low security prisoners in an industrial setting, provided that there was little risk of his glasses being dislodged.
19 At the HealthQuest examination Mr Maxwell's uncorrected vision was found to be 6/24 in both eyes, with his corrected vision being 6/6 in both eyes. The minimum standard required for correctional officers was no worse than 6/12 in the weaker eye uncorrected. The Tribunal found that this visual acuity standard had been determined by HealthQuest following a detailed assessment in 1993 of the work performed by correctional officers. Following the advice from HealthQuest to the Department, Mr Maxwell was informed by letter from the Department, dated 5 March 1998, that he would not be appointed to the position in question because "HealthQuest has stated that you are considered unfit for the full range of custodial duties as a Correctional Officer because of your reduced uncorrected vision". The letter also stated that "decisions of HealthQuest are legally binding on this Department".
20 Mr Maxwell subsequently lodged a complaint with the President of the Anti-Discrimination Board in which he claimed discrimination on the ground of his disability. As conciliation was not successful the President referred the complaint to the Tribunal. Following a hearing in November 1999 the Tribunal found the complaint substantiated and made the orders which have been reproduced in paragraph 2 of these reasons.
21 It was not in dispute before the Tribunal that the Commissioner was an employer for the purposes of a complaint under the Act. By virtue of section 4B(1)(a) of the Act an employer, in relation to employment in a Department, is the relevant Department Head. The terms "Department" and "departmental Head" are defined to have the same meaning as they have in the Public Sector Management Act 1988. Pursuant to sections 9 and 10 and Schedule 1 of that Act the Commissioner is the Department Head of the Department of Corrective Services. It was also not in dispute that Mr Maxwell had a "disability" within the meaning of the Act.
22 The Tribunal found that the Commissioner had contravened section 49D(1)(b) of the Act when he determined not to appoint Mr Maxwell to position no 97/MO88. Section 49D(1)(b) provides that it is unlawful for an employer to discriminate against a person on the ground of disability in determining who shall be offered employment. Discrimination on the ground of disability is defined in section 49B of the Act. The Commissioner's actions were found to constitute direct discrimination, which is defined in section 49B(1)(a).
23 The Commissioner defended the complaint of discrimination on the ground of disability on three broad bases. First, in keeping with the reasoning of the Supreme Court in Kitt v Tourism Commission (1987) 11 NSWLR 686 and the former Equal Opportunity Tribunal in Plumb and Thurkettle v Commissioner of Corrective Services (unreported, 25 August 1998), the Commissioner argued that Mr Maxwell was not denied appointment to the position in question on the ground of his disability, but because of his failure to satisfy the health assessment which was a statutory pre-condition to appointment as an officer in the public service. Consequently, according to the Commissioner, section 49D(1)(b) of the Act simply did not apply to this case. Secondly, and in the alternative, it was argued that if section 49D(1)(b) did apply to the appointment in question, the actions of the Commissioner fell within section 54(1)(b) of the Act, which provides that the Act does not render unlawful anything done by a person if it was necessary for the person to do the act in order to comply with a requirement of a regulation. The Commissioner argued that it was necessary for him to decline to appoint Mr Maxwell to the position in question in order to comply with clause 6 of the Public Sector Management(General) Regulation 1996. Thirdly, and in the alternative, it was argued that if section 49D(1)(b) did apply to the appointment in question, and if the exception provided for in section 54(1)(b) did not apply, the case fell within the exception set out in section 49D(4) of the Act as Mr Maxwell was unable to perform the inherent requirements of the position for which he had applied.
24 The Tribunal rejected all three arguments and found the complaint substantiated. Mr Maxwell was awarded $40,000 damages. This was the sum which he had sought in his Points of Claim. The Tribunal found that had Mr Maxwell been appointed to the position in question in February 1998 his net economic loss until the date of hearing was $50,000. As the Tribunal may not make an award of damages in excess of $40,000 (see section 113(1)(b)(i) of the Act), this was the sum which the Commissioner was ordered to pay. Mr Maxwell had also sought an order that he be appointed to the position of Assistant Superintendent of Industries at Silverwater. The Tribunal declined to make this order because of its concerns about the legislatively mandated pre-appointment health assessment. Instead, it ordered the Commissioner to conduct " a full and proper risk management assessment of the position as to the inherent requirements of ASI no 97/MO88". Once the assessment was carried out the Commissioner was ordered to "assess the applicant for the position in accordance with the findings of that inquiry". These orders had not been sought by Mr Maxwell and nor had they been raised with the parties during the course of the inquiry.
E. The effect of the relevant public sector legislation
- 25 It was not in dispute that in February and March 1998, when the Commissioner declined to recommend that Mr Maxwell be appointed to position no 97/MO88, the appointment was governed by sections 30 and 31 of the Correctional Centres Act 1952 (now repealed), Division 4 of Part 2 of the Public Sector Management Act 1988 and Part 2 of the Public Sector Management (General) Regulation 1996.
26 Section 30 of the Correctional Centres Act 1952 relevantly provided that “all correctional officers shall be appointed or employed under and subject to the provisions of the Public Sector Management Act 1988". Section 30A provided for two classifications of correctional officers: commissioned correctional officers and non-commissioned correctional officers. Whilst the position in question was a commissioned one, nothing of substance appears to turn on this point. Section 31 gave the Commissioner the power to determine the duties of correctional officers, subject to section 30.
27 Division 4 of Part 2 of the Public Sector Management Act 1988 deals with appointments to the NSW public service. As the cross-reference in section 30 of the Correctional Centres Act 1952 indicates, appointments to Department of Corrective Services are appointments to the NSW public service (see the definition of "public service" in section 5 of the Public Sector Management Act 1988 and Schedule 1 to that Act). There are various ranks with the NSW public service. The position for which Mr Maxwell had applied was as an “officer”. Appointments at the officer level are made by the Governor, on the recommendation of the relevant Department Head, whose decision must be based on merit (see sections 25 and 26).
28 Section 102 of the Public Sector Management Act 1988 is a grant of power to the Governor to "make regulations, not inconsistent with this Act". Pursuant to section 102(2)(a), regulations may be made "providing for the medical examination and standards of medical fitness for the appointment of persons to positions in the public service". At the time the relevant events in this case took place the regulations in force were the Public Sector Management (General) Regulation1996 (the 1996 Regulation). Clause 6 of that Regulation is headed, "Pre-placement health assessments". The 1996 Regulation had repealed and replaced the Public Sector Management (General) Regulation 1988 (the 1988 Regulation). Clause 7 of that Regulation was also headed “Pre-placement health assessments."
29 As they are of significance in this appeal, both clause 6 of the 1996 Regulation and clause 7 of the 1988 Regulation should be set out in full. The Tribunal mistakenly referred to clause 7 of the 1988 Regulation as being the operative provision when, in fact, clause 6 of the 1996 Regulation was in force at the time the events in this case took place. Clause 6 of the 1996 Regulations states:
- (1) A person may not be appointed to an officer's position before the person's fitness to carry out the duties of the position has been confirmed by a health assessment.
(2) Fitness to carry out duties includes the ability to carry out those duties without endangering the health and safety of the public, of other persons employed in the Department and of the person concerned.
(3) The health assessment is to be in the form considered necessary by the appropriate Department Head.
(4) That form may include (but is not limited to) any one or more of the following:
(a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make the person unfit to carry out the duties of the position,
- (b) a medical examination by a medical practitioner approved by the Department Head,
(c) an examination by a medical practitioner, an optometrist or other appropriately qualified health care professional, approved by the Department Head, of a particular aspect of the person's health likely to detrimentally affect the person's capacity to carry out the duties of the position.
(5) The appropriate Department Head is to give the health care professional providing a health assessment referred to in subclause (4) (c) any requested information about the duties of the position concerned that is reasonably required for the purpose of providing the assessment.
(6) The clause does not limit any requirements made by the appropriate Department Head with respect to health assessments of persons employed as temporary employees.
- (1) A person may not be appointed to an officer's position before his or her fitness to carry out the duties of the position has been confirmed by a health assessment.
- (2) The health assessment is to be in the form considered necessary by the appropriate Department Head. This may include (but is not limited to) any one or more of the following:
(a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make him or her unfit to carry out the duties of the position;
(b) a medical examination by a medical practitioner approved by the Department Head;
(c) an examination by a medical practitioner, an optometrist or other appropriately qualified health care professional, approved by the Department Head, of a particular aspect of the person's health likely to detrimentally affect his or her capacity to carry out the duties of the position.
