X v Commonwealth of Australia
[1999] HCATrans 185
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B53 of 1998
B e t w e e n -
“X”
Appellant
and
COMMONWEALTH OF AUSTRALIA
First Respondent
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON TUESDAY, 22 JUNE 1999, AT 10.21 AM
(Continued from 21/6/99
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Fraser.
MR FRASER: His Honour Justice Kirby asked me yesterday how many people were in the Australian Defence Force. From my own inquiries, and as a result of discussion with my learned friend, we have agreed that the figure is around 58,000. The other point mentioned yesterday ‑ ‑ ‑
KIRBY J: The question was more in the nature of metaphor; the question of exact statistics.
MR FRASER: No, but I thought it might be useful to have a global figure. Another point mentioned yesterday by my learned friend was section 124 of the Disability Discrimination Act which, we would respectfully submit, answers the question raised concerning whether the Commonwealth is an employer. Section 124, read with the definition in section 4(1), of “Commonwealth employees”, we submit, makes it clear that section 15(2)(c) did apply to the Commonwealth as employer of the appellant.
GUMMOW J: Section 125 is not unimportant also.
MR FRASER: Yes.
GUMMOW J: What would the remedy be here? Section 106F, is it, or not?
MR FRASER: Your Honour, the remedy is initially via the Commission, of course. The determination provision is section 103 and then, of course, the subsequent provisions that have to deal with enforcement. The Act provides ‑ ‑ ‑
GUMMOW J: What was the remedy sought here, from the Commission?
MR FRASER: What was sought was reinstatement and other remedies, but the way the matter developed is recorded in the appeal record at page 16 line 15, that the parties requested the Commissioner who agreed to defer:
the question of the appropriate relief until –
after –
the parties had had the opportunity of reading the substance of this decision.
So the stage has not been reached.
GUMMOW J: Where would the power to reinstatement come from?
MR FRASER: In section 103(1)(b)(iii) there is a provision for a declaration that the respondent should:
re-employ the complainant;
GUMMOW J: That is not compulsory?
MR FRASER: No, one would then have to proceed in the Federal Court under a later division to enforce the remedy.
GUMMOW J: Section 106B(1)?
MR FRASER: Yes.
GUMMOW J: That is linked to section 102 and then section 106B(2) is linked to section 103 and that would seem, by force of the statute, to oblige the Commonwealth to do what was declared. Is that how it would work?
MR FRASER: Yes, your Honour. There are provisions specifically concerning damages later on in section 106D and then there are consequential provisions also in section 106F.
GUMMOW J: You would not have to go to the Federal Court, would you, to…..the Commonwealth?
MR FRASER: No, your Honour.
GUMMOW J: Section 106D(2) would make the damages a debt.
MR FRASER: Yes, that is so. His Honour Justice Gummow also asked me about the definition of “Defence Force”. There is no definition in this Act nor in the Acts Interpretation Act nor in the Defence Act, but the provisions of the Defence Act do make it clear what it means. If I could hand up multiple copies of those to deal with that point. This is an extract from ‑ ‑ ‑
GUMMOW J: Well, they make it clear what it means for that Act.
MR FRASER: Yes, your Honour, but one sees the same technique adopted in a lot of other Commonwealth legislations.
GUMMOW J: Well, it is slovenly which is often generally.
MR FRASER: I have extracted from reprint No 3, which contains the provisions in the form in which they were in at the relevant time. Part of Part III Division 1, particularly relevant are sections 30, 31, 32(1) and 32(2)(a), section 36(2) and (3) are also relevant and the context of those provisions and the soldier’s oath mentioned in section 36 are set out in a passage I cited yesterday in Justice Cooper’s judgment at appeal record, 43 to 45.
GUMMOW J: Thank you.
MR FRASER: Also in relation to an issue raised by his Honour Justice Gummow as to the application of section 39B of the Judiciary Act, at the appeal record, page 17, the application did invoke it as well as judicial review. At appeal record, 18, the same ground was relied upon without distinction in both, that is to say, an error in construction of the ‑ ‑ ‑
GUMMOW J: The only respondent was the Human Rights and Equal Opportunity Commission, was it not? That is a body corporate constituted under section 7 of the Human Rights Act. That is not an officer of the Commonwealth. Its members may be.
MR FRASER: Yes, I have to confess, in view of the way the case had been run, I had not given consideration to the proper applicability of section 39B. The case I am instructed was really run as though judicial review was sufficient and that was the only error identified.
Yesterday I referred, in answering some questions to various passages from Christie's Case, I did not give the Court at the time the relevant references. I do wish to take the Court briefly to that decision, which is Qantas Airways Limited v Christie 193 CLR 280. The legislative provisions there considered are set out in a number of judgments, in particular in the judgment of Justice Gaudron at page 287, and I mention as a slightly more complete extract in Justice McHugh’s judgment at page 297, but page 287 is sufficient and, in particular, in section 170DF is there set out, and we pointed out yesterday that it referred to:
a reason for terminating employment…..based on the inherent requirements of the particular position –
which is a slightly different context from the current Act, which has the notion of activity in section 15(4)(b) of disability causing inability to carry out the inherent requirements of a particular employment.
