Commonwealth of Australia v Human Rights and Equal Opportunity Commission

The case before the court was an appeal by the Commonwealth of Australia against a decision of the Human Rights and Equal Opportunity Commission, which found that the dismissal of an enlistee from the Australian Defence Force on the basis of his HIV status was unlawful discrimination. The court was required to determine whether the dismissal was in fact unlawful discrimination under the Disability Discrimination Act 1992 (Cth). The central issue was whether the enlistee's HIV status constituted a disability that rendered him unable to carry out the inherent requirements of his employment as a soldier.

The court found that the statutory objectives of the Act, including eliminating discrimination against persons on the ground of disability and ensuring equal rights, were to be taken into account in construing the Act. The court held that the inherent requirements of employment were the necessary tasks required to be performed and the personal characteristics or qualifications required by the employer, divorced of any discriminatory requirements or conditions. The court rejected the applicant's submission that inherent requirements could include external requirements imposed by the employer for the protection of the health and safety of others. The court held that to obtain the benefit of the exception in s 15(4) of the Act, the employer must establish that the employee or applicant for employment cannot perform the requirements of the particular employment which are truly necessary to ensure the adequate performance of the employment.

Applying this construction of the Act, the court found that the Commissioner's determination that the enlistee's HIV status did not render him unable to carry out the inherent requirements of his employment as a soldier was not arrived at by the application of an error of law. The court held that there must be a functional relationship between the disability and the inability, if any, to execute the tasks or skills required of a soldier which is personal to the enlistee. The court rejected the applicant's submission that the inherent requirements of employment as a soldier included being deployable for combat or combat-related duties without posing a risk to the health and safety of fellow employees.

The court concluded that the applicant had failed to make out any ground for the relief sought and dismissed the application with costs. The court found that the Commissioner's construction of s 15(4) as limited to an assessment of whether an employee has the physical capability to carry out the inherent requirements of the particular employment, while too narrow, did not lead to any other result in this case. The court held that the dismissal of the enlistee on the ground of his HIV status was unlawful discrimination under the Act.