Commonwealth v Human Rights and Equal Opportunity Commission

FEDERAL COURT OF AUSTRALIA

HUMAN RIGHTS - Army recruit discharged because infected with HIV virus - whether it is an inherent requirement of military service that a soldier’s bleeding not endanger the lives of comrades by reason of the blood borne infections HIV and hepatitis B and C - construction of s 15(4) of the Disability Discrimination Act 1992 - duty of soldier to be available for deployment as required - whether Army’s policy related to an “inherent requirement” of service within s 15(4) or only an operational requirement - whether that distinction valid - effect of statutory requirement to take account of “all ... relevant factors that it is reasonable to take into account” - place in employment of interaction with others and ability to cope with what may be unusual but will be expected to happen at times - place of health and safety considerations - establishment of inherent requirements - discussion of US and Canadian authorities - distinction between s 15(4) of Disability Discrimination Act 1992 and s 170DF of Industrial Relations Act 1988 - whether s 15(4) should be limited by reference to s 48 - whether s 48 covers all risks of infection - discussion of s 53, dealing with combat service and related duties - place of practicability in statutory scheme - role of employer’s duty of care - whether inherent requirements could be limited to physical performance of essential tasks of the job - whether ensuring the safety of others could be an inherent requirement of an employment - discussion of the possible relationship between provisions of the Act concerning sport and those concerning work and the need to give each provision its proper weight.

ADMINISTRATIVE LAW - whether an appellant in an administrative law appeal, showing error in the administrative decision, must also show a correct view would lead to a different result - whether true rule is appellant must show error that could have affected the result - whether, on the facts found, the remaining question was a question of law for the Court or whether a further factual finding required remittal for fresh hearing - whether respondent Commission should have filed only a submitting appearance as it had a role as a Tribunal requiring its impartiality to be preserved - whether its active argument in the appeal justified a costs order against it.

STATUTORY INTERPRETATION - discussion of rule requiring remedial legislation to be liberally construed - rule to be applied with a watchful eye and not so as to produce illiberal effects or distort a balance struck by the legislation - complexity and particularity of the legislation as indications it should be applied according to its terms - danger of glosses and synonyms as substitutes for statutory language - use of foreign decisions where legislation is based on UN Convention - whether a general exemption from a statute should be read down to avoid overlapping or tautology by reference to a specific exemption.

Disability Discrimination Act 1992, ss 3,…