31 Ms Anderson argued, both before the Tribunal and before us, that the public service legislation was special legislation governing the appointment to position no 97/MO88 which rendered the relevant general legislation, section 49D(1)(b) of the Act, inoperative. She also argued that as the Commissioner declined to recommend that Mr Maxwell be appointed to the position in question because he failed to satisfy the health assessment carried out pursuant to clause 6 of the 1996 Regulation, this did not constitute discrimination on the ground of disability for the Commissioner merely acted in accordance with the public service legislation which governed the appointment.
32 Ms Anderson cited both Kitt v Tourism Commission (1987) 11 NSWLR 686 and Plumb and Thurkettle v Commissioner of Corrective Services (unreported, 25 August 1998) as authorities for these propositions.
33 Kitt was concerned with the interaction between public service legislation, which has since been repealed, and the provisions in the Act concerning discrimination on the ground of physical impairment, which have also been repealed and replaced. In that case the complainant had applied for a permanent position in the NSW public service. His application was refused on medical grounds. Section 66 of the Public Service Act 1979 provided that:
- A person is not eligible for permanent appointment to the public service unless he satisfies a medical examination as to his health, as provided for by the regulations.
34 Lee J determined that there was no valid regulation in force concerning the medical examination required by section 66 of the Public Service Act 1979 . Despite this gap in the legislative scheme concerning appointments to the NSW public service, Lee J found that passing a medical examination required by section 66 was a mandatory pre-condition to permanent appointment in the NSW public service. His Honour concluded that a decision by a Department Head not to appoint a person to a permanent position in the NSW public service, because that person had failed the medical examination required by section 66, could not constitute unlawful discrimination on the ground of physical impairment because a finding that the physical impairment provisions of the Act governed the appointment in question would render the special and mandatory requirement found in section 66 of the Public Service Act 1979 of no effect. Lee J reached this conclusion without reliance upon section 54(1) of the Act which provides a general exception to the strictures of the Act for actions performed under statutory authority.
35 The core of Lee J's reasoning in Kitt is found in the following passages (at pp 691-692):
- The reason why s 66 would operate to exclude from admission to the Public Service any applicant who failed to pass the examination required by the section irrespective of s 49Q of the Anti-Discrimination Act is that s 66 is a special provision applying to all applicants for permanent appointment in the Public Service, and the provisions of the Anti-Discrimination Act cannot override it so as to render it nugatory. If the two acts are inconsistent in their provisions as to appointment to positions in the Public Service then the maxim "generalia specialibus non derogant" would apply to preserve the operation of s 66. But I do not think that there is inconsistency. Whilst ever the plaintiff could not show that he had become eligible for appointment pursuant to s 66, he could not be appointed to a permanent position because the section states that he could not. A Head of Department (who as I have already said is required by s 4(7) to be treated as the employer under the Act) who declines to recommend for appointment to a permanent position ( Public Service Act , s 61) a person who has not presented for or who has failed to pass an examination pursuant to s 66 cannot be guilty of discrimination under the Act, whether the sections of the Act relating to physical impairment (Pt IVA) or intellectual impairment (Pt IVB) are relied upon......
The determination of the Head of a department not to appoint an applicant who has not passed the medical examination is not on the ground of physical or intellectual impairment but on the ground that the applicant is not in law eligible for appointment under s 66: cf Hart v Jacobs (1981) 39 ALR 209; Director-General of Education v Breen (1982) 2 IR 93 and Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. The Head of the department plays no part in the medical examination to which s 66 applies and, by implication, is required by the terms of the section to act upon the decision made in respect of the examination when properly communicated to him. He cannot substitute his own opinion for that of the person making the decision on the examination.......
It follows from what has been said, that even if s 54(1) were not in the Act, neither the Department nor the Tourism Commission could be held guilty of an unlawful act of discrimination under s 49Q(1)(b) referable to a refusal to appoint the plaintiff to a permanent position, contrary to s 66. The ineligibility of the plaintiff to be appointed would persist whilst ever he had not "satisfied" the examination required by s 66. Section 54(1), so far as the present proceedings are concerned, need not therefore be further noticed.
37 The case was ultimately decided on the basis of issues which are of no relevance to this case. The complainants conducted their case on the basis that the relevant substantive provision in the Act was section 49D(2), which prohibits discrimination by an employer, against its employees, on the ground of disability. For reasons to do with the structure of the Public Sector Management Act 1988 the Tribunal concluded that the case should have been conducted pursuant to section 49D(1), which prohibits discrimination by an employer against applicants for employment on the ground of disability. Whilst it was unnecessary for the Tribunal to determine the matter, it went on to consider the argument made by the Commissioner that the decision in Kitt dictated a finding that there was no discrimination on the ground of disability. The Tribunal accepted this argument and stated (at page 17):
- If the Tribunal follows Kitt , it would hold the refusal of employment came about because the Commissioner was unable to offer employment to any person who had not had his or her fitness to carry out the duties of the position confirmed by health assessment. This the Tribunal would propose to do.
- (a) failed to properly construe and/or apply clause 6 of the 1996 Regulation (Appeal Ground 3).
(b) failed to hold that the provisions of the 1996 Regulation prevented the Commissioner from appointing Mr Maxwell (Appeal Ground 4)
(c) failed to hold that the general provisions of section 49D(1) of the Act are subject to (and must give way to) the special provisions of clause 6 of the 1996 Regulation (Appeal Ground 5)
(d) made findings and orders which are inconsistent with and/or contrary to the provisions of clause 6 of the 1996 Regulation (Appeal Ground 6)
(e) failed to properly construe and/or apply the Correctional Centres Act 1952 and/or the Prisons (Administration) Regulation 1995 (Appeal Ground 9)
(f) failed to address a relevant question being whether Mr Maxwell's fitness to carry out the duties of the position had been confirmed by a health assessment required by clause 6 of the 1996 Regulation and/or whether the Commissioner was entitled to appoint Mr Maxwell to the position and, as a consequence, whether the Commissioner's failure to appoint Mr Maxwell to the position could constitute unlawful discrimination within the meaning of the Act (Appeal Ground 10).
40 The effect of the relevant public service legislation, and its interaction with the prohibition in section 49D(1)(b) of the Act against discrimination on the ground of disability by employers when making hiring decisions, necessitates consideration of the purpose of both pieces of legislation, as well as a close examination of the relevant statutory provisions (see section 33 Interpretation Act 1987 and Bropho v State of Western Australia (1990) 171 CLR 1). This is the exercise which was undertaken by Lee J in Kitt, albeit producing a different result.
41 This is not a case in which we can simply apply the decision in Kitt to the circumstances of this case and arrive at the correct outcome because since Kitt was decided both the public service legislation and anti-discrimination legislation have changed. Further, and most importantly, the High Court has recently delivered a number of decisions concerning the interpretation of anti-discrimination laws. The most significant cases for present purposes are Qantas Airways Ltd v Christie (1998) 193 CLR 280 and X v Commonwealth of Australia (2000) 74 ALJR 176. Both of those cases, which were not available to Lee J when he decided Kitt, throw considerable light upon the manner in which legislative provisions, such as those under consideration in this case, should be interpreted and applied.
42 Before proceeding to set out our conclusions about the effect of the relevant public service legislation, and its interaction with the disability discrimination provisions of the Act, we should briefly consider our legal authority to undertake this task, for in order to effectively determine this case we believe it is necessary to make extensive comments about the meaning and effect of clause 6 of the 1996 Regulation, as well as the Commissioner’s compliance with that Regulation.
43 The Equal Opportunity Division of this Tribunal may exercise jurisdiction in relation to those matters where, by statute, it is given power to do so. In this case the Tribunal conducted an inquiry under section 95 of the Act following a reference of a complaint to the Tribunal by the President of the Anti-Discrimination Board, acting pursuant to section 94(1) of the Act. In Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26 all members of the Court of Appeal clearly indicated that the former Equal Opportunity Tribunal had the power to determine all relevant questions of law which must be decided in order to properly determine a complaint made pursuant to the Act and referred to the Tribunal for inquiry. We propose to undertake this exercise in this appeal in order to determine whether the Tribunal made errors of law when it decided that the Commissioner was bound to comply with the disability discrimination provisions of the Act, as well as the relevant public service legislation, when considering whether to recommend Mr Maxwell's appointment to position no 97/MO88.
