Commonwealth of Australia v Human Rights and Equal Opportunity Commission

[1996] FCA 940

CATCHWORDS

DISCRIMINATION - Enlistee discharged from Australian Defence Forces (“ADF”) after testing positive to HIV - whether unlawful discrimination within Part 2 of the Disability Discrimination Act 1992 (Cth) - whether enlistee “unable to carry out the inherent requirements of the particular employment” because of his HIV positive status - relationship between soldier and Crown - discussion of inherent requirements of employment as a soldier - whether include external requirements imposed by employer on occupational health and safety grounds.

WORDS AND PHRASES - “inherent requirements of the particular employment”.

Disability Discrimination Act 1992 (Cth) s 3, s 4(1), s 5, s 6, s 10, s 12(5), s 15, s 48, s 53, s 99
Disability Discrimination Regulations r 3, r 4
Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) s 16, s 17
Defence Act 1903 (Cth) s 36, s 45(1), s 50C

Waters v Public Transport Commission (1991) 173 CLR 349
Davis v Western Suburbs Hospital (1941) 42 SR (NSW) 26
Marks v The Commonwealth (1964) 111 CLR 549
Coutts v The Commonwealth (1985) 157 CLR 91
The Commonwealth v Quince (1944) 68 CLR 227
Groves v The Commonwealth (1982) 150 CLR 113

Commonwealth of Australia v The Honourable W J Carter QC in his capacity as a Member of the Human Rights and Equal Opportunity Commission and “X”
No QG 115 of 1995

Cooper J
Brisbane
31 October 1996

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

No QG 115 of 1995

BETWEEN:

COMMONWEALTH OF AUSTRALIA

Applicant

AND:

THE HONOURABLE W J CARTER QC IN HIS

CAPACITY AS A MEMBER OF THE HUMAN
  RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

AND:

“X”

Second Respondent

JUDGE MAKING ORDER:           Cooper J

WHERE MADE:  Brisbane

DATE OF ORDER:  31 October 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first and second respondents’ costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
  No QG 115 of 1995
BETWEEN:

COMMONWEALTH OF AUSTRALIA

Applicant

AND:

THE HONOURABLE W J CARTER QC IN HIS

CAPACITY AS A MEMBER OF THE HUMAN
  RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

AND:

“X”

Second Respondent

CORAM:  Cooper J

PLACE:  Brisbane

DATE:  31 October 1996

REASONS FOR JUDGMENT

Introduction
  The first respondent (“the Commissioner”) is a member of the Human Rights and Equal Opportunity Commission (“the Commission”).  One of the Commission’s functions is to inquire into alleged infringements of the Disability Discrimination Act 1992 (Cth) (“the Act”). Part 2 of the Act prohibits disability discrimination. The Commission’s inquiry function is complaint driven.

The second respondent, by written complaint, alleged that he had been unlawfully discriminated against by the Australian Defence Forces (“the ADF”) when he was discharged from the ADF because he tested positive to the Human Immunodeficiency Virus (“HIV”).
The Commissioner conducted an inquiry under the Act. Pursuant to s 87 of the Act the Commissioner ordered that the second respondent’s name be suppressed and that no material be published identifying him. For the purposes of the inquiry the second respondent was referred to as “X”. Orders to similar effect were made in this court.

The Commissioner found the second respondent’s complaint of unlawful discrimination substantiated and that the dismissal of the second respondent from the ADF on the ground that he was HIV positive was unlawful.

The applicant, the Commonwealth of Australia, has applied for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for the issue of writs of mandamus and certiorari directed to the Commissioner pursuant to s 39B of the Judiciary Act 1903 (Cth) and for certain declaratory relief.

Facts Giving Rise to the Complaint
  The second respondent enlisted as a male general enlistee in the Australian Army.  It is a requirement of this branch of the ADF that an enlistee is first and foremost a soldier and required to undergo training as such.  A soldier is always subject to deployment as required for the purposes of the ADF’s operational efficiency and effectiveness.  Thus, notwithstanding that a member of the ADF may be undertaking functions in the ADF which have workplace counterparts in civilian life, he or she is a soldier and liable to deployment as such on active service, including combat service.

Prior to his enlistment the second respondent signed a medical history questionnaire acknowledging that he would be tested for HIV and the Hepatitis B and C infections as part of a post-entry medical check soon after enlistment in the ADF.  He also acknowledged that he would be discharged from the ADF if he tested positive to HIV or if Hepatitis B or C infections were diagnosed.

After enlistment the second respondent tested positive to HIV and was discharged in December 1993.  At the time of his discharge the second respondent was in week five of the Recruit Training Program.  He had not been allocated to any employment stream or trade.  Such allocation took place at week eight.  At the time of his discharge the second respondent enjoyed apparent good health and was symptom free.