I should just bring to the Court’s attention some relevant passages too: firstly, in the judgment of the Chief Justice at page 284 paragraph 1. I just mention the last half of that paragraph, where the Chief Justice makes some relevant comments about the necessary building of a judicial experience about these provisions. Otherwise, the Chief Justice, apart from disagreeing with the critical conclusion of fact, agreed with the reasons of Justice Gaudron.
We refer to Justice Gaudron’s judgment at page 295 - this is in our written submissions - at paragraphs 35 to 36. Paragraph 35, dealing with a slightly different structure of the Industrial Relations Act, deals with the question of whether this is properly an exemption, but her Honour does not need to express a final view about proper approach there. We do rely upon the way the test was stated, albeit in a different statutory context, at paragraph 36.
We submit that the Commissioner’s different statement of the test is justified by the particular words of this provision and, in particular, we refer to the Commissioner’s description of it at appeal record, 14 line 20 to 25. I think the Court has probably looked at that, but that is where the Commissioner clearly sets out what the Commissioner finds as the proper construction of the section and we submit that that is an accurate statement of what the section requires and that the Full Court was in error in identifying any error of law in that statement.
I also referred yesterday to some passages from Justice McHugh’s judgment, and I should give the references. At page 303 his Honour commences to deal with the relevant section there at paragraph 70, referring to the relevant Convention and thereafter drawing distinctions between it and the particular words of the Industrial Relations Act. We refer, in particular, to paragraph 72 where his Honour is speaking of the Convention about halfway down he states that:
A person’s job is therefore primarily concerned with the tasks that he or she is required to perform.
And then goes on to deal with it more fully. We submit that that is particularly clear in the context of section 15(4) here, where the phrase ‑ ‑ ‑
KIRBY J: His Honour was there drawing a distinction between the particular job and the particular position, whereas this is an Act which talks of the inherent requirements of the employment, which seems to have cast a wider net.
MR FRASER: Well, we would submit that the phrase “requirements of a particular employment” is conveying, as the explanatory memorandum suggested, the same concept as “particular job”; that is the sense in which the explanatory memorandum described it and, we would submit, correctly, particularly in the context of the previous words in the section.
Over at paragraph 74 his Honour Justice McHugh then referred to the extrinsic evidence where he cited, in our submission, concerning an interpretation of the phrase “inherent requirements” and we rely upon that. I mention also at page 307, paragraph 79, his Honour mentioned that the Act there under consideration was “not a general anti-discrimination statute”, which is another point of distinction in the current case. We also bring to the Court’s attention that his Honour Justice McHugh referred to Justice Cooper’s decision in the current case at paragraphs 81 and 82, but found it unnecessary to determine the particular issue.
I also give the Court reference to Justice Gummow’s reference to “inherent requirements” and what it meant, in this slightly different context, which is at page 318, in paragraphs 114 to 115, and then it is applied thereafter. We also mention, in view of the fact that my learned friend relies upon some United States cases, that at paragraph 119 on page 320 his Honour Justice Gummow points out some significant distinguishing characteristics of the United States legislation and, we submit, it is at least equally distinguishable from the Disability Discrimination Act.
KIRBY J: Have you looked at the case of Bragdon v Abbott, which is a United States Supreme Court decision? It relates to the Americans with Disabilities Act 1990 and it seems, on very quick reading, to have gone off on the issue which we were discussing at one stage yesterday, and that is to say the province of the primary decision maker on the facts. Have you looked at that?
MR FRASER: I cannot say that I have looked at that, no, your Honour.
KIRBY J: That is the most important recent decision of the United States Supreme Court on HIV discrimination.
MR GRAHAM: Yes. The way in which the case was approached on our side was to submit, at all levels, that the United States cases were really of very limited assistance, but I do not say that of the case your Honour cites, I have not read it.
KIRBY J: Their Honours conclude their reasons of the court decision with the statement that information about HIV is evolving all the time and that care has to be applied by appellate courts in viewing the primary decisions on the facts on the basis that primary decision makers just have to decide the cases on the basis of the evidence as it stands at the time that they reach their decision.
MR FRASER: Yes.
KIRBY J: I do not know whether it is relevant, but I am going to look at it.
MR FRASER: Well, we have submitted, I think, that a good deal of the discussion in the Full Court does seem to involve questions of fact, although there does seem to be a proposition that there is an error in construction of the section that emerges occasionally.
I referred yesterday to his Honour Justice Kirby’s judgment in so far as it dealt with the approach to interpretation. I am not sure if I gave the reference. That aspect of the judgment is at page 332 in paragraph 152 and, in particular, we rely upon what is said there in items 1, 2, to some extent 3, but more particularly 4. We acknowledge that there are some differences between this legislation, of course, and the particular words used in the convention. I mention also that his Honour Justice Kirby deals with the concept of “inherent requirements” at page 339, in paragraph 163.
KIRBY J: I was in dissent.
MR FRASER: Yes. That is all I have, may it please the Court.
GLEESON CJ: Thank you, Mr Fraser. Just before you begin, Mr Tracey. There is a certificate from the Deputy Registrar of the Court saying that she has been informed by the Director of Legal Services of the Human Rights and Equal Opportunity Commission, that the second respondent submits to the jurisdiction of the Court and will not appear at the hearing of this appeal. Yes, Mr Tracey.