44 The Public Sector Management Act 1988, and the Regulation made pursuant to that Act, establish a scheme governing employment in the NSW public service. Appointments to the position in question in this case, which was at the “officer” level, are governed by Division 4 of Part 2 of the Public Sector Management Act 1988. Pursuant to section 25 of that Act, appointments at the officer level are made by the Governor, on the recommendation of the relevant Department Head. Recommendations to the Governor are to be made by the relevant Department Head, acting pursuant to section 26. The Department Head must recommend the applicant with the greatest merit from among the applicants who are eligible for appointment to the vacant position (see section 26(2)). When determining merit the Department Head must act in accordance with section 26(1) which states:
- (1) A Department Head shall, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, have regard to:
- (a) The nature of the duties of the position, and
(b) The abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.
45 There is no true equivalent of section 66 of the Public Service Act 1979 in the Public Sector Management Act 1988. As Lee J pointed out in Kitt, passing the medical examination required by section 66 was a pre-condition to employment in the NSW public service. That medical examination was one in which the Department Head played no part. It was a general medical examination which all applicants for permanent appointment in the public service were required to pass (see Lee J's remarks in Kitt, reproduced at paragraph 35 of these reasons). Because it was a general medical examination the Department Head had no capacity to stipulate the functions and duties of a particular position and then arrange for a medical examination to determine whether an applicant for appointment could perform those functions and duties.
46 The Public Sector Management Act 1988 says nothing about pre-appointment medical examinations, except for the reference in section 102(2)(a) to the fact that the regulations may make provision for "the medical examination and standards of medical fitness for the appointment of persons to positions in the public service". That regulation making power must be read subject to section 102(4), which stipulates that "The regulations are not capable of altering or affecting any duty that is required to be performed by or under any Act."
47 Clause 6 of the 1996 Regulation bears only passing similarity to s 66 of the Public Service Act 1979. Sub-clause (1) prohibits appointment before fitness to carry out the duties of the position have been confirmed. To put it another way, it speaks of eligibility for appointment, but it is eligibility by reference to the duties of the particular position, not eligibility for appointment to a position at large within the public service. The context within which the language is used is vital. Courts and tribunals must seek to give effect to the purpose of legislation (Bropho v State of Western Australia (1990) 171 CLR 1).
48 In this instance, bearing in mind both context and purpose, it seems clear that the effect of clause 6(1) is that a Department Head must not make a recommendation to the Governor that a person be appointed as an officer in the public service unless that person is fit to carry out the duties of the position which he/she will occupy, and the fact of that fitness has been confirmed by a health assessment. The other sub-clauses in clause 6 of the 1996 Regulation exist in order to facilitate the directive in sub-clause (1).
49 Sub-clause (2) is, in effect, an avoidance of doubt provision. It records the common law rule that, express agreement to the contrary, there is an implied term in every contract of employment that an employee must be able to exercise reasonable care and skill, and thus not injure fellow employees, and others, when performing his or her duties (see McHugh J in X v Commonwealth (2000) 74 ALJR 176 at 181). Accordingly, when considering a person's fitness to perform the duties of the position for which he/she has applied, the Department Head must turn his/her mind to the issue of whether the applicant is able to perform those duties without endangering the public, fellow employees and the applicant him or herself.
50 Sub-clause (3) provides that the relevant Department Head is responsible for determining the form which the pre-appointment health assessment should take. Sub-clause (4) describes some acceptable forms of health assessment, but does not limit the form which the assessment may take. One of those forms is relevant in this case. Sub-clause (4)(b) provides that there may be "a medical examination by a medical practitioner approved by the Department Head". Pursuant to sub-clause (4)(c), the Department Head may request a health care professional to consider whether there is a particular aspect of the applicant's health which may detrimentally affect the applicant's capacity to carry out the duties of the position. Sub-clause (5) is facilitative of sub-clause (4)(c). If the Department Head decides to seek a "specialist" assessment of the applicant, the Department Head is required to give the health professional performing the assessment any information about the duties of the position which may be reasonably required. On one view, this sub-clause may have been included in order to cast aside any doubt that the Department Head may be in breach of a duty of confidence in providing detailed information about the duties of particular positions to health professionals outside of the public service. However, when it is read together with the preceding sub-clauses, it clearly demonstrates a legislative intention to make the particular duties of the position the touchstone for the purposes of eligibility for appointment. Sub-clause (6), which is of no relevance for present purposes, provides that any requirements made by the Department Head pursuant to clause 6 (which governs "officers") do not limit any health assessment requirements made by the Department Head in relation to another category of employee, "temporary employees".
51 Viewed as a whole, and read in the context of the scheme created by the Public Sector Management Act 1988, clause 6 of the 1996 Regulation imposes important obligations upon, and grants significant powers to, Department Heads. The Department Head must communicate relevant details of the duties of the position so that a meaningful assessment of eligibility may be made. The Department Head must determine the form which the health assessment should take. The Department Head must be satisfied as to the outcome of the pre-appointment health assessment before he/she makes a recommendation to the Governor pursuant to sections 26(3) of the Public Sector Management Act 1988. These requirements are consistent with the Department Head’s obligation to consider the nature of the duties of the position, as well as the personal attributes of applicants, when determining merit pursuant to section 26(1).
52 The Department Head’s relevant obligations and powers are no different under the 1996 Regulation to what they were when clause 7 of the 1988 Regulations was in force. We have, earlier, explained the differences between the two provisions (see paragraph 30). The lack of an equivalent to clause 6(2), (5) and (6) of the 1996 Regulation, in clause 7 of the 1988 Regulation, did not alter, in any relevant way, the Department Head’s obligations and powers when conducting pre-appointment health assessments, and when determining which course to follow once a health assessment had been performed. As we noted in paragraphs 49 and 50, clause 6(2) of the 1996 Regulation is an avoidance of doubt provision. Clause 6(5) is a grant of power to Department Heads, which they have by implication anyway pursuant to clause 6(3) and (4), the purpose of which may be to overcome breach of confidence concerns. Clause 6(6) is also an avoidance of doubt provision which is of no relevance in this case. Thus, the Tribunal made no error of substance when it continually referred to clause 7 of the 1988 Regulation as being the statutory provision which governed pre-appointment health assessments in this case.
53 At the time Kitt was decided, Part IVA of the Act dealt with discrimination on the ground of physical impairment and Part IVB of the Act dealt with discrimination on the ground of intellectual impairment. Those parts of the Act have since been repealed by the Anti-Discrimination (Amendment) Act 1994 which introduced a new Part 4A headed, “Discrimination on the ground of disability”. Since Kitt the Commonwealth parliament has enacted the Disability Discrimination Act 1992. The existence of that Act, and the High Court’s interpretation of particular provisions in that Act which are couched in the same language as relevant provisions in Part 4A of the NSW Act, aid the resolution of this case.
54 Part 4A of the Act renders it unlawful, subject to exceptions, to discriminate against people on the ground of disability in certain aspects of public life, including employment. By virtue of section 49D(1)(b) of the Act it is unlawful for an employer to discriminate against a person on the ground of disability in determining who should be offered employment. The word “disability” is defined broadly in section 4 of the Act and it is given an extension beyond the manner in which it may be used in everyday speech by section 49A. For present purposes nothing more need be said about the definition of “disability” for it was agreed between the parties that Mr Maxwell’s impaired visual acuity constituted a “disability” within the meaning of the Act. The concept of “discrimination on the ground of disability” is defined (or perhaps more accurately, explained) in section 49B of that Act. That section refers to the concepts of direct and indirect discrimination. This case has proceeded on the basis that if there was any unlawful discrimination against Mr Maxwell it was direct discrimination. (An Appeal Panel of the Tribunal considered the concept of direct discrimination at length in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). There is no dispute in this case concerning the concept of direct discrimination and the manner in which it was applied by the Tribunal.