The second respondent was dismissed in accordance with an ADF Service Policy for the detection, prevention and administrative management of HIV which, so far as is relevant, provided :-

“All regular entrants are to be tested as soon as possible after arrival at the initial training establishment.  Applicants are to be informed, before entry, that such testing will take place as part of the routine post entry medical check, and they are to be given the option to refuse and withdraw their application.  As with newly inducted entrants in whom other potentially serious diseases have been detected, personnel with HIV infection are to be discharged.”

It was common ground in the proceedings before the Commissioner that HIV is infectious and is transmissible by the exchange of bodily fluids including blood and that HIV infection usually leads to the onset of Acquired Immune Deficiency Syndrome (“AIDS”), which is a fatal illness.

The Statutory Provisions
“Disability”, in relation to a person, is defined in s 4(1) of the Act to mean :-

“(a)total or partial loss of the person’s bodily or mental functions;  or

(b)total or partial loss of a part of the body;  or

(c)the presence in the body of organisms causing disease or illness;  or

(d)the presence in the body of organisms capable of causing disease or illness;  or

(e)the malfunction, malformation or disfigurement of a part of the person’s body;  or

(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction;  or

(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)presently exists;  or

(i)previously existed but no longer exists;  or

(j)may exist in the future;  or

(k)is imputed to a person.”

“Disability discrimination” has the meaning given by s 5, s 6, s 7, s 8 and s 9 inclusive of the Act (s 4(1)). Section 5 of the Act provides :-

“5(1)   For the purposes of this Act, a person (‘discriminator’) discriminates against another person (‘aggrieved person’) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)       For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”

Section 6 of the Act provides :-

“6.      For the purposes of this Act, a person (‘discriminator’) discriminates against another person (‘aggrieved person’) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to
comply with a requirement or condition:

(a)with which a substantially higher proportion of persons without the disability comply or are able to comply;  and

(b)which is not reasonable having regard to the circumstances of the case;  and

(c)with which the aggrieved person does not or is not able to comply.”

Section 7, s 8 and s 9 are not relevant for present purposes.

By s 10 of the Act, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for that reason.

Part 2 of the Act deals with the prohibition of disability discrimination. Section 15 is concerned with discrimination in employment. It provides :-

“15(1)            It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a)in the arrangements made for the purpose of determining who should be offered employment;  or

(b)in determining who should be offered employment;  or

(c)in the terms or conditions on which employment is offered.

(2)       It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

(a)in the terms or conditions of employment that the employer affords the employee;  or

(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;  or

(c)by dismissing the employee;  or

(d)by subjecting the employee to any other detriment.

(3)       Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

(4)       Neither paragraph (1)(b) nor (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 the disability and the provision of which would impose an unjustifiable hardship on the employer.”

Sub-section 12(5) of the Act provides :-

“12(5)Sections 15, 16 and 17 have effect in relation to discrimination against:

(a)Commonwealth employees in connection with their employment as Commonwealth employees;  and

(b)persons seeking to become Commonwealth employees.”

A member of the Defence Force is defined as a Commonwealth employee for the purposes of the Act (s 5(1)).

Division 5 of Part 2 provides for certain exemptions from the prohibition of disability discrimination. Section 48 provides :-

“48     This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability if:

(a)the person’s disability is an infectious disease;  and

(b)the discrimination is reasonably necessary to protect public health.”

Section 53 creates an exemption in relation to combat duties, combat-related duties and peacekeeping services :-

“53(1)            This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability in connection with employment, engagement or appointment in the Defence Force:

(a)in a position involving the performance of combat duties, combat-related duties or peacekeeping service;  or

(b)in prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service;  or

(c)in a position involving the performance of duties as a chaplain or a medical support person in support of forces engaged or likely to be engaged in combat duties, combat-related duties or peacekeeping service.

(2)       In this section:

‘combat duties’ means such duties as are declared by the regulations to be combat duties for the purposes of this section;

‘combat-related duties’ means such duties as are declared by the regulations to be combat-related duties for the purposes of this section;

‘medical support person’ means:

(a)a person exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease;  or

(b)a person exclusively engaged in the administration of medical units and establishments;

‘peacekeeping service’ has the same meaning as in the Veterans’ Entitlements Act 1987.”

At the relevant times, no regulations had been made under the Act and therefore,
“combat duties” and “combat-related duties” had no meaning.  Regulations have since been made (Disability Discrimination Regulations, Statutory Rules 1996, No 27) :-

“3. For the purposes of subsection 53(2) of the Act, the following duties are declared to be combat duties, namely, duties which require, or which are likely to require, a person to commit, or participate directly in the commission of, an act of violence in the event of armed conflict.