MR TRACEY: If the Court pleases. The Full Federal Court did not have the benefit of this Court’s decision in Christie, when it made the decision that is under appeal. However, we would submit that the decision is entirely consistent with this Court’s decision in Christie and, in particular, we would submit that, having regard to the majority judgments in Christie, section 15(4)(a) of this Act cannot be construed as the Commissioner did by limiting the inherent requirements of the particular employment to the physical capacity to perform the work.
The Commissioner did that, in our submission, in passages that appear between pages 12 and 14 of the appeal book. It is certainly the construction that has been placed at all levels in the Federal Court on what the Commissioner decided and we submit that it is the only reasonable reason of his reasons and, equally, the phrase cannot be limited, as the trial judge Justice Cooper did, to comprehend ability or capacity consistent with the discharge of the common law duty of care to avoid risk of loss or harm to others and his Honour so stated the test at a number of places in his judgment and we would refer the Court to pages 40, 43, 46 ‑ ‑ ‑
GUMMOW J: Page 43, line - - -? Because we were taken to 40 yesterday, that is line 10 or so, but page 43?
MR TRACEY: At page 42, your Honour, at the very top of the page.
GUMMOW J: Thank you.
MR FRASER: Page 46, again at the very top of the page; 47, I think the Court saw yesterday, that passage that is in the final paragraph, and at 48, starting at line 15. That position, in our submission, is made quite clear by the factual position in the outcome of Christie. The pilot concerned was physically quite capable of flying Qantas 747s anywhere in the world, he had excellent health; all that stood in his way was the rule of 60. Equally he was perfectly capable of discharging those duties without placing fellow crew members, passengers or anybody else at risk and, nonetheless, it was held that the fact that he could not comply with the rule of 60, as it was incorporated in his contract, meant that he was unable to comply with an inherent requirement of his position.
The result of that, in our submission, is that unless this Court agrees with the appellant’s contention that on no view can the ability to “bleed safely” constitute an inherent requirement of the employment of a soldier; the matter must be remitted to the Commission for further hearing, as the Full Federal Court ordered, because the Commissioner having, as we have submitted, misdirected himself on the construction of section 15(4), failed to determine whether the ability to “bleed safely” in the sense advanced by the respondent was an inherent requirement of the employment of X as a soldier and the Commission failed to make findings of fact and rule in the respondent’s case, as it now is, in so far as it was based on section 15(4)(b). So that the issue becomes, what is the proper construction ‑ ‑ ‑
GUMMOW J: Sorry, what were you saying about section 15(4)(b)?
MR TRACEY: Your Honour, because of the way the Commissioner approached the construction of section 15(4), he made no findings of fact in relation to the matters that were relied on by the Commonwealth under paragraph (b) and made no ruling on it. So that, for that reason, it would also have to go back.
GUMMOW J: And no one quarrels with the requirement to go back to a differently constituted commission?
MR TRACEY: No, we did not ask for that, your Honour, and ‑ ‑ ‑
GUMMOW J: Because that makes it clear the evidence has all got to be done again if it is agreed that it goes in.
MR TRACEY: Yes. We would not have opposed an order that it went back to Commissioner Carter.
CALLINAN J: That might have been because of the concern that I think the Court has seen in Hardiman’s Case or the application of Hardiman’s Case.
MR TRACEY: Yes, I think that may well have been why the court made the order that it did, because it apprehended that the intervention by the Commission before the Full Court may have, in some sense, been seen to compromise the decision, particularly when the intervention was specifically directed towards upholding Commissioner Carter’s construction.
At no stage in this process has it been sought by any of the ‑ ‑ ‑
KIRBY J: Can I just ask to clarify that? In your submission, if it went back, the appellant would still have two arrows to fire: one that “bleeding safely” was such a remote and rare aspect of the employment of a soldier that it really would not be looked at as part of the employment or as an essential requirement of it; and two, even if it were, that (b) came into play and that, because of the risk that undetected HIV would be a problem in employment, the defence forces would have to provide gloves and so on. It may have been laughable in the Second World War, but it may well just be part and parcel of the employment today. So that they are the two matters that we would remain to be determined by a new Commissioner under the order of the Full Court.
MR TRACEY: Yes, and there is also the prospect that now that the regulations have been made, that the respondent, the Commonwealth, would be able to rely on them to limit the range of remedies that were available only for particular reinstatement.
KIRBY J: And we were told something at the very close yesterday about those regulations. Do we have them? Have they been handed up?
MR TRACEY: Yes, there at page 30 of the appeal book, your Honour. They are set out in the judgment of Justice Cooper.
KIRBY J: Thank you. Are they confined to a theatre of war or to ‑ ‑ ‑
MR TRACEY: No, they include training as well, your Honour.
KIRBY J: So they are perfectly general.
MR TRACEY: Yes, they are extremely wide.
KIRBY J: Yes, thank you.
HAYNE J: Do you make any submission, Mr Tracey, about how “inherent requirements” of particular employment are to be identified?
MR TRACEY: Yes, your Honour. They are to be identified in a number of ways. The ways can be summarised, in our submission, in this way: firstly, the tasks and responsibilities, which make up the contractual duties of the employee, express or implied contractual terms that govern the employment and any relevant legislative provisions, and here there are the provisions of the Defence Act, which impose obligations of service at home and overseas, that are set out in the Full Court judgments. So that it is an amalgamation of all those things, your Honour.
GUMMOW J: And how does one then discern what is inherent?