55 In contrast to the word “disability”, and to the concept of “discrimination on the ground of disability”, the word “employer” is not defined in the Act. A limited category of employers are exempted from the requirements of section 49D(1) and (2) by section 49D(3). The Act binds the Crown (see section 5). Whilst there is no definition of “employer”, the Act contains a provision which clarifies the identity of the employer of people in the public service, the police service and the education teaching service (see section 4B(1)). By virtue of section 4B(1)(a), a reference in the Act to an employer is a reference to the relevant Department Head. The Act deems acts and omissions by authorised delegates of the public officials identified in section 4B(1) to be acts and omissions of those public officials (see section 4B(2) and (3)). These provisions clearly indicate that the Act is intended to apply to public sector employment. Part 9A of the Act, which is headed “Equal Opportunity in Public Employment”, requires public sector employers to take various steps which are designed to “eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and physical impairment” (section 122C). This consideration of the legislative scheme supports a conclusion that the Commissioner is an “employer” for the purposes of the Act.
56 As we have noted, since Kitt was decided there have been numerous statements by justices of the High Court concerning the general approach which courts and tribunals should take to the construction of anti-discrimination laws (seeegIW v City of Perth (1997) 191 CLR 1 at 12 and 15 (Brennan CJ and McHugh J), at 22 (Dawson and Gaudron JJ) and at 57-58 (Kirby J); Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 (Mason CJ and Gaudron J), at 372 (Brennan J), at 394 (Dawson and Toohey JJ) and at 406-407 (McHugh J); Australian Iron and Steel v Banovic (1989) 168 CLR 165 at 196-197 (McHugh J)).
57 Whilst there have been slight variations of emphasis in these many statements, they all direct courts and tribunals to undertake an approach to statutory construction which promotes the objects of anti-discrimination legislation and which supports the broad application of such laws. The following statements made by Dawson and Gaudron JJ in IW v City of Perth (1997) 191 CLR 1 at 22, when discussing the West Australian Equal Opportunity Act 1984, are of assistance in the context of this case:
- In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account of and give effect to [its] purpose”. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(I), should be construed as widely as their terms permit. In particular, “services”, a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context. [ citations omitted ]
58 Having considered, at some length, the schemes set out in the relevant public service legislation, and in the disability discrimination provisions of the Act, it is necessary to determine how they interact. In our opinion, the Commissioner, and any other Department Head, has an obligation to comply with section 49D(1)(b), and other relevant parts of the Act, when making employment decisions, including exercising the power to make recommendations to the Governor pursuant to section 26 of the Public Sector Management At 1988. Our principal reason for reaching this conclusion is that it is apparent from the terms of the relevant legislation that it was the intention of Parliament that Department Heads, like all other employers in NSW (except those expressly excluded), should not discriminate against people on the ground of disability when making decisions about who should be offered employment. This method of determining the interaction of the two legislative schemes, by looking to the intention of Parliament, is the same as that employed by Lee J in Kitt. The result in this case is different to that in Kitt because the two legislative schemes have changed markedly since 1987. The result in this case is at odds with the comments made in Plumb and Thurkettle about the interaction between Part 4A of the Act and the then operative provision concerning public service pre-appointment fitness assessments (clause 7 of the 1988 Regulation) because we believe those comments are wrong. The Equal Opportunity Tribunal incorrectly equated clause 7 of the 1988 Regulation with section 66 of the Public Service Act 1979. That Tribunal did not have the benefit of the High Court decisions in Qantas Airways Ltd v Christie (1998) 193 CLR 280 and X v Commonwealth of Australia (2000) 74 ALJR 176 when it held that the decision in Kitt necessitated a conclusion that the Commissioner did not have to comply with Part 4A of the Act when making hiring decisions.
59 There are a number of reasons which support the conclusion that the Commissioner was obliged to comply with section 49D(1)(b) of the Act. First, it is apparent from the language used that that provision is intended to have a broad operation. Some employers are excluded from its operation by section 49D(3). It seems reasonable to conclude that only those employers expressly excluded by section 49D(3), or those employers who may fall within the general exceptions to the Act found in sections 54, 55 and 56, should be free of the obligation cast upon all other employers by section 49D(1)(b).
60 Secondly, an examination of the Act as a whole (see paragraph 55 of these reasons) supports the conclusion that the obligation cast upon employers by section 49D(1)(b) not to discriminate against job applicants on the ground of disability applies to public sector employers. It is instructive to consider the effect of the converse proposition, which was advanced by Ms Anderson. If she is correct, it is the law in NSW (subject to our remarks below concerning the effect of the Disability Discrimination Act 1992) that the disability discrimination provisions of the Act apply to all private sector employers (save those excluded by section 49D(3)) when determining who should be offered employment, but not to Department Heads when making recommendations concerning permanent appointments to the NSW public service. As this is a legislative policy of such an extraordinary nature, it is reasonable to conclude that it would be set out in the clearest possible terms in the Act, or in other relevant legislation. As we have already indicated, a consideration of the Act as a whole does not support the proposition advanced by Ms Anderson. The Act binds the Crown, section 4B is designed to overcome any uncertainty and confusion concerning the identity of public sector “employers” and, pursuant to Part 9A, public sector employers are required to take various positive steps in order to eliminate discrimination on a number of grounds, including physical impairment.
61 There is nothing in the Public Sector Management Act 1988 which evinces a legislative intention that the obligation cast upon employers by section 49D(1)(b) should not apply to public sector employment. Such a legislative intention, if it existed, would mark a departure from the law which applies in other Australian jurisdictions. There is legislation in every other Australian state and territory, and Commonwealth legislation, which renders it unlawful for an employer to discriminate on the ground of disability (or impairment, which is the term still used in some statutes) when determining who should be offered employment. None of this legislation specifically excludes public sector employment from the prohibition against discrimination on the ground of disability by employers when making hiring decisions. It is reasonable to conclude that any legislative intention to render the law in NSW markedly different to that in every other Australian jurisdiction would be expressly stated.
62 Thirdly, section 49D(1)(b) of the Act and the relevant provisions in the public service legislation can operate together harmoniously without derogating from the full effect of either law. The attempt to equate section 66 of the former Public Service Act 1979 with clause 6 of the 1996 Regulation is wrong. Section 66 of the former Act provided, in effect, that a Department Head could not recommend that a person be permanently appointed to the public service unless that person passed a general medical examination. As Lee J pointed out in Kitt, the Department Head played no role in that medical examination. He or she had no capacity to stipulate the functions of a position and to request an examination which was designed to test whether the applicant could perform those functions. The section 66 medical examination was concerned with the applicant’s general state of health. No doubt because of the existence of both Commonwealth and state disability discrimination legislation, the public service legislation no longer takes such a broad, generic approach to a person’s medical fitness to join the NSW public service.
63 Clause 6 of the 1996 Regulation effectively renders the Department Head the ultimate decision maker (subject to the Governor’s power of appointment in section 25 of the Public Sector Management Act 1988) concerning a person’s fitness to perform the functions of the position for which he or she is an applicant. A natural reading of clause 6 supports this conclusion. It is further supported by section 102 (4) of the Public Sector Management Act which provides that the regulations made pursuant to that Act are not capable of altering or affecting any duty that is required to be performed by or under any Act. Section 49D(1)(b) imposes a duty on all employers in NSW, other than those expressly excluded by section 49D(3), or excluded pursuant to sections 54, 55 or 56, not to discriminate on the ground of disability when making hiring decisions. The Department Head must exercise the powers and obligations cast upon him or her by clause 6 of the 1996 Regulation subject to the general laws of this state which apply to all employers, unless the operation of those general laws is excluded, either expressly or by necessary implication. In this instance there is no express exclusion of the duty cast upon employers by section 49D(1)(b) of the Act and, for the reasons we have given, it is not possible to imply that a Department Head should be free of the duty cast upon all other employers.
64 When determining whether an applicant for a position is fit to perform the duties of that position, a Department Head, like all other employers, is permitted to discriminate on the ground of disability if the applicant is unable to perform the inherent requirements of the job (see section 49D(4)). Thus public sector employers, like private sector employers, are subject to the device chosen by the legislature to balance the desire of an employer to engage employees who are capable of performing the job, with the right of people with a disability to secure employment. Any action taken by a Department Head pursuant to his or her powers in clause 6 of the 1996 Regulation must be directed and performed in accordance with laws of general application, including those governing discrimination on the ground of disability.