4. For the purposes of subsection 53(2) of the Act, the following duties are declared to be combat-related duties:

(a)duties which require, or which are likely to require, a person to undertake training or preparation for, or in connection with, combat duties;

(b)duties which require, or which are likely to require, a person to work in support of a person performing combat duties.”

Section 99 of the Act provides :-

“99.     In determining whether an act is unlawful under a provision of Part 2, the Commission is not required to have regard to any exception or exemption provided for in that Part unless there is evidence before the Commission that the exception or exemption is or may be applicable in relation to that act.”

The Proceedings Before the Commissioner
It was common ground before the Commissioner that the HIV infection was a disability within the definition in s 4(1) of the Act. The second respondent contended, and the applicant conceded, before the Commissioner that the application of the ADF Service Policy by the ADF was a case of direct discrimination against the second respondent in terms of s 5(1) of the Act.

The applicant did not rely upon either s 48 or s 53 of the Act as exempting the conduct complained of from the operation of the prohibition contained in s 15(1) and s 15(2) of the Act. Rather, it sought to rely upon the provisions of s 15(4) as exempting the conduct
of the ADF, in applying the policy and dismissing the second respondent, from the operation of s 15(1)(b) and s 15(2)(c) of the Act.

The applicant submitted to the Commissioner that it was an inherent requirement of employment as a soldier in the Australian Army that he or she, upon enlistment, be able to undertake all necessary basic training as a soldier and thereafter be able to be deployed as required.  A soldier with HIV infection was unable to be trained or deployed, it was submitted, because the operational requirements placed a soldier at risk of injury whereby the soldier may discharge bodily fluid, including blood, exposing other members of the ADF to risk of infection.  Additionally, it was submitted, HIV positive soldiers could not give direct emergency blood transfusions in the field of operations as was from time to time required.

The second respondent submitted that the requirement that a soldier be HIV free was not an inherent requirement of employment as a soldier in the Australian Army. Rather, it was submitted, it was a requirement imposed by the ADF externally and in the absence of the requirement the second respondent was completely capable of carrying out all the functional requirements of the employment as a soldier, including deployment. An external requirement was not, it was submitted, an inherent requirement within the meaning of s 15(4).

The Decision of the Commissioner
  As to whether or not the second respondent posed a risk to other soldiers because of his HIV infection, the Commissioner found that “in the course of training or in combat there is a risk, the measure of which will vary with the circumstances that a soldier
may be infected with HIV by another who is HIV positive.”

It was this risk which, the applicant submitted, made the second respondent an unsuitable person for deployment in the service of the ADF. The applicant submitted that, because of his HIV infection, the second respondent was unable to carry out the inherent requirements of his employment, namely deployment as required, and thus the requirements of s 15(4) of the Act were satisfied.

The Commissioner rejected the applicant’s submission.  He rejected the suggestion that all persons who tested positive to HIV could as a class be excluded from employment merely because each person had the characteristic that he or she had returned a positive test.  The Commissioner thought it clear that “the inability or incapacity [to perform the inherent requirements of the employment] must be personal to the particular person because it must be consequential upon the disability itself.”  The Commissioner continued :-

“Take this simple case:  if the ‘inherent requirements’ of a job in a particular work place required the employee to use both hands, then clearly a disabled one armed person would suffer an inability to carry out the inherent requirements of the employment.  There is a distinct relationship there between the `inherent' requirement of the job and the personal incapacity of the employee, based on the disability.

In this case there is no present physical inability or incapacity based on the complainant’s HIV status that prevents him from undertaking deployment if it was so ordered or permitted.  He was a competent signaller:  he now works fulltime in arduous employment outside of ADF service;  his state of health, is in Dr Rhee’s terms, ‘excellent’.  If, therefore, the inherent requirements of service in the ADF in question is deployability, is there a clear relationship between that so-called inherent requirement and any alleged incapacity or inability derived from the disability?  The evidence in the case does not support any such relationship.

Rather the case for the respondent is that even though the complainant may be physically capable and able to undertake deployment if required, there remains a risk that circumstances may (or may not) arise in which there may be the chance that others may incur infection by the exchange or transmission of bodily fluid from one to the other.  This constraint upon deployment arises not because of the physical consequences of the disability in the particular person but because of an externally imposed requirement of the employer, based on policy considerations, which are designed to reduce the risk of passing on the HIV infection.

The question of construction therefore arises;  does s 15(4)(a) apply to exempt an employer in these circumstances?”

