Commonwealth of Australia v Williams - [2002] FCAFC 435

FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Williams
[2002] FCAFC 435
ANTI-DISCRIMINATION LEGISLATION – disability discrimination – termination of employment of member of Australian Defence Force because of insulin dependant diabetes – member a communications and information systems controller in Royal Australian Air Force – whether employment in a position involving the performance of combat-related duties
WORDS AND PHRASES – “position involving the performance of combat-related duties”
Disability Discrimination Act 1993 (Cth) ss 15(4), 53(1)(a)
Disability Discrimination Regulations SR 27 of 1996 regs 3,4
Williams v Commonwealth of Australia [2002] FMCA 89 reversed
X v Commonwealth (1999) 193 CLR 177 at 190 referred to
Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [72] applied
COMMONWEALTH OF AUSTRALIA v GARY WILLIAMS
D 15 of 2002
HILL, HEEREY AND GYLES JJ
20 DECEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 15 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPELLANT

AND:

GARY WILLIAMS
RESPONDENT

JUDGE:

HILL, HEEREY AND GYLES JJ

DATE OF ORDER:

20 DECEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The appeal is allowed.

The judgment below is set aside and in lieu thereof it is ordered that the application be dismissed.

The respondent pay the appellant’s costs of the appeal and at first instance.

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

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 15 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPELLANT

AND:

GARY WILLIAMS
RESPONDENT

JUDGE:

HILL, HEEREY AND GYLES JJ

DATE:

20 DECEMBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
THE COURT:

On 3 March 2000 the respondent Gary Williams was discharged from the Royal Australian Air Force (RAAF) on medical grounds. He was suffering from insulin dependent diabetes (IDD), a condition which had been diagnosed on 2 October 1989. A Federal Magistrate held that the discharge of the respondent had constituted unlawful discrimination contrary to s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the DD Act): Williams v Commonwealth of Australia [2002] FMCA 89. The Commonwealth appeals from that decision.
Legislation
Section 15(2)(c) of the DD Act provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee’s disability by dismissing the employee. It was not in dispute that the respondent’s IDD was a disability and that the Commonwealth dismissed him on that ground. However, the Commonwealth relied on two provisions of the DD Act as justifying its action. The first of these is s 53(1) which relevantly provides:
“This Part [ie Part 2, including s 15] 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 peace…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCAFC 435
Decision Date: 20 DECEMBER 2002

CaseChat Overview and Summary

In the case between the Commonwealth of Australia and Williams, the High Court of Australia was tasked with reviewing a decision concerning the applicability of the Defence Discrimination Act 1984 (Cth). Williams, an employee of the Australian Defence Force, contested the decision that certain provisions of the Act did not apply to him based on the nature of his duties, which were deemed not to be combat-related. The case centred around the interpretation of sections 15(4) and 53(1)(a) of the Act, and whether these sections granted immunity from discrimination claims for certain Defence Force employees.

The primary legal issue the court had to decide was whether the respondent’s employment duties were inherently combat-related or combat-supporting, which would exempt him from the discrimination provisions of the Act. The court needed to clarify the scope of the term “combat-related duties” and how it relates to the specific duties of the respondent. Additionally, the court had to determine if the respondent's employment was sufficiently distinct from combat roles to fall within the discrimination provisions of the Act.

The court found that the primary judge had erred in his interpretation by focusing on the actual duties performed by the respondent rather than the inherent requirements of the position. The court held that the statutory language in section 53(1)(a) of the Defence Discrimination Act, when read in conjunction with the regulations, refers to positions that inherently require the performance of certain duties, regardless of what the employee may actually do on a day-to-day basis. The court emphasised that the inquiry should focus on the inherent requirements of the position, not the actual duties performed by the employee. Consequently, the appeal was allowed, the lower court’s judgment was set aside, and the application was dismissed. The respondent was also ordered to pay the appellant’s costs of the appeal and at first instance.

Orders

Orders of the court

1. The appeal is allowed.

2. The judgment below is set aside and in lieu thereof it is ordered that the application be dismissed.

3. The respondent pay the appellant’s costs of the appeal and at first instance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL, HEEREY AND GYLES JJ

His Honour found (at [147]) that “combat or combat-related duties were not an inherent requirement of this particular employment”. His Honour then mentioned a passage from X v Commonwealth (1999) 193 CLR 177 at 190 and continued (at [153]):“In relation to s 53(1)(a) of the DD A[ct] it is clear from the decision of X v Commonwealth that that section is not an exclusive code concerning discrimination against employees of the Defence Force. Although it defines an area where the executive can remove from the jurisdiction of the Human Rights and Equal Opportunity Commission that [sic] it is still appropriate to make an assessment of the reality as to whether or not the member, and in particular that the Applicant in the present case in truth and in fact can be described as a person in a position involving the performance of combat duties, combat related duties or peacekeeping services having regard to the relevant definitions. To conclude that any work in support of persons performing combat duties would encompass the activities of the Applicant and thereby remove from the jurisdiction of this Court the application of the discrimination provision of the DD A[ct] in my view is too general having regard to my findings of fact as to the reality of the Applicant’s employment.… To apply a ‘blanket’ immunity from the application of the DD A[ct] simply on the basis of a general interpretation of combat related duties will be inconsistent with the day to day reality of the Applicant’s inherent requirements of his particular employment in my view is not sustainable. If that were the case then s 53 would only need to say that this part does not render it unlawful for a person to discriminate against another person who is employed, engaged or appointed in the Defence Forces. The section clearly contemplates the distinction between combat and non combat personnel and for the reasons stated I am not satisfied that on the evidence in this particular case that the Applicant could be regarded as a person who could be said to be in a position involving the performance of combat duties or combat related duties.”Conclusion on the appeal It seems to us that the problem with his Honour’s approach is that he commenced with s 15(4) and found that combat-related activities were not an inherent requirement of the particular employment in fact engaged in by the respondent in a “real or actual day to day sense”. In truth, the logical starting point is s 53. If the requirements of that section are satisfied, s 15(2) can have no application. More importantly, concentration on what the evidence showed the respondent was in fact doing carried over to his Honour’s subsequent consideration of s 53 where his Honour again spoke of “the day to day reality” and whether the respondent was in fact in a position involving performance of combat-related duties. But s 53 uses different language and is concerned with a different concept. Section 15(4) focuses on the actual duties and tasks an employee is required to carry out. Section 53 by contrast, when read in conjunction with the definitions in the Regulations, is speaking of a position which requires the person holding the position to perform certain duties (although other duties may be required).

Ratio Decidendi

Legal Principle Established

Established by: HILL, HEEREY AND GYLES JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 15 OF 2002

BETWEEN:	COMMONWEALTH OF AUSTRALIA APPELLANT
AND:	GARY WILLIAMS RESPONDENT
JUDGE:	HILL, HEEREY AND GYLES JJ
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	MELBOURNE

JUDGE:	HILL, HEEREY AND GYLES JJ
DATE:	20 DECEMBER 2002
PLACE:	MELBOURNE