65 Fourthly, if Ms Anderson’s argument is correct, we would be obliged to conclude that the specific terms of a piece of delegated legislation (clause 6 of the 1996 Regulation) oust the operation of a provision in a statute (section 49D(1)(b) of the Act) which we consider to be a law of general application. This conclusion is contrary to accepted approaches to statutory interpretation. As Pearce and Geddes state in Statutory Interpretation in Australia, 4th ed, Sydney: Butterworths, 1996 a page 202:
- While not, strictly speaking, a rule of interpretation, it should be borne in mind that where an Act contains provisions that are inconsistent with an item of delegated legislation, the latter will be rendered invalid, thereby, in effect, being repealed….On the other hand, delegated legislation cannot impliedly repeal an earlier Act except where expressly so authorised…..
67 It follows from what we have already said that the preferable approach to the interaction between section 49D(1)(b) of the Act and clause 6 of the 1996 Regulation is not the implied repeal or ouster of the relevant section in the Act by the delegated legislation, but the concurrent operation of both provisions. As Pearce and Argument point out in Delegated Legislation in Australia, 2nd ed, Sydney: Butterworths, 1999 at page 209:
- It may, of course, be the legislative intent that the Act and the delegated legislation are both to be complied with, and, if this is practicable, the requirements of the legislative instruments will be cumulative….
That statement accurately records our conclusion in this case.
68 Fifthly, if Ms Anderson’s argument is accepted, there is a reasonable likelihood that section 49D(1)(b) of the Act would be rendered inoperative by section 109 of the Commonwealth Constitution as a result of inconsistency with the Disability Discrimination Act 1992. It is highly unlikely that this was the intention of the legislature (see section 31 Interpretation Act 1987). The Commonwealth Disability Discrimination Act 1992 contains many provisions which have similar, or the same, wording to the relevant sections in Part 4A of the state Act. For present purposes there is no meaningful difference between section 15(1)(b) of the Commonwealth Act and section 49D(1)(b) of the state Act. The wording employed in the “inherent requirements” exception in section 15(4) of the Commonwealth Act is precisely the same as the language used in section 49D(4) of the state Act. The Commonwealth Act purports to apply to the facts of this case. By virtue of section 14 the Commonwealth Act binds the Crown in right of the Commonwealth, and of each of the states. Whilst that Act, like the state Act, does not define “employer” it does define “employment” to include “work as an employee of a State or an instrumentality of a State”. The employment in question in this case would appear to fall squarely within that definition. In an attempt to overcome section 109 inconsistency problems, section 13(3) of the Commonwealth Act provides that “This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.”
69 If Ms Anderson’s argument is correct the Commissioner is not obliged to comply with section 49D(1)(b) of the state Act when making hiring decisions. It appears that the Commissioner is obliged to comply with section 15(1)(b) of the Commonwealth Act. Whatever may be the effect of clause 6 of the 1996 Regulation on the operation of other NSW laws, it cannot derogate from the operation of a Commonwealth law of general application, such as section 15(1)(b) of the Disability Discrimination Act 1992. Whilst section 47 of the Commonwealth Act is in similar terms to section 54 of the state Act, in that it excludes some activities performed under statutory authority, it does not provide protection from liability for anything done pursuant to state law. Section 109 of the Constitution would render clause 6 of the 1996 Regulation inoperative to the extent of any inconsistency with section 15(1)(b) of the Commonwealth Act. Thus, section 49D(1)(b) of the State Act would not be capable of operating concurrently with section 15(1)(b) of the Commonwealth Act, for the Commissioner’s actions which are rendered unlawful by Commonwealth law (subject to the operation of the “inherent requirements” exception) would fall outside the reach of section 49D(1)(b) of the State Act. It is not tenable to suggest that it was the intention of the NSW Parliament that part of its own anti-discrimination legislation could be rendered inconsistent with the Commonwealth Disability Discrimination Act 1992, and thereby become inoperative, as a result of a regulation made pursuant to the Public Sector Management Act 1988.
70 Sixthly, the reasoning employed by the High Court in Qantas Airways Ltd v Christie (1998) 193 CLR 280 and X v Commonwealth of Australia (2000) 74 ALJR 176 suggests that when considering a case such as the present, where the employer seeks to argue that there is a legal impediment to hiring an employee, the proper course to follow is to determine whether the applicant’s failure to satisfy a legal pre-condition to employment constitutes an incapacity to perform the inherent requirements of the job. Thus, the proper way to consider such an argument by an employer is to determine whether the case falls within section 49D (4) of the Act. It is no longer appropriate, in view of these High Court decisions, to deal with a case of this nature by reasoning, as Lee J did in Kitt, that the employer did not act on the ground of physical impairment or disability, but on the ground that the job applicant was not eligible in law to be appointed. It is necessary to look at the reality of the ground or grounds not to appoint. This approach to the issue enhances the capacity for section 49D(1)(b) of the Act and clause 6 of the 1996 Regulation to operate concurrently, which we believe to be the intention of the legislature.
71 McHugh J explained this point in X v Commonwealth (2000) 74 ALJR 176 at 182:
- Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded.
72 It was open to the Commissioner to argue that Mr Maxwell’s failure to satisfy the pre-appointment health assessment required by clause 6 of the 1996 Regulation constituted an incapacity on Mr Maxwell’s part to perform the inherent requirements of the position for which he had applied. If that argument were to be successful the Commissioner would not have acted in breach of section 49D(1)(b) of the Act, for section 49D(4) renders lawful, conduct which would otherwise be unlawful, if an employer determines not to hire a person with a disability because that person is unable to perform the inherent requirements of the position for which he or she has applied. This was the proper route open to the Commissioner in this case, rather than to argue that he was not amenable to section 49D(1)(b) of the Act because of the requirements of clause 6 of the 1996 Regulation.
F. The effect of section 54 of the Act
- 73 The Commissioner’s second proposition was put as an alternative to the first proposition, which we have rejected. The second proposition was that the Tribunal should have found that the impugned actions of the Commissioner were not in breach of section 49D(1)(b) of the Act because those actions fell within the general exceptions to the operation of the Act provided for in section 54(1)(a) and (b).The Commissioner has argued, generally, that the Tribunal constructively declined to exercise its jurisdiction in that it failed to determine the complaint according to law (Appeal Ground 2) and, more specifically, that the Tribunal failed to properly construe and/or apply section 49D(4), section 54 and section 109 of the Act (Appeal Ground 7).
74 Section 54(1) of the Act provides:
- Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
- (a) any other Act, whether passed before or after this Act,
(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
(c) an order of the Tribunal,
(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or….
75 Section 109 of the Act provides:
- Where by any provision of the Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent.
Thus, as section 54 of the Act is clearly an exception ( see the heading to Part 6, of which section 54 is the first section, which reads “General exceptions to this Act”), the respondent bears the burden of proving that his/her conduct falls within that section and is thereby rendered lawful.
77 We do not believe, for the reasons which follow, that the Commissioner has identified any error of law in the way in which the Tribunal dealt with the section 54 argument.
78 There are two matters which must be considered when determining the section 54 argument: first, the actual breadth of section 54 and, secondly, the extent of the obligations cast upon the Commissioner by section 26 of the Public Sector Management Act 1988 and clause 6 of the 1996 Regulation. In Waters v Public Transport Corporation (1991) 173 CLR 349 the High Court considered the operation of a similar provision to section 54, which was section 39 of the Victorian Equal Opportunity Act 1984. For present purposes there is no meaningful difference between section 39 of the now repealed Victorian Act and section 54 of the NSW Act. Mason CJ and Gaudron J (at pages 368-369) described the operation of section 39 of the Victorian Act as follows:
- As a matter of language, the words of s 39(e)(ii) are capable of bearing the meaning attributed to them by either construction. Anything that it is necessary to do in order to comply with an exercise of statutory power can, as a matter of language, be said to be necessary “in order to comply with” the legislative “provision” conferring (and expressly or impliedly requiring obedience to) the statutory power. On the other hand, and depending upon context, a reference to what is necessary to comply with “a provision of …any other Act” can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision (cf., e.g., the construction given by the House of Lords in Hampson v Department of Education and Science (33) to the words “any act of discrimination done … in pursuance of any instrument”). If the relevant words fell to be construed in isolation, we would favour the wide construction of them, When par. (e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one.