After drawing a distinction between the “inherent requirements” of employment and the incidents of employment, the Commissioner expressed his view that the “inherent requirements” of employment as a soldier are that the soldier be able to execute the tasks or skills for which he or she is specifically prepared as a soldier, irrespective of where the soldier is located or deployed.  It is an incident of the employment, said the Commissioner, that the soldier may or may not be deployed to a specific location.  The Commissioner concluded thus :-

“... The proper construction of the section, in my view, requires that for the exemption to apply, there must be a clear and definite relationship between the inherent or intrinsic characteristics of the employment and the disability in question, the very nature of which disqualifies the person from being able to perform the characteristics tasks or skills required in this specific employment. Only then can the employer avoid the unlawfulness which attaches to the discrimination.

This might be thought to be a construction of the exemption which is too narrow and restrictive.  On the other hand it must be recognised that this is Human Rights legislation which is intended to preserve rights and to render unlawful any act of discrimination which restricts the exercise of the particular right or which prevents a person from exercising that right, including the right to work by reason of some matter peculiar to the individual be it sex, race or disability.  The DDA is designed to ensure that individual persons because of some personal characteristic are not thereby excluded from exercising one or other of the human rights protected by the ‘International Labour Organisation Convention 111 concerning Discrimination In Respect of Employment and Occupation 1958’.

Any statutory exemption or defence to the unlawfulness which attaches to the discrimination should therefore in my view be construed strictly.

The special exemption in s 48 of the DDA which deals specifically with infectious diseases tends to support the construction of s 15(4) which is set out above.  Clearly the intention of the Parliament in enacting s 48 was to give qualified exemption against the unlawfulness which would  normally attach to the relevant act of discrimination.  If the disability relied upon to support the
act of discrimination is an infectious disease, that act of discrimination is exempted only if it is reasonably necessary to protect public health.  Clearly the statutory exemption in s 48 is designed to address questions raised by the incidence in the community of infectious diseases.  Such diseases are many and varied and are a fact of life.  The HIV infection is only one such infectious disease.  There is no statutory basis nor good reason for exempting the HIV infection from the operation of s 48.  Therefore, if it is intended in any situation, be it employment or otherwise, to discriminate against a person on the basis of a person’s disability, that disability being an infectious disease, it needs to be established that the discrimination is reasonably necessary to protect public health.

Since in this case the fact that the complainant is HIV positive is at the core of the act of discrimination, that discrimination may be excused if it can be supported in terms of s 48.  Section 15(4) is a more general provision designed to protect discrimination in employment if the disability is such that it creates an inability or incapacity in the disabled person to perform or carry out the inherent requirements of the employment.  That general provision should not be construed in a way which limits the scope of the operation of the special provisions in s 48.

That is not to say that a disability based on an infectious disease may never be relevant to the proper application of s 15(4).  The physical consequences of an infectious disease such as HIV, may become so severe and be productive of physical incapacity which is so disabling as to render the sufferer incapable of carrying out the inherent requirements of any form of employment, be it employment as a soldier or otherwise.  In that case s 15(4) may provide exemption.  But this is not such a case.  Nor does s 48 provide the exemption.

In my view therefore the case falls to be decided essentially within the statutory framework created by s 15(4) of the DDA.  Since in my view the respondent cannot bring itself within that statutory exemption it follows that the act of dismissal on the ground of the complainant’s disability, namely the fact that he was HIV positive, was unlawful.”

The Applicant’s Submission on the Application
Before me, the applicant submitted that :-

(a)The inherent requirements of particular employment are not confined to requirements related to the physical abilities or physical capacities of the employee to execute the tasks or skills of the particular employment.

(b)The inherent requirements of particular employment can include:

(i)requirements as to the physical environment in which the work is to be performed;  and

(ii)reasonable requirements imposed by the employer for the protection of the health and safety of fellow employees in such an environment.

(c)In determining whether an employee is unable to carry out the inherent requirements of a particular employment, s 15(4) of the Act does not limit relevant considerations to those which arise because of the physical consequences of the employee’s disability.

(d)In determining whether an employee is unable to carry out the inherent requirements of particular employment it is permissible for the employer to have regard to the impact of an employee’s disability on the employment relationship (including the safety of fellow employees).

The applicant submitted that the Commissioner erred in law in adopting a construction which rejected the matters set out in (a) - (d) above and specifically erred in confining the operation of s 15(4) to circumstances in which the employee’s inability arises from an intrinsic characteristic or consequence of the particular disability itself and from the physical consequences of the disability.

The applicant further submitted that, having accepted that it was at least an incident of the second respondent’s employment in the ADF that he be deployable for combat or combat-related duties without posing a risk to the health and safety of fellow employees, the Commissioner erred in declining to characterise this “incident” of employment as an inherent requirement within the meaning of s 15(4). Such other submissions as were made by the applicant will be dealt with generally in these reasons.