MR TRACEY: One then applies to them a test of what is essential for the purposes of the employment in respect of those terms and conditions which are imposed by the employer and the test is the one, with respect, that your Honour advanced in Christie, namely one distinguishes between what is essential, on the one hand, or inessential or accidental, on the other.
GUMMOW J: Is there any majority view in Christie as to criterion for judging what is inherent?
MR TRACEY: No, other than that I think the majority can be discerned for the essential/inessential dichotomy, but, beyond that, no.
HAYNE J: Does the series of elements that you have just identified come down to all contractual stipulations between employer and employee, plus what you describe as, relevant legislative provisions? Now that may, in turn - relevant legislative provisions may in turn, obscure more than illuminate. But in determining particular employment, is one to confine attention to the functions and tasks to be performed? Is one to consider the location and circumstances of performance? So, is employment of a fitter and turner different from employment of a fitter and turner at Mawson Base in Antarctica?
MR TRACEY: Yes, your Honour. We would submit that regard must be had to the physical, mental and legal capacity of the person to perform the duties; the employees capacity to perform their tasks safely, both as to him or herself and those around, both fellow employees and, perhaps, members of the public who they might come in contact with. Regard would have to be had to the physical setting in which the work is performed; to the social setting in which the work is performed and to the regulatory setting. All of those matters are relevant and Christie is a good example of that, your Honour. It was the regulatory setting that was critical in the outcome in that case.
HAYNE J: But the contractual stipulation test would entitle an employer to say, “No person shall go to Antarctica unless they have had their appendix out”, or some such stipulation, even though the general body of medical opinion may be, there is more likely to be complication from adhesions than there is onset of appendicitis while you are down there. Now, is the Commission to stop its inquiry at the point of identifying contractual stipulation or is it to go on to consider whether that contractual stipulation is desirable/undesirable, reasonable/unreasonable, founded upon a rational view of safety to fellow workers? What is the inquiry?
MR TRACEY: Your Honour, we accept that, in so far as the employment can be defined by reference to the contractual arrangements, those contractual arrangements involve the imposition by the employer of requirements of the kind that your Honour has stipulated, then it is for the Commission to determine, having regard to the setting in which the work is to be performed, safety of fellow employees, all those sorts of things, whether the requirement is essential, and unless it is essential, reasonably necessary, then it is not an inherent requirement.
HAYNE J: The two are different, “essential” and “reasonably necessary”.
MR TRACEY: Yes, I accept that, your Honour, and I cannot go beyond essential for the purposes of argument based on authority, because that is as far as the Court went in Christie by a majority.
GUMMOW J: But in Christie, you see, the employer is in the different situation to the Commonwealth. In Christie the employer was subject to the international air navigation requirements of various countries. This is of an employer that can draw its own parameters, as it were, and not only at a contractual level, but at a regulatory level, because it is the Commonwealth.
MR TRACEY: The employer in Christie did have some room to move, your Honour.
GUMMOW J: Not much.
MR TRACEY: There was Fiji, Denpasar, New Zealand.
GUMMOW J: Exactly.
MR TRACEY: It could have been done, but the needs of the business were taken into account.
KIRBY J: You may find it amusing, Mr Tracey, but I did not.
MR TRACEY: Your Honour, it was not intended to be a reflection on the facts of that case.
KIRBY J: I mean, it seems a very odd interpretation of legislation having this purpose to say that every contractual stipulation of an employer can take that employer out of the protections that are given by the Act to employees.
MR TRACEY: Precisely, your Honour.
KIRBY J: And that cannot possibly be the intention of Parliament.
MR TRACEY: No, and it is not, for what we contend in this case, your Honour. There has to be established a basis that renders the particular requirement essential to that employment. Whether it is essential or not is to be determined by reference to a wider range of matters than purely physical capacity.
KIRBY J: What Justice Gummow said was right, in Christie there were factors outside the control of the employer or ,indeed, of Australia, but, in this case, there are no such factors; they are in the control of the Commonwealth or of its defence services.
MR TRACEY: Well, with respect, no, your Honour. There is a statutory obligation of service anywhere in the world: deployability, and ‑ ‑ ‑
HAYNE J: But if the service says, “Every soldier shall have 20/20 hindsight, we will not have soldiers who require corrective spectacles”.
MR TRACEY: Yes.
HAYNE J: If you look at the television, that is not a rule that is adhered to by all forces in this world, it seems. Now, what is the inquiry that the Commission embarks on if the contractual stipulation is “20/20 hindsight, no glasses for soldiers”?
MR TRACEY: Why is the obligation imposed? Is it imposed having regard to operational contingencies, for example? Does the soldier need that sort of sight to do the tasks of a soldier in an adequate fashion. They are factual matters. They are matters at which evidence can be called. The Commission will either ‑ ‑ ‑
HAYNE J: What is the criterion against which it is to be tested?
MR TRACEY: Is it an essential requirement in order to ensure that the duties are performed to the required standard?
GLEESON CJ: So the Commission’s judgment on that issue is substituted for that of the defence forces, on the issue of whether it is essential that people be able to see without corrective spectacles.
MR TRACEY: Yes, your Honour. That is the consequence of this legislation. If the Defence Force is not happy with that situation, then it has the capacity, by enacting regulations under section 53, to take itself outside that range of factual inquiry.