These views were supported by a majority of the Court ( see Brennan J at p 381, Dawson and Toohey JJ at pp 388-390 and McHugh J at pp 413-414).
79 Section 54 excludes from the operation of the NSW Act any actions of the Commissioner which it was necessary for him to perform in order to comply with specific requirements imposed upon him by section 26 of the Public Sector Management Act 1988 and clause 6 of the 1996 Regulations. When considering the Commissioner’s first proposition in this appeal we determined what it was necessary for him to do in order to comply with the relevant public service legislation (see paragraphs 44 to 52 of these reasons). It was necessary for the Commissioner to be satisfied as to the outcome of the pre-appointment health assessment required by clause 6 of the 1996 Regulations before making a recommendation to the Governor, pursuant to section 26(3) of the Public Sector Management Act 1988, that Mr Maxwell be appointed to position no 97/MO88. In our opinion, this level of satisfaction, if properly achieved and acted upon, would not be in any way inconsistent with the application of the relevant disability discrimination provisions of the Act to the facts of this case.
80 The Commissioner has argued that because he was not so satisfied, it was necessary for him to decline to recommend that Mr Maxwell be appointed to the position in question. In determining whether he was satisfied about Mr Maxwell’s fitness for duties the Commissioner was required to exercise his powers and obligations according to law. We do not believe that he did so. His powers were not to be exercised in a legal vacuum. The Commissioner erroneously proceeded on the basis that he was not obliged to comply with section 49D(1)(b) of the Act (see the Commissioner’s letter, dated 3 December 1988, to the President of the Anti-Discrimination Board in exhibit A). We have already determined that in exercising his powers of appointment under the relevant public service legislation the Commissioner was obliged to comply with section 49D(1)(b) of the Act, just as he was obliged to comply with other relevant NSW and Commonwealth laws.
81 The Commissioner appears, also, to have proceeded on an erroneous understanding of his powers and obligations, and those of HealthQuest, pursuant to clause 6 of the 1996 Regulation (see the Commissioner’s letter to the President of the Board referred to in the previous paragraph). It was, ultimately, a matter for the Commissioner to determine, following a precise stipulation of the inherent requirements of the position for which Mr Maxwell had applied, and after considering the results of any health assessment conducted pursuant to clause 6 of the 1996 Regulation as well as any other relevant matters referred to in section 49D(4) of the Act, whether he was satisfied that Mr Maxwell was fit to carry out the duties of the position in question. The Commissioner did not do this. He proceeded on the mistaken assumption that the HealthQuest examination was a pass/fail test and that following HealthQuest’s advice to him of 13 February 1998 that “Mr Maxwell is considered unfit for the full range of custodial duties as a correctional officer because of his reduced uncorrected vision”, he was legally obliged not to recommend Mr Maxwell’s appointment. The determination which the Commissioner was required to make concerning compliance with clause 6 of the 1996 Regulation and laws of general application such as section 49D(1)(b) of the Act was far more elaborate than his pass/fail response to the HealthQuest examination.
82 As the Commissioner, in this case, did not exercise his powers and obligations under the relevant public service legislation according to law, it was not open to him to argue that his actions were excluded from the operation of the Act by reason of the operation of section 54. It was only open to the Commissioner to argue that his actions fell within section 54 when it was necessary for him to act as he did in order to comply with the specific requirements of another Act, or piece of delegated legislation, and he did in fact act in accordance with that other statutory requirement.
G. The “inherent requirements” exception in section 49D(4)
- 83 The Commissioner’s third proposition was put as an alternative to the first and second propositions, both of which have been rejected. The third proposition was that the Tribunal should have found that the impugned actions of the Commissioner were not in breach of section 49D(1)(b) of the Act because those actions fell within the exception to that particular substantive provision which is found in section 49D(4). The Tribunal’s reasoning and conclusions have been challenged on a number of grounds by the Commissioner. As with the previous propositions, the Commissioner has argued, generally, that the Tribunal constructively declined to exercise its jurisdiction by failing to determine the complaint according to law (Appeal Ground 2) and, more specifically, that the Tribunal:
- (a) failed to properly construe and/or apply section 49D(4), section 54 and section 109 of the Act (Appeal Ground 7)
(b) made findings that are inconsistent with and/or contrary to the provisions of section 49D(4) of the Act (Appeal Ground 8)
(c) made a finding, unsupported by evidence that the position in question does not involve frequent or sustained front-line correctional duties (Appeal Ground 11)
(d) failed to take relevant considerations into account (Appeal Ground 12)
(e) took into account irrelevant considerations (Appeal Ground 13)
(f) made findings that are not based on logical reasoning and/or were not open to be made (Appeal Ground 13)
(g) delivered reasons and/or made orders which are contradictory (Appeal Ground 15).
- Nothing in subsection (1)(b) or (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
- (a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:
- (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and
(b) the effect of the disability of a persona concerned, and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
87 In X v Commonwealth of Australia (2000) 74 ALJR 176 the High Court made extensive comments about the operation of section 15(4) of the Commonwealth Disability Discrimination Act 1992, which contains precisely the same wording as section 49D(4) of the NSW Act. Further, the provisions of the Commonwealth Act to which section 15(4) provides an exception (sections 15(1)(b) and 15 (2)(c)) are effectively the same as those in the NSW Act to which section 49D(4) provides an exception, namely section 49D(1)(b) and section 49D(2)(c).
88 The following statements by McHugh J in X v Commonwealth of Australia (2000) 74 ALJR 176 at 182-183 commanded majority support:
- [39] Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was:
- (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also
(b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.
90 In the first instance it is a matter for the employer to determine the inherent requirements of the position in question. Ultimately, however, it is a matter for the Tribunal in a litigated complaint. The proper process was described by McHugh J in X v Commonwealth of Australia (2000) 74 ALJR 176 at 182:
- [36] What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business…….
[37] Unless the employer’s undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.
92 Consequently, it was ultimately a matter for the Tribunal to determine what were the inherent requirements of the position for which Mr Maxwell had applied. Thus there is no substance to Ms Anderson’s argument that the Tribunal erred in law by substituting its view of the inherent requirements of the position for that of the Commissioner when, by virtue of section 31(1) of the Correctional Centres Act 1952, the Commissioner was entitled to determine “the duties of correctional officers of the various classes”. The Commissioner was obliged to exercise the power granted to him by section 31(1) of the Correctional Centres Act 1952 in accordance with the general law (see McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413), which included the disability discrimination provisions of the Act.
93 The Tribunal was obliged to objectively determine the inherent requirements of the position in question giving “appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment” (per McHugh J in X’s Case at p 182). This was the task which it undertook at paragraphs 136 to 165 of its reasons. It is quite apparent that the Tribunal did give appropriate recognition to the “business judgment” of the Commissioner when determining what were the inherent requirements of the position.
94 It is arguable, in fact, that the Tribunal proceeded on an understanding of its role which was more favourable to the Commissioner than the authorities required it to be. At paragraph 141 of its reasons the Tribunal stated that “we find the authorities require an assessment to be made of whether the applicant can carry out safely and satisfactorily all of the requirements of the position including full custodial duties”. The reference to “all of the requirements of the position” may have been unnecessary for as Gummow and Hayne JJ stated in X’s Case at p 193:
- The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.
95 The Tribunal found (at paragraphs 136 to 138 of its reasons) that whilst the position for which Mr Maxwell had applied was "essentially a senior management position with minimal frontline duties”, the position also entailed “full custodial duties” which required close supervision of inmates and the maintenance of vigilance. As we understood the submissions made by Ms Anderson, these findings are not challenged by the Commissioner, but the Commissioner has challenged, in Appeal Ground 11, the finding by the Tribunal that the position in question does not involve frequent or sustained front-line correctional duties. It is claimed that this finding is unsupported by evidence.
96 On the basis of the evidence given by Mr Maxwell and Mr Ruckley it was open to the Tribunal to conclude, as a question of fact, that the position in question did not involve frequent or sustained front-line correctional duties. No useful purpose is served, however, by a comprehensive examination of the relevant evidence because ultimately this finding of fact was irrelevant. The Tribunal undertook the task of determining whether Mr Maxwell’s disability prevented him from performing the inherent requirement of the position on the basis that close supervision of inmates and the capacity for vigilance were included within those inherent requirements. It appears that it was open to the Tribunal to conclude, as a question of fact, that close supervision and vigilance were not essential requirements of the employment and then, as an issue of law, disregard them when determining whether Mr Maxwell could perform the inherent requirements of the position for they were peripheral. But it did not do this. Consequently, as we said in paragraph 94, the analysis undertaken by the Tribunal may have been more favourable to the Commissioner than the facts of the case actually demanded.