The Proper Construction of s 15(4) of the Act
The Act is to be construed bearing in mind the statutory objectives stated in s 3 of the Act. One of those objectives is to eliminate, as far as possible, discrimination against persons on the ground of disability in the area of work (s 3(a)(i)) and in the area of the administration of Commonwealth laws and programs (s 3(a)(iv)). Another is to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community (s 3(b)). The third stated object is to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community (s 3(c)).

Where legislation which protects or enforces human rights, as the Act does, falls to be construed, it is of particular importance to take account of and give effect to the statutory purpose of the legislation (Waters v Public Transport Corporation (1991) 173 CLR 349 at 359).

Where, in Division 1 of Part 2, the Act deals with discrimination in employment, the objective of the Act is not to dictate what requirements an employer may or may not properly impose in respect of any particular employment. Rather, it is to ensure that persons with disabilities are treated equally with persons without disabilities in respect of access to employment which is within the capacity of the disabled person to perform, notwithstanding the disability. Therefore, where a disabled person has the capacity to do the work, the Act has as one of its objectives the elimination of any requirement imposed by an employer which operates as discrimination against that person on the ground of that person’s disability.

Section 5 of the Act requires a finding as to whether or not a discriminator has discriminated against an aggrieved person on the basis of the person having a defined disability. It is sufficient that discrimination “on the ground of” a disability be established. There is no requirement that an intention or motive to so discriminate be established (Waters at 359).

The absence of intention or motive as a relevant consideration under s 5 has the effect that the reasonableness of any requirement which operates as a direct act of discrimination is irrelevant for determining whether discrimination has occurred and whether or not it is unlawful discrimination in relation to employment under s 15(1) or s 15(2). This is to be contrasted with indirect discrimination under s 6(b), where the reasonableness of a requirement or condition, having regard to the circumstances of the case, will remove the character of discrimination from the requirement to comply with the requirement or condition.

Once discrimination against a person on the ground of a disability is established under either s 5 or s 6 of the Act, the question of the reasonableness of the discrimination has no role to play in the operation of s 15(1) or s 15(2).

The present case has been conceded by the applicant to be one of direct discrimination arising under s 5 of the Act. Therefore, no issue under s 6 arises for consideration.

Where an employer discriminates, whether directly or indirectly, against an employee or potential employee on the ground of the disability in respect of any of the
specified acts in s 15 (1)(a), s 15(1)(b) or s 15(1)(c) and s 15(2)(a), s 15(2)(b) or s 15(2)(c) that conduct is, by force of the section, unlawful. Again, the section only requires that the conduct be established as objective fact. An intention or motive to discriminate need not be proved. Unless a discriminator comes within the exceptions contained in s 15(3) or s 15(4), or one of the exemptions contained in Division 5 of Part 2 of the Act, the conduct remains unlawful.

The purpose of the exception contained in s 15(4) is clear; a person with a disability has no right to complain of discrimination on the ground of that disability in respect of a particular job where the person does not have the capacity to do the job because of the disability.

The question to be answered under s 15(4) is whether the particular individual involved can do the job notwithstanding his or her disability. The question is personal to the employee or applicant for employment and the requirement to take into account “the person’s past training, qualifications and experience relevant to the particular employment” and “the person’s past performance as an employee” confirms that this is so. Further, the inability to do the job must be causally related to the disability. This follows from the language used: “the person because of his or her disability would be unable ...” The question raised by s 15(4) is not whether all persons having the disability are per se incapable of doing the job. Therefore, questions of the adoption and enforcement of policies which discriminate generally against persons having one or other of the specified disabilities are irrelevant for the purposes of s 15(4) of the Act.

Capacity to do given work is related to the kind of work required to be done
rather than the kind of person required to do it. Thus, s 15(4) requires at the outset that the particular employment be identified and that the kind of work required to be done in that employment be identified. The “particular employment” for the purposes of s 15(4) of the Act is in each case a question of fact to be determined by the Commissioner.

Beyond the elimination of discrimination against persons on the ground of a disability, it is not an object of the Act :-

“... to deprive an employer of the right to decide what his needs are, or to give to any tribunal the right to say that an employee of different qualifications to those required by the employer could fill the position.  It is for the employer to fix the duties of the position and to prescribe his own needs and the capacity of competing applicants is to be judged in relation to the employer’s actual requirements and not in accordance with what someone else might think would be sufficient for the position.”

(Davis v Western Suburbs Hospital (1941) 42 SR (NSW) 26 at 31 per Street J).