CALLINAN J: Mr Tracey, the point that Justice Hayne put to you really directly arises in this case, because the applicant signed a document acknowledging that he would submit to a test and that the consequence of a positive test would be he be discharged. So you do not rely upon that and you do not contend that you are entitled to rely upon that?
MR TRACEY: No.
CALLINAN J: Is that right? Can I ask you one more question: at page 5, the Commissioner quotes military policy, at line 20, which I presume was in evidence before him. Some policies have some sort of statutory effect or regulated effect. Is this such a policy, because I would like to know what its exact status is?
MR TRACEY: Your Honour, it does not have statutory force or effect of itself, but it does provide a regime that may lead to the invocation of certain statutory provisions. If someone tests positive, then there is a power to terminate service under section 44 of the Defence Act for prescribed reasons. One of the reasons prescribed under the Australian Military Regulations is physical unfitness to serve, so that you can have consequences under a statutory regime.
KIRBY J: There was no question of physical unfitness, was there? It is a question of whether the inherent requirements of all the aspects of employment rendered - - -
MR TRACEY: Yes. I was only citing one of many provisions, your Honour. There are others. It is a wider term, I think, in the regulations of “medical unfitness” and that has been construed in the wider sense to which I have just referred. My attention has just been drawn, in response to the question asked by your Honour Justice Callinan, that that policy actually appears in an instrument called “a defence instruction”, which does have some statutory force under section 9A of the Defence Act.
CALLINAN J: Well, we really need to see that.
GUMMOW J: We do.
CALLINAN J: It seems to me it could be very important.
GUMMOW J: I was trying to work out in exercise of what power Mr Fraser’s client was discharged.
MR TRACEY: Yes, well it was under the Australian Military Regulation 176, your Honour.
GUMMOW J: Have we got that?
MR TRACEY: No, but we can procure it, your Honour.
KIRBY J: Can I just ask you, you said earlier that in any rehearing that section 53 would apply because of the regulations having brought combat duties into effect, and we are not really called upon to answer this, but I just wonder if that was an accurate answer, given that the question that the section is designed to relieve from unlawfulness a discriminatory decision, presumably at the time it was made, and therefore it says that this part does not render it unlawful for a person to discriminate. So that if you have discriminated on an unlawful basis, the fact that subsequently something might relieve other discrimination might not apply to something that is already complete.
MR TRACEY: Your Honour, we would not need to rely on section 53, if we were able to persuade the Commission that section 15(4)(b) - - -
KIRBY J: I realise that, but I was merely responding to the fact that you said there were three questions to be determined or possibly…..that there are two, but that would be a matter for the future if you succeed in the appeal.
MR TRACEY: Yes, your Honour.
CALLINAN J: Mr Tracey, I am sorry, you did give me the reference to the provision under which the policy was made, did you not?
MR TRACEY: Yes, section 9A of the Defence Act, your Honour.
GUMMOW J: And Regulation 176 - - -?
MR TRACEY: - - - of the Australian Military Regulations? They are made under what section?
MR TRACEY: They are made under the Defence Act. I can find the section, or have it found, your Honour, but it is towards the end.
KIRBY J: Is that the one that talks of physical unfitness?
MR TRACEY: Yes, your Honour, that is the regulation. The precise terminology, I am instructed, under regulation 176(1)(h) “is medically unfit”, and that regulation is made under section 44 of the Defence Act which provides for “prescribed reasons” for termination but, of course, also under the general regulation-making power, and I will obtain the section number that ‑ ‑ ‑
CALLINAN J: No, I need a policy. Under what provision ‑ ‑ ‑
MR TRACEY: Policy is under 9A which is a power ‑ ‑ ‑
CALLINAN J: Which subsection?
MR TRACEY: Your Honour, we will find that out, but it is a policy that applies generally to the Defence Force so, presumably, it is the section that enables those defence instructions to be promulgated by the Secretary and the Chief of the Defence Force.
CALLINAN J: What is the effect of them, then? The policy, if it does have any statutory force, seems as if, arguably, it may have, then, perhaps, another exception and, perhaps, it is an exception to the Disability Discrimination Act.
KIRBY J: There would be a large question to be argued there. Why would he be medically unfit anyway? Why is he unfit?
CALLINAN J: …..makes a specific reference to HIV infection and that they are required to be discharged. That is the policy which is stated at page 5.
MR TRACEY: Your Honour, all I can say at this stage is that that is not a provision that was relied on by way of the Bench thus far before the ‑ ‑ ‑
KIRBY J: This might cut both ways, might it not? On the one hand, you might be able to argue that he was discharged pursuant to statutory authority which in some way combats the Act but the appellant might be able to say that he was discharged unlawfully because he was not medically unfit. He might have fallen into the excuses under the Act. When you look at all of the aspects of the job, the inherent requirements, and so on, but that he was not unfit. He was perfectly healthy, as I understand it, at the time he was discharged. So, these are matters that cut both ways but these are not issues in the appeal.
CALLINAN J: I do not know about that. I mean, if the provision is a mandatory provision, and it goes to defence forces, then it may have an effect. I am not prepared to conclude, at this stage, that it is a matter than we can ignore and I would really like to know precise status, and what you say about it, even if you do not rely on it?