97 Having identified the inherent requirements of the position, it was then necessary for the Tribunal to determine whether, because of his disability, Mr Maxwell was unable to perform those inherent requirements. Section 49D(4) of the Act stipulates that when undertaking this determination it was necessary for the Tribunal to take into account Mr Maxwell’s “past training, qualifications and experience relevant to the particular employment” and, as he was already employed by the Commissioner in a temporary capacity, Mr Maxwell’s “performance as an employee” as well as “all other relevant factors that it is reasonable to take into account”.
98 The High Court examined this element of the inherent requirements exception at some length in X’s Case. Gummow and Hayne JJ stated at 191-192:
- Section 15(4)(a) contains a number of elements that must be taken into account in seeking to apply it. First, the inquiry is whether “because of [the person’s] disability” he or she would be unable to carry out the inherent requirements of the particular employment. That is, the search is for a causal relationship between disability and being unable to carry out the inherent requirements of that employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated …[italics added].
100 When considering whether, because of his disability, Mr Maxwell was unable to perform the inherent requirements of the position the Tribunal was critical, quite rightly in our opinion, of the analysis undertaken by HealthQuest. Perhaps due to his misunderstanding of the effect of clause 6 of the 1996 Regulation, and of his own responsibilities under Part 4A of the Act, the Commissioner appears to have effectively delegated his obligations under section 49D(4) to HealthQuest. The HealthQuest examination was a fact finding exercise which should have been used by the Commissioner as a tool to assist him in performing the tasks required of him as an employer by section 49D(4), in the manner described by McHugh J in X’s Case (see paragraph 88 of these reasons). On the facts as found by the Tribunal, HealthQuest simply did not have enough information about the day to day operations of the prison system to effectively act as the delegate of the Commissioner in undertaking the analysis required by section 49D(4) of the Act.
101 The Tribunal ultimately concluded at paragraph 165 that “by equipping himself with a spare pair of glasses Mr Maxwell is able to perform the essential and fundamental duties of the position with negligible risk”. In our opinion this was a finding of fact which was open to the Tribunal. Indeed the finding went further than was necessary to resolve the case for, as the Tribunal pointed out in the next sentence of its reasons, by virtue of section 109 of the Act it was for the Commissioner to prove that Mr Maxwell was unable to perform the inherent requirements of the position because of his disability rather than for Mr Maxwell to satisfy the Tribunal that he was able to perform those inherent requirements.
102 The Commissioner has challenged the findings of the Tribunal on the basis that the Tribunal failed to take relevant consideration into account, took into account irrelevant considerations, made findings that are not based on logical reasoning and/or were not open to be made, and delivered reasons and/or made orders which are contradictory (Appeal Grounds 12, 13, 14 and 15). We do not believe that there is merit in any of these appeal grounds.
103 It may be that the Commissioner has misunderstood the structure of the Tribunal’s reasons. It seems quite clear that those matters which the Tribunal took into account when determining whether Mr Maxwell was unable to perform the inherent requirements of the position for which he had applied were set out in paragraphs 141 to 165 of its reasons. Section 49D(4) of the Act clearly indicates which considerations are relevant when undertaking this determination. In this case they were Mr Maxwell’s “past training, qualifications and experience relevant to the particular employment”, his “performance as an employee” when engaged in a temporary position and “all other relevant factors that it is reasonable to take into account”. By any measure section 49D(4) of the Act provides for a very broad range of relevant considerations.
104 In our opinion the Commissioner has not identified any relevant consideration which the Tribunal failed to take into account, or any irrelevant consideration which the Tribunal impermissibly took into account when determining whether Mr Maxwell was unable to perform the inherent requirements of the position for which he had applied. The Tribunal undertook, quite appropriately and reasonably in our opinion, the factual exercises of identifying the inherent requirements of the position and of assessing whether Mr Maxwell was unable to perform those inherent requirements because of his disability after considering the matters which it was permitted by section 49D(4) to take into account.
105 In its reasons, when summarising the evidence given at the inquiry, the Tribunal made reference to some facts to which Ms Anderson has taken objection in paragraphs 10, 11 and 12 of her written submissions. It may be that it was, strictly speaking, unnecessary for the Tribunal to have made findings about some of the matters identified but, as we have already noted, there is nothing in paragraphs 141 to 165 of the Tribunals reasons which suggests that its finding was influenced by irrelevant considerations, or not properly based on all relevant considerations. Further, when clause 6 of the 1996 Regulation is given its proper place in the scheme of laws which governed the appointment in question, there is no basis to the suggestions that the Tribunal made findings not based on logical reasoning, or on reasoning which was not open to it, or that it delivered reasons which were contradictory.
106 The Tribunal found, as a question of fact, that the Commissioner had not proven that Mr Maxwell was unable to perform the inherent requirements of the position for which he had applied. On the evidence this was a finding which was clearly open to the Tribunal. The Commissioner made much of the fact that Mr Maxwell could only closely supervise inmates and maintain vigilance with the use of glasses. It was the Commissioner’s position that it was essential for these tasks to be performed without any visual aids. As we understood the Commissioner’s case, he adopted this view because of concerns about the risk to the safety of other correctional officers and inmates in the event that a correctional officer’s glasses were dislodged during a disturbance. This was a proper concern for the Commissioner to hold for as McHugh J said in X’s Case (at p 185), “…in determining whether a person with a disability is able to carry out the inherent requirements of a particular employment, regard can be had to the health and safety of co-employees and others”. The extent of that risk to the health and safety of others is something which requires appropriate assessment.
107 McHugh J went on to state (at p 185) that “the degree of risk is relevant in determining whether X is able to carry out an inherent requirement of the employment, namely, the requirement not to expose…others to a real risk of harm to their health or safety”. Gummow and Hayne JJ (at p 194) considered how this assessment of risk should be undertaken:
- As we have said, inability to perform must be assessed practically. In particular, we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment…..Much would turn on the nature and size of the risks that are said to arise.
108 In our opinion the Tribunal, in its reasons at paragraphs 150 to 165, appropriately and practically considered whether Mr Maxwell’s need to wear glasses in order to perform the duties in question rendered him unable to carry out an inherent requirement of the position because he posed a real risk to the health or safety of others. The Tribunal considered the nature and size of the risks that were said to arise and ultimately concluded that the Commissioner had not discharged his onus of satisfying the Tribunal that the case fell within the section 49D(4) exception to liability. On the facts of this case that was clearly a conclusion which was reasonably open to the Tribunal. All of the challenges to the manner in which the Tribunal interpreted and applied section 49D(4) of the Act must fail.
H. The remedies ordered by the Tribunal
- 109 The Commissioner’s fourth proposition was that the relief ordered by the Tribunal was beyond power and denied him natural justice. The Commissioner argued, generally, that the Tribunal constructively declined to exercise its jurisdiction by failing to determine the complaint according to law (Appeal Ground 2) and, more specifically, that the Tribunal:
- (a) failed to afford the Commissioner procedural fairness (Appeal Ground 1)
(b) in making Order 1, made an order which “is inconsistent with and contradictory of its decision to refuse to order that [Mr Maxwell] be appointed to the position” (Appeal Ground 16(i))
(c) when making Order 2, failed to specify what the Commissioner must do in order to conduct “a full and proper risk management assessment of the position” (Appeal Ground 16(ii))
(d) when making Order 3, failed to specify what the Commissioner must do in order to “assess the applicant for the position in accordance with the findings of that inquiry” (Appeal Ground 16(iii))
(e) in making Order 3, made an order which is contrary to clause 6 of the 1996 Regulation in that it purported to require the Commissioner to substitute its assessment of Mr Maxwell in accordance with “a full and proper risk management assessment of the position” for the test prescribed by clause 6 of the 1996 Regulation.