Although spoken in the context of legislation which discriminated in favour of returned servicemen, the same approach is apposite to the construction of the Division 1 of Part 2 of the Act, including s 15(4). However, it is not the purpose of s 15(4) to authorise or allow an employer to impose otherwise unlawful discriminatory requirements or conditions to the obtaining or retaining of employment and thereby make it an inherent requirement of the particular employment that the applicant or employee not be disabled. This is so irrespective of the motive or intention for introducing such a requirement. Nor will the language of s 15(4) of the Act bear such a construction. Having regard to the objects of the Act and Division 1 of Part 2 as a whole, it would require clear words to allow an employer to implement a policy of discrimination against persons with one or other specified disabilities on the ground that such discrimination was a necessary requirement of the particular employment (an example of such an express provision is to be found in s 15(1) of the
Canadian Human Rights Act 1985).

Accordingly, the work required to be done in any particular employment will depend upon the duties and tasks actually fixed by the employer, including the manner in which and mode by which those duties and tasks are to be carried out. Where these matters are not fixed by the employer, then the general nature of the work itself will indicate what, in a functional sense, has to be done to do the work. The performance of the work must also be in the context of the common law duty of care owed by a worker to co-workers and others in a relationship of proximity to the worker when the work is performed. The Act does not seek to abrogate the common law duty of care. Thus, in the context of s 15(4) of the Act, ability or capacity to carry out the inherent requirements of the particular employment means ability or capacity consistent with the discharge of the common law duty of care to avoid risk of loss or harm to others having regard to the person’s past training, qualifications and experience relevant to the particular employment, the person’s performance as an employee and all other relevant factors that it is reasonable to take into account.

Although it may be correct to say, as the applicant did, that the inherent requirements of a particular employment are not confined to the requirements related to the physical abilities or physical capabilities of an employee to execute the tasks or skills of the particular employment, non-physical requirements must not operate as unlawful discrimination under the Act.

The inherent requirements of a particular employment are the necessary tasks required to be performed and the personal characteristics or qualifications, if any, required by the employer, divorced of any requirement or condition the enforcement of which would constitute discrimination against a person on the ground of a disability. So understood, the inherent requirements of the particular employment will have functional requirements and requirements as to the satisfaction of any externally imposed personal characteristics or qualifications. To take as an example the position of a factory machinist who is required to be a non-smoker. The inherent requirements of such a position are that the employee is capable of operating the machine and does not smoke. The non-smoking requirement discriminates against applicants who smoke. However, it is not discrimination unlawful under the Act. For the purposes of s 15(4) of the Act, one of the inherent requirements of the particular employment would be that the applicant or employee did not smoke.

No regard is to be had to s 15(4) unless there is evidence before the Commission that the conduct in issue is, or may be, excepted or exempted from the operation of the Act (s 99).

In order to obtain the benefit of the exception contained in s 15(4) of the Act, the employer bears the onus of establishing the inherent requirements of the particular employment and that the person would be unable to carry out those inherent requirements because of his or her disability. The employer must show that the employee or applicant for employment cannot (with or without accommodation: s 15(4)(a) and s 15(4)(b)), because of his or her disability, perform the requirements of the particular employment which are truly necessary to ensure the adequate performance of the employment. Although the Commission is not bound by the rules of evidence (s 98(1)(a)), such matters are to be established on the balance of probabilities based on relevant and credible evidence, taking into account the circumstances specified in s 15(4), and according to the dictates of common sense, as matters of objective fact and not as matters of mere speculation or impression.
The present application
Once it is accepted that s 15(4) does not allow an employer to impose a discriminatory requirement or condition as a requirement of a particular employment, the basis upon which the applicant sought to sustain the enforcement of the ADF Service Policy for the detection, prevention and administrative management of HIV as lawful, fails. To sustain the argument that the dismissal of the second respondent was not an unlawful act of direct discrimination against him because of his HIV status, the applicant was required to satisfy the Commissioner that the second respondent was unable to carry out the inherent requirements of his employment as an enlisted soldier because of his disability.

It is not sufficient to contend, as the applicant did, that the provisions of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) (“O H & S Act”) require that s 15(4) of the Act be construed so as to allow the applicant to discriminate generally against persons who test positive to HIV by refusing such persons enlistment in the ADF or by dismissing such persons from the ADF on the grounds of occupational health and workplace safety. The applicant submitted that in civilian employment an employer would be entitled to refuse to employ or dismiss a person with an infectious disease if there was a risk of infection of a co-worker with the disease. An example given by the applicant was that of an actor infected with tuberculosis who was required by the script of a play to kiss another actor on the mouth; the kiss being an essential part of the plot of the play. A similar example could be given of a lifeguard on duty at the beach who may be required as part of his or her normal duties to give mouth to mouth resuscitation to a drowning victim.