MR TRACEY: Yes. Well, your Honour, my instructions are that the Defence instruction that incorporates that policy has been made under the Defence Act. It led to a decision made under other statutory provisions to discharge. So that, it did not operate at the time in force. The decision maker acted under the military regulations and section 44 of the Defence Act.
CALLINAN J: But the decision maker may not have had a choice. I do not know, I am not asserting that. The last part of the policy provides, “personnel with HIV infection are to be discharged” Now, I have no view about it, but I just want ‑ ‑ ‑
MR TRACEY: We accept that, and we accept that that may well have fettered the discretion if there was a discretion, as to whether or not the power of discharge would be ‑ ‑ ‑
KIRBY J: A questions could arise as to whether that is a valid regulation.
MR TRACEY: Yes, your Honour.
KIRBY J: Because it seems - well, at least it is arguably an extreme exercise of the power to discharge everybody with HIV who, for years and years, may well be able to fulfil the functions of the office.
MR TRACEY: That is why it is important that the answer be given to the question that is yet to be given, on the facts of this case, as to whether the requirement that a soldier bleed safely, or be able to bleed safely, is an inherent requirement of the employment, and that remains to be answered.
CALLINAN J: Mr Tracey, would you provide me with copies of the instrument and the policy, and probably the other members of the Court also, so that we may be fully apprised of what the total regulatory regime is.
MR TRACEY: We will arrange for that to be done as soon as possible after the hearing concludes, your Honour.
KIRBY J: Obviously, if you put in any written submissions in relation to that, it will be necessary for the appellant to answer them and may go off on to something that has not been explored anywhere else before.
MR TRACEY: As I understand the terms of his Honour’s request, it requires us to do no more than put in the statutory material ‑ ‑ ‑
KIRBY J: I thought his Honour did ask you to say ‑ ‑ ‑
CALLINAN J: Yes, I would like to know what you say about its effect given if you say that it is not applicable or not something you would want to rely upon here. Of course, Mr Fraser will have to have an opportunity to deal with any of that.
MR TRACEY: If your Honour pleases. We will do that and we will, of course, make sure that our friends have copies of whatever is submitted.
GUMMOW J: This is unusual because this is a case in which what was done and what is said to have offended the Discrimination Act is done pursuant to statutory authority, whether directly or indirectly, under a statute of the same legislature, and that really has to match the two pieces of legislation.
MR TRACEY: Yes, your Honour.
KIRBY J: And interpret the one so that it can live with the other, and remember that one is an Act of the Parliament of Australia and the other is an action of the Executive Government under regulatory power.
MR TRACEY: Yes, your Honour. We have conducted the case on the basis that the Commonwealth is bound by the Disability Discrimination Act and ‑ ‑ ‑
GUMMOW J: But bound in what respect? Bound in the exercise of discretionary powers reposed by or under other statute?
MR TRACEY: Bound to ensure that nothing that was done was done in disconformity with the Disability Discrimination Act.
GUMMOW J: There is no question here that the Defence authorities were acting under any prerogative power, is there?
MR TRACEY: No, your Honour. That may have been possible in years past ‑ ‑ ‑
GUMMOW J: That is right.
MR TRACEY: But the employment of soldiers is now very clearly regulated by statute.
GUMMOW J: Well, exhaustibly.
MR TRACEY: Yes, your Honour. Could I deal quickly with some of the arguments that were advanced by our friends in their written submissions? It is submitted that, in determining whether a particular requirement is an inherent requirement of the position, regard cannot be had to the possibility and consequences of an external mishap. Secondly, that employers are not able to demand an absence of disability, and, thirdly, that the requirement must have an element of permanence. Can I deal with those matters quickly?
As to the first, which deals with external factors, the question, in our submission, is whether the employee poses a risk to his or her own safety or that of fellow employees in the working environment, not how any risk might be induced. It may or may not be induced externally. Your Honour Justice McHugh in Christie referred to the need for workers in a chemical factory to be penicillin tolerant. That was a necessity because of an external effect on those persons of the chemicals with which they were working but one can take it further. An asthmatic fireman may be perfectly fit to do all the sorts of work that firemen do except when he finds himself in a smoke‑filled environment, at which point he is at risk as to himself and he may place his fellows at risk if he collapses and has to be taken out in emergency circumstances where his colleagues would otherwise be fighting a fire.
A psychologically disturbed shop assistant in a gun shop might be perfectly capable of doing his work but if there is some external trigger that sets about the effect that the person concerned goes berserk and becomes a risk to the customers and his fellow employees, then, we would submit, the mere fact that that was induced by some external factor can have no bearing on the question of whether or not it be an inherent requirement of that position that the person not be so disturbed.
McHUGH J: But it is put against you that those illustrations are distinguishable because in each of them the person is not capable of performing the physical tasks of the employment at all material times, while, in the present case, the appellant is.
MR TRACEY: Well, the answer to that is, your Honour, that the examples that I have given would be equally applicable to a person who, as a result of some external stimulus during the lunchbreak, went berserk and was a risk to his fellow employees, notwithstanding, the fact that he was perfectly capable of doing everything required of his employment. There is another good example that comes out of a factual situation that is presently operating in Victoria where some employees complained about a fellow employee. They are responsible for the setting up of chemical experiments for a school laboratory and one of the ladies concerned has a habit of singing loudly. Her colleagues are complaining that they cannot do their job safely because they are distracted by her singing. She is perfectly capable, she says, of doing everything that is required of her, safely, notwithstanding, that she sings while she does it.