111 The orders made by the Tribunal are set out in paragraph 2 of these reasons. Mr Maxwell, in his Points of Claim, sought an order that he be appointed to the position of Assistant Superintendent of Industries at Silverwater Correctional Centre. Because of concerns about the health assessment required by the Regulation (the Tribunal in paragraph 191 of its reasons incorrectly referred to clause 7 of the 1988 Regulation rather than clause 6 of the 1996 Regulation), the Tribunal declined to make this order and said at paragraph 192 of its reasons:
- In our view, the appropriate remedy is first, to order that a full and proper risk management assessment of the position be conducted by the First Respondent as to the inherent requirements of ASI no 97/MO88 and secondly, to order that Mr Maxwell be assessed for the position in accordance with the findings of that inquiry.
113 Broadly speaking, the rules of natural justice require that hearings be fair and unbiased. In this case the fairness of the hearing has been challenged on the basis that the Commissioner was ordered by the Tribunal to do various things of which he had no notice. As Aronson and Dyer point out, “…the requirements of the [hearing] rule are flexible and will be determined by what is fair in all the circumstances of a particular case” (M Aronson and B Dyer, Judicial Review of Administrative Action, 2nd ed, LBC, Sydney: 2000 at p 386). The Commissioner was given no notice of the orders which were made against him which meant that he had no opportunity to make submissions concerning the appropriateness of those orders. He was placed in the position that failure to comply with those orders exposed him to enforcement proceedings which appear to be criminal in nature (see section 116 of the Act). In the circumstances of this case it was unfair that Orders 2 and 3 were made without notice to the Commissioner.
114 When determining what relief to order the Tribunal was placed in a difficult position for it was clearly concerned by the fact that clause 6 of the 1996 Regulation appeared to prevent it from ordering that Mr Maxwell be appointed to the position in question. There may also have been legal issues of some complexity in ordering the Governor to appoint Mr Maxwell pursuant to section 25 of the Public Sector Management Act 1988, or in ordering the Commissioner to recommend his appointment pursuant to section 26 of that Act. The course followed by the Tribunal was a cautious one, but it did make orders of which the Commissioner had no notice. With the benefit of hindsight the Tribunal would have been well advised to have recalled the parties once it had determined that the complaint was substantiated and to have invited the parties to make submissions about relief. The Tribunal could have reasonably expected the Commissioner, as a public official, to have co-operated in the making of orders to give effect to the Tribunal’s findings. In this way the difficulties posed by the relevant provisions in the public sector legislation could have been overcome and the rules of natural justice would have been observed.
115 As we have concluded that the Tribunal made an error of law when it made Orders 2 and 3, in that it denied the Commissioner procedural fairness, we must determine the consequences which flow from that error. Section 114(1) of the Tribunal Act provides that after determining an appeal an Appeal Panel “may make such orders as it thinks appropriate in light of its decision”. Section 114(2) contains a non-exhaustive description of the types of orders which an Appeal Panel may make. For the reasons given below at paragraphs 118 to 123 we do not believe that we are required to set aside the decision of the Tribunal merely because an error of law has been identified in the manner in which the Tribunal made orders for relief. Compliance with the rules of natural justice is, however, a matter of such basic significance that we believe orders made in the absence of procedural fairness should be set aside. Consequently, we propose to order that Orders 2 and 3 made by the Tribunal be set aside. In view of the fact that Mr Maxwell now occupies the position in question (see paragraph 6 of these reasons), no useful purpose is served by considering orders which could be made in substitution for those which are to be set aside. Also, no useful purpose is served by considering Appeal Grounds 16 (ii), (iii) and (iv) except to repeat our observation that in making Orders 2 and 3 the Tribunal did nothing more than direct the Commissioner to comply with his statutory obligations pursuant to Part 4A of the Act and clause 6 of the 1996 Regulation.
116 The Commissioner has challenged the first order made by the Tribunal, that the Commissioner pay Mr Maxwell damages in the sum of $40,000, on the ground that this order was illogical for the Tribunal declined to appoint Mr Maxwell to position no 97/MO88 yet it ordered that he be compensated for economic loss which flowed from not being appointed to that position. There is no substance to this ground of appeal.
117 Pursuant to section 113(1)(b)(i) of the Act the Tribunal was permitted, after finding the complaint substantiated, to “order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. The Tribunal was clearly of the opinion that Mr Maxwell would have been appointed to the position in question had the Commissioner not unlawfully discriminated against him on the ground of his disability. It declined to order that Mr Maxwell be appointed to the position for the reasons we have discussed at paragraph 114 above. The Tribunal acted logically and lawfully when it determined that Mr Maxwell should be awarded $40,000 damages for the economic loss which he suffered as a result of the Commissioner’s conduct, which the Tribunal had found to be in breach of the Act.
I. The powers of an Appeal Panel
- 118 Ms Anderson submitted that were we to find any error of law on the part of the Tribunal this would constitute jurisdictional error, which meant that the Appeal Panel was required by law to set aside the Tribunal’s decision and orders. The High Court decision in Craig v State of South Australia (1995) 131 ALR 595 was cited as authority for this proposition. In that case the High Court considered the circumstances in which administrative tribunals and inferior courts may commit jurisdictional error, as well as the consequences of such errors. The High Court stated that an error of law, of the class it identified, by an administrative tribunal would constitute jurisdictional error, thereby invalidating the decision and orders of that tribunal. The Court did, however, draw an important distinction between administrative tribunals and inferior courts, both in terms of the errors of law which constitute jurisdictional error and in terms of the consequences of such errors. The High Court also pointed out that it’s comments about administrative tribunals applied in the absence of a contrary intent in the statute which established that tribunal.
119 In view of the importance of the issue in this and subsequent cases it is of benefit to set out a lengthy passage from the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v State of South Australia 131 ALR 595 at 602-603 concerning jurisdictional error:
- 120. At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd (22):
“Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.”
The position is of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
121 All of the foregoing renders the Tribunal far removed from the administrative tribunals to which the High Court was directing its remarks in Craig v State of South Australia. The administrative tribunals discussed in that case were, as the High Court noted, tribunals which must be considered in the light of constitutional limitations upon the competence of the Commonwealth legislature to confer judicial power upon an administrative tribunal due to the doctrine of the separation of judicial power from executive power. Because of Chapter 3 of the Commonwealth Constitution this constitutional limitation applies to administrative tribunals created by the Commonwealth parliament (see R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254). It does not apply to administrative tribunals created by the NSW Parliament (see Kable v Director of Public Prosecutions (1996) 138 ALR 577). It may be that this Tribunal, at least in relation to some of the functions given to some of its divisions, exercises something akin to judicial power (see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245). Ultimately, however, it is unnecessary to decide this point in order to dispose of Ms Anderson’s argument for it is clear that the two errors of law we have identified do not constitute jurisdictional error.
122 The Appeal Panel is a creation of statute and we must look to its statutory functions and powers in order to determine the consequences which flow from a finding that the Tribunal has committed an error of law. The power given to an Appeal Panel by section 114 of the Tribunal Act is broad. Having determined an appeal, an Appeal Panel “may make such orders as it thinks appropriate in light of its decision”. Section 114(2) provides examples of the orders which an Appeal Panel may make, but it does not limit the general power, granted by section 114(1), to make orders which the Appeal Panel considers to be appropriate in light of its decision. Given the nature of the powers conferred upon the Appeal Panel by section 114 of the Tribunal Act, those powers must be exercised judicially and in accordance with the general law.
123 We have decided that the Tribunal committed two errors of law: it wrongly identified the operative regulation in this case (see paragraph 39 of these reasons) and it denied the Commissioner natural justice in making Orders 2 and 3 (see paragraph 113 of these reasons). However, neither error infected or tainted its decision that the complaint before it was substantiated because it was satisfied that the Commissioner unlawfully discriminated against Mr Maxwell on the ground of disability in failing to recommend his appointment to position no 97/MO88. Consequently, there is no reason to set aside the Tribunal’s decision. For the reasons given in paragraphs 110 to 115 we do believe that the orders made by the Tribunal numbered 2 and 3 should be set aside.
124 There was no application for costs and there will be no orders as to costs.
J. Decision and orders
- 125 The appeal is upheld in part and dismissed in part. We make the following orders:
- (1) The decision of the Tribunal is affirmed.
(2) Order 1 made by the Tribunal is affirmed.
(3) Orders 2 and 3 made by the Tribunal are set aside.
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