In my view, the analogy sought to be drawn is not a valid one. In each example it is an inherent requirement of the position of actor or lifeguard that the person be able to engage in mouth to mouth contact. The common law duty of care would require that that task be performed by the actor or lifeguard without unreasonably exposing the other person to risk of infection with tuberculosis. In each case, the actor and the lifeguard would be unable to perform an inherent requirement of the employment, namely to engage in mouth to mouth contact. Therefore, for the purposes of s 15(4) of the Act, each would be unable to carry out the inherent requirements of the particular employment because of his or her disability (the tuberculosis). In neither case would the operation of the exemption in s 15(4) of the Act depend upon the duty of an employer to take all reasonable steps to protect the health and safety of employees or third parties (s 16 and s 17 of the O H & S Act) or upon the implementation of a policy to discriminate against carriers of tuberculosis in providing employment as actors or lifeguards.

The Commissioner found that the second respondent applied for enlistment in the ADF and made an affirmation of service. As such he was enlisted as a male general enlistee into the Australian Army and stationed at Kapooka in Wagga Wagga, New South Wales, in No 1 Recruit Training Battalion. The effect of the Commissioner’s findings was that the complainant was employed for the purposes of the Act as a soldier in the Australian Army. The “particular employment” for the purposes of s 15(4) was accordingly that of an enlisted soldier.

The relationship between a soldier as a member of the Australian Army and the Crown is defined and regulated by the common law and the statutes dealing with the defence forces construed against that common law background (Marks v The Commonwealth (1964) 111 CLR 549 at 573; Coutts v The Commonwealth (1985) 157 CLR 91 at 98 - 99, 109, 121). Nonetheless, the statutory provisions are to be construed according
to ordinary principles of statutory construction (Coutts at 109).

Members of the Australian Army are under discipline and have duties and obligations to perform in the discharge of their service as officers or soldiers in the Army.  Breach of a duty or obligation gives rise to disciplinary punishment (The Commonwealth v Quince (1944) 68 CLR 227 at 254 - 255; Marks at 573; Groves v The Commonwealth (1982) 150 CLR 113 at 134, 137).

The statutory context of the relationship, so far as is presently relevant, is found in s 36, s 45(1) and s 50 C of the Defence Act 1903 (Cth).

Section 36 provides :-

“36.(1)       A person may volunteer to serve as a soldier in a particular part of the Army:

(a)for a fixed period;  or

(b)until attaining retiring age.

(2)                   If accepted for service in that part of the Army, the person shall take and subscribe, as prescribed, an oath or affirmation in the appropriate prescribed form.

(3)The taking and subscribing of the oath or affirmation:

(a)constitutes the enlistment of the person in that part of the Army for that period or until attaining retiring age, as the case may be;  and

(b)binds the person to serve in the Army in accordance with the tenor of the oath or affirmation.”

Sub-section 45(1) provides :-

“45.     (1)       Members of the Australian Regular Army or of the Regular Army Supplement are bound to render continuous full time military service.”

Section 50C provides :-

“50CMembers of the Army may be required to serve either within or beyond
the territorial limits of Australia.”

The oath or affirmation provides that the soldier :-

“ ... will well and truly serve her Majesty Queen Elizabeth the Second her heirs and successors according to law as a soldier in the Australian Regular Army for the period of [ .. ] years or until my service is sooner lawfully terminated, that I will resist her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law.”

The oath or affirmation recognises the right of a member of the Army superior in rank to give lawful orders to a member inferior in rank and the obligation imposed on the member inferior in rank to obey those orders (Quince at 255; Groves at 137).

The combined effect of the statutory provisions, the terms of the oath or affirmation of a soldier upon enlistment and the obligation of obedience, is that a soldier in the Australian Army is required to go anywhere and to perform any lawful duties required of him or her by the Australian Army.  This includes training, combat, combat-related and peace-keeping duties, as, when and where required by the Australian Army.

So understood, the inherent requirements of employment a soldier were found by the Commissioner to be :-

“... that the soldier be able to execute the tasks or skills for which he/she is specifically prepared as a soldier irrespective of where the soldier is located or deployed.  It is an incident of the employment that the soldier may or may not be deployed to a specific location.”

The requirements of the particular employment, as found by the Commissioner, do not require any lawful personal characteristic beyond a physical capacity to execute the tasks.  On the evidence accepted by the Commissioner, the second respondent’s HIV status at the time of his dismissal from the ADF did not effect his physical capacity to execute the tasks required of him, although progression of the disease to AIDS in the future may have done so.

