GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
APPELLANT
AND
THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT
X v The Commonwealth [1999] HCA 63 2 December 1999 B53/1998
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
H B Fraser QC with C E Holmes for the appellant (instructed by Legal Aid Queensland)
R R S Tracey QC with T M Howe for the first respondent (instructed by Australian Government Solicitor)
No appearance for the second respondent
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
X v The Commonwealth
Discrimination law – Disability discrimination – Appellant discharged from army on account of HIV-positive status – Discrimination admitted – Discrimination alleged to be lawful – Appellant alleged to be unable to carry out the inherent requirements of the particular employment – Meaning of "inherent requirements of the particular employment" in s 15(4)(a) of the Disability Discrimination Act 1992 (Cth) – Whether appellant "unable" to perform inherent requirements with reasonable safety.
Discrimination law – Disability discrimination – Infectious disease – Whether s 48 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination on account of an infectious disease is lawful.
Discrimination law – Disability discrimination – "Combat duties" and "combat-related duties" – Whether s 53 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination in relation to "combat duties" and "combat-related duties" is lawful.
Administrative law – Application for order of review – Error of law – Whether applicant must show a different result was inevitable or merely open if no error was made.
Words and phrases – "inherent requirements", "unable to perform".
GLEESON CJ. This is an appeal from the Full Court of the Federal Court of Australia. That Court (Burchett, Drummond and Mansfield JJ)[1], allowing an appeal from Cooper J at first instance[2], made an order setting aside a decision of the second respondent, the Human Rights and Equal Opportunity Commission, and remitted the matter to the Commission for further consideration.
The orders of the Federal Court were made in the exercise of its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The foundation for such an exercise of jurisdiction was a finding that the decision of the Commission involved an error of law[3].
The relevant facts, and statutory provisions, and the issues that arose for the determination of the Commission, are set out…
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.
Continue reading X v Commonwealth
Sign in free to access the full text
Details
AGLC
X v Commonwealth [1999] HCA 63
Case
[1999] HCA 63
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by X against the Commonwealth concerning a finding of unlawful discrimination. X, who had enlisted in the Australian Regular Army, was discharged shortly after enlistment upon testing positive for HIV. The Commonwealth admitted discrimination but argued it was lawful under the *Disability Discrimination Act 1992* (Cth). X alleged his discharge was unlawful discrimination.
The central legal issues before the High Court were the meaning of "inherent requirements of the particular employment" under s 15(4)(a) of the *Disability Discrimination Act 1992* (Cth), specifically whether this encompassed the risk an employee might pose to the health and safety of colleagues. The Court also considered whether ss 48 and 53 of the Act provided exclusive codes for determining the lawfulness of discrimination based on infectious diseases or in relation to combat duties, respectively.
The High Court held that the "inherent requirements" of employment extend beyond the physical capacity to perform a task to include the ability to work without posing a risk to the health or safety of fellow employees. This principle was applied to X's situation, meaning that the risk of transmission of HIV to other soldiers could be considered an inherent requirement of Army service. The Court found that the Commission had erred in confining the meaning of inherent requirements solely to the physical ability to perform tasks. The Court did not definitively determine whether X posed a risk, stating this was a matter for the Commission to determine on a new hearing.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
It was right because, contrary to the reasoning of the Commission, "the inherent requirements" of a "particular employment" are not confined to the physical ability or skill of the employee to perform the "characteristic" task or skill of the employment. In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees. That is also the situation with Army service. Whether X does in fact pose a risk to his fellow soldiers by reason of his particular employment is a matter that will have to be determined by the Commission in a new hearing.The factual background On 23 November 1993, X enlisted as a general enlistee in the Australian Regular Army. Prior to his enlistment, X acknowledged that he knew that he would have to be tested for HIV, Hepatitis B and Hepatitis C as part of a post-entry medical check and that he would be discharged from the Army if he tested positive to HIV, Hepatitis B or Hepatitis C. After enlistment, X commenced recruit training, including drill and physical training. During this period he was given a blood test. On 21 December 1993, an Army Medical Officer informed X that he had tested positive to HIV. On 24 December 1993, X was discharged from the Army in accordance with the ADF Policy for the Detection, Prevention and Administrative Management of Human Immunodeficiency Virus (HIV) Infection, issued on 6 July 1989, cl 12 of which relevantly provided that, "[a]s with newly inducted entrants in whom other potentially serious diseases have been detected, personnel with HIV infection are to be discharged." Following his discharge, X lodged a complaint with the Commission pursuant to ss 5 and 15 of the Act, alleging that his discharge from the Army upon testing positive to HIV was unlawful discrimination. The Commission conducted an inquiry into the complaint pursuant to s 79 of the Act. The Commonwealth did not contend before the Commission that X was unable to carry out the "inherent requirements" of his employment as a soldier within the meaning of s 15(4) because he was physically incapable, by reason of his illness, of carrying out combat-related tasks of a soldier. The Commonwealth could not do so because the evidence proved that, at the time of his discharge, X was at a stage of HIV infection where no ill effects or symptoms are suffered. Indeed, X's doctor gave evidence that at the time of his discharge, X was in "excellent" health[5]. Instead, the Commonwealth's argument focused on the risk which X may pose to other soldiers by reason of his HIV infection.[5]X v Department of Defence unreported, Human Rights and Equal Opportunity Commission, 29 June 1995 at 5. The Hon W J Carter QC (the "Commissioner"), who constituted the Commission for the purpose of the proceedings, held that the complaint had been substantiated and that the dismissal of X from the Army on the ground that he was HIV-positive was unlawful[6].[6]X v Department of Defence unreported, Human Rights and Equal Opportunity Commission, 29 June 1995 at 15.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH J
GUMMOW AND HAYNE JJ
CALLINAN J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH J,
GUMMOW AND HAYNE JJ,
CALLINAN J