GLEESON CJ: You mean, it is like a person in a submarine who has halitosis?
MR TRACEY: So, the submission could be met by examples of that kind, your Honour.
McHUGH J: Do you go so far as to say that inherent requirements take into account all those obligations which are imposed on the employee by law, for example, the duty of fidelity to the employer; duty not to expose the employer’s property or fellow employees to unnecessary risk of injury?
MR TRACEY: Yes, your Honour.
McHUGH J: You do, yes.
GLEESON CJ: From one point of view, the key word is “unable”, and the question is what “inability” comprehends?
MR TRACEY: We say it passes beyond the mere physical capacity to do the work. It is a lease to do the work safely without risk to others and to oneself and ‑ ‑ ‑
KIRBY J: There can be no risk to oneself in this case. You cannot reinfect yourself with HIV.
MR TRACEY: I accept that, your Honour, and, of course, one tests that in the setting in which the work is to be performed and we submit there is a world of difference between work being performed in the outback of Australia where there may not be medical assistance within hundreds of kilometres.
KIRBY J: But that would be true of defence services generally. It has nothing to do with HIV.
MR TRACEY: That is quite true, but what is important, your Honour, and there was evidence about this that, ultimately, findings were not made on, but soldiers are trained in the event that one of their colleagues suffers an injury of some kind, and that includes bleeding injuries, to react in particular ways to render first aid in endeavour to assist the person. If they do not have the necessary equipment to ensure there is a sterile environment ‑ ‑ ‑
KIRBY J: Do you think there is a sterile environment simply because, at one stage, maybe months or years before, HIV tests were taken? That is a fantasy. People can be infected the day after a test is performed. The Army must work its arrangements on that footing and assume that the handling of blood is unsafe, and has to act accordingly.
MR TRACEY: Your Honour, that is not always a feasible option.
KIRBY J: You say that this is a factual matter that has to be determined when the matter goes back to ‑ ‑ ‑
MR TRACEY: That is exactly what I am saying, your Honour, and that is why I prefaced my earlier response by saying there was evidence about this that, ultimately, findings were not made about, because of the view the Commissioner took of the construction of section 15(4).
GLEESON CJ: Is it your submission that a person may be relevantly unable to carry out the inherent requirements of a particular employment if the person, although capable of carrying out the inherent requirements of the particular employment, cannot do so without inappropriate risk to fellow employees?
MR TRACEY: We would answer that this way, your Honour, and say that the requirement to carry out the work safely is itself an inherent requirement.
GLEESON CJ: One other way of looking at it is to say it is an aspect of the ability to do it.
MR TRACEY: Yes, it could be approached that way, but either way, we submit that it is a relevant consideration in determining what the inherent requirements of the position are. I am reminded of the observation of your Honour Justice McHugh in Christie’s Case to the effect that, at minimum, the inherent requirements involve not just the physical and mental capacity, but the legal capacity to do the work. We would submit that that must embrace the concept of safety, given that there are legal obligations imposed on employers such as the Commonwealth to conduct their businesses in a safe manner.
McHUGH J: What do you say, in this case, that with suitable protection or assistance, the appellant is able to carry out the inherent requirements of the particular employment, so that, your case must stand or fall on section 15(4)(b)?
MR TRACEY: Well, your Honour, the case was argued in the alternative before the Commissioner under paragraph (b) and there was evidence going to the impact on the way the Army operates, of the need to provide the sort of protection to which your Honour has referred. In the end, the Commissioner did not rule on that because of the view he took of the construction of the section but it would be a live issue if the matter goes back.
CALLINAN J: Mr Tracey, you referred to legal obligations of the Commonwealth?
MR TRACEY: Yes, your Honour.
CALLINAN J: You might remember, I asked Mr Fraser yesterday whether the Act can provide a defence in a case in which the only negligence alleged was negligence by allowing the appellant to remain a member of the force.
MR TRACEY: We would submit it would not, your Honour, and we would submit it for this reason, that the Act does not provide an express protection for the Commonwealth as protection in a civil action for damages on the basis that all that it was doing was doing what was required of it by this Act and having regard to decisions of this Court, such as Coco, that require that any abrogation of common law protection and entitlement must be quite express and explicit in legislation. We can find nothing in this Act that would provide that sort of basis for a defence.
CALLINAN J: You say that it is not enough that section 15(2) makes it unlawful to discriminate, say, in this case, that there would be - - -
MR TRACEY: No, your Honour, we would submit that the argument that would not doubt be run against us in a common law case would be, “All right, you were required to employ this person, but you still have common law obligations to ensure that he did not cause infection to fellow soldiers or others, particularly when you knew about it”.
CALLINAN J: Well, look at (2)(b) though, 15(2)(b), might not the sorts of precautions that you would have to take involve a denial to the soldier of access to or opportunities for promotion, transfer or training, other advantages associated with his employment? It would be a possibility, would it not, that any precaution would inevitably involve such a denial?
MR TRACEY: Well, your Honour, we would not have a defence under subsection (4) in respect of discrimination covered by (2)(b).
CALLINAN J: I may be at cross-purposes. What I am suggesting is that, in pursuance of your common law duty, you might also defend section 15(2)(b).
MR TRACEY: I beg your Honour’s pardon, yes, that would certainly be a possibility.
CALLINAN J: Well, that is why the position might not be as clear as you say, that you remain under the common law duty to protect the others and that this Act…..I just do not know what the position is.
MR TRACEY: I understand what your Honour is putting and it may well be that in taking those additional steps, as your Honour says, some other provision of section 15 would be breached, yes. Denying training would be an obvious example if the risks of transmission of blood-borne disease would, or could occur, during training.
CALLINAN J: Which all goes to suggest that this Act, on that sort of interpretation, may provide a defence that the cases to which you refer may not be an answer to - - -
MR TRACEY: Well, your Honour, I cannot say it is unarguable, but we would submit that there would be a risk that a court would regard compliance with this Act per se, as not sufficient to provide a common law defence, but it is not an issue that has been tested.
KIRBY J: Perhaps those behind you have taken the view that the risk of transmission is so infinitesimal and remote that they do not really have to worry too much about it.
CALLINAN J: Then, the question is why formulate the policy in, apparently, mandatory terms?
KIRBY J: Quite.
MR TRACEY: Well, the evidence before the Commissioner, in that regard, was along the lines, as your Honour’s will have seen from the decision, that every Australian soldier is deployable and that, when deployed, is at risk of injury that might lead to a blood-borne injury or infection being transmitted to a fellow soldier or others in circumstances where it could not be controlled. That, in summary, was the case that was put.
GUMMOW J: What was the actual act of discrimination?
MR TRACEY: The act of discrimination that was alleged was his termination.
GUMMOW J: In terms of the section 15 matter?
MR TRACEY: Yes, it was (2)(c), your Honour, “dismissing the employee”.
GUMMOW J: It was not the policy itself?
MR TRACEY: No, your Honour. The policy informed the exercise of the dismissal power, but it is not the source of it.
GUMMOW J: But on one footing he was engaged on the terms of the policy.
MR TRACEY: Yes, and he acknowledged that.
KIRBY J: Yes, but I think you have conceded that the acknowledgment of the contracts, and so on, cannot override the Act.
MR TRACEY: No, we accept that, your Honour. The second argument advanced by our opponents to which we respond briefly is this, that employers are not able, as we understood the argument, to demand of an employee an absence of disability. Now, if that is put as an absolute proposition, it may be right. But, if it is put as a proposition that under no circumstances can an employer consistently with this Act, demand that an employee not have a disability of a particular character, then we submit the argument is in error, and there are obvious and many examples. An air traffic controller cannot be blind or deaf but it could not be said that somebody with club feet could not be employed as an air traffic controller. It depends upon the nature of the disability and its relationship to the work that is to be performed. Finally ‑ ‑ ‑
KIRBY J: So, an air traffic controller with a HIV is all right, but a soldier is not?
MR TRACEY: It will depend on the nature of the employment, your Honour, and what is required. Air traffic controllers are not required to do route marches.
KIRBY J: I suppose a plane could crash into the tower and there could be a lot of blood all over the place ‑ ‑ ‑
MR TRACEY: It depends on the facts of the case, your Honour. There is no absolute propositions in this area. The submission was also made, and this was the third one that we seek to respond to, that there has to be some element of permanence attached to the inherent requirement and that submission was based, as we understood it, upon the report of the ILO Committee on the construction of the convention. The response we make to it is, firstly, that that committee - and the Court has the full report - considered not just the permanence element of the dictionary definition but also the necessity or essentiality element of the definition, and that would hardly have been necessary if the committee had taken the view that permanence was an indispensable part of the concept of what was and was not inherent.
More importantly, it was an issue that was considered by some members of the Court in Christie and, in particular, your Honour Justice Gummow dealt with that issue and held that in this context permanence was not a requirement and, with respect, that has to be right having regard to the outcome in Christie because the rule of 60 was something that flowed from an international agreement, and international agreements are subject to change. There was no element of permanence about it.
KIRBY J: Originally, it had been a rule 50 and then 55, and then it became 60.
MR TRACEY: So that, we would submit that there is nothing in the arguments that have been advanced that would limit the construction of section 15(4) and that the construction for which we contend is the correct one. That being so, the Commissioner has erred, as a matter of law, in his construction of the legislation and the Full Court was right to send it back. Now, there was some concern expressed yesterday as to whether the court had been sufficiently – the Full Court of the Federal Court – explicit as to the test to be applied when it did go back, so as to provide adequate assistance to the Commission. It is our submission, it did, and one can, by examining the judgments of the members of the Full Court, discern the principles for which we have been arguing here today.
KIRBY J: You would have to exclude Justice Burchett, would you not, because he said there was no possible factual basis, so there is no point sending it back to the Commission.
MR TRACEY: But that was argued on the facts as he understood them, your Honour. The principles that he enunciated for the construction of 15(4) were not at odds with the other members of the court.
KIRBY J: I am just thinking that if you were sitting there as the Commissioner and you get this back, and you are told, “Well, it has come back to you to do something and one judge thought there was nothing for you to do”, how could you possibly use his reasoning?
MR TRACEY: Well, they certainly would not be…..by that aspect of Justice Burchett.
GUMMOW J: I can see half a day’s argument working out what they had to do, actually, given the resources of counsel.
MR TRACEY: The role of counsel will have to do to assist the Commission if it goes back but, certainly, one can discern - and leave aside Justice