Contrary to the submission of the applicant, the Commissioner did not find that it was an incident of the second respondent’s employment in the ADF that he be deployable for combat or combat-related duties without posing a risk to the health and safety of fellow employees. The Commissioner found that there was a risk of infection with HIV in the course of training or in combat which will vary with the circumstances. The Commissioner found that the risk of such infection from injury in the workplace was not restricted to the ADF, and cited the situation of factory process workers. The Commissioner’s statement that, “Were the circumstances of the case to fall within s 53 of the DDA it would not be unlawful, in my view, to discriminate against an HIV positive soldier on the ground of his disability”, is obviously legally correct. This is not because the statement carries any implied finding that it was an incident of the second respondent’s employment that he be deployable for combat or combat-related duties without posing a risk to the health and safety of fellow employees. Rather the statement recognises that s 53 allows discrimination against a person on the basis of his or her disability in the circumstances provided for in the section. However, as pointed out by the Commissioner, in the absence of the necessary regulations, s 53 had no relevant operation to the proceedings before him and the applicant did not and could not rely upon the section to justify its discrimination against the second respondent.

To sustain the argument that the second respondent was unable to carry out the inherent requirements of employment of a soldier, because he was HIV positive, the applicant
needed to obtain from the Commissioner as a finding of fact that it was an inherent requirement of employment as a soldier that he or she “bleed safely”, so far as the risk to others including fellow soldiers of infection with HIV is concerned. The applicant did not seek such a finding of fact. Nor sensibly could it have sought such a finding. Risk of injury in the workplace which may give rise to bleeding or loss of bodily fluid, as a matter of theoretical possibility, exists in all employment situations. Someone may trip on a stair, fall and suffer an injury which bleeds and co-workers may run to offer assistance and come into contact with blood or bodily fluid. In this respect a soldier is in no different position to any other person in employment. If it is lawful to discriminate against a person who wishes to enlist in the Australian Army solely on the basis that the person is HIV positive because it is an inherent requirement of employment as a soldier that the person “bleed safely”, in the sense used above, if injured, then logically such a discriminatory practice against carriers of HIV would be lawful in all employment situations. Such a result would be anathema to the statutory objects of the Act.

It was for the Commissioner to find as facts the particular employment and the inherent requirements of that employment. The Commissioner’s finding that the particular employment was as an enlisted soldier was not challenged. Although I consider the Commissioner’s characterisation of the inherent requirements of employment for the purposes of s 15(4) as being limited to the physical capacity to execute the tasks or skills of the particular employment as being too narrow, the wider characterisation which I have adopted would not lead to a different result in the instant case because the physical capacity of the second respondent to execute the tasks or skills of a soldier was in fact the only relevant requirement.

The finding of fact that the second respondent’s HIV positive status did not, at the relevant time, render him unable to or incapable of executing the tasks or skills required of him wherever located or deployed has not been shown to have been arrived at by the application of an error of law. I agree with the Commissioner that there must be a functional relationship between the disability and the inability of the second respondent, if any, to execute the tasks or skills required of a soldier which is personal to the second respondent. A refusal on the part of the ADF to use the second respondent to execute those tasks or skills which he is physically capable of doing does not have the necessary functional relationship to satisfy the requirements of s 15(4) of the Act.

I also agree with the Commissioner that, as a matter of construction, s 15(4) of the Act does not allow an employer to impose a discriminatory condition or requirement, which would otherwise amount to unlawful discrimination under the Act, and require compliance with the condition or requirement as one of the inherent requirements of a particular employment within s 15(4).

Section 15(4) requires that, notwithstanding his or her disability, the employee or applicant for employment must be able to perform the functions and tasks required in the particular employment without exposing co-workers and others to whom a duty of care is owed to unreasonable risk of loss or harm before it can be said that the person is able to do the job. Therefore, issues of general workplace safety are accommodated within the ordinary operation of s 15(4). There is no need or occasion to allow employers to implement policies of discrimination against persons with disabilities in the name of occupational and workplace safety. The Act recognises that in some situations, for reasons of policy, discrimination against persons with disabilities on the basis of the disabilities ought not to be unlawful.
Those circumstances are dealt with as exemptions under Division 5 of Part 2 of the Act.

Conclusion
The applicant has failed to make out any ground for the relief sought. Although the Commissioner has construed s 15(4) as limited to an assessment of whether an employee has or has not the physical capability to be able to carry out the inherent requirements of the particular employment, a construction which I consider too narrow, it has not been shown that any wider construction applied in respect of the second respondent’s employment as an enlisted soldier in the ADF would lead to any other result than that arrived at by the Commissioner. The application will be dismissed with costs.

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first and second respondents’ costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

I certify that this and the preceding twenty-six (26) pages are a true copy of the reasons for judgment of his Honour Justice Cooper.

Date:   31 October 1996

Associate

Counsel for the Applicant:  R Tracey QC with him T Howe

Solicitors for the Applicant:  Australian Government Solicitor

Counsel for the Second

Respondent:  C Holmes

Solicitors for the Second

Respondent:  Legal Aid Office (Queensland)

Date of Hearing:  18 March 1996

Place of Hearing:  Brisbane

Date of Judgment:  31 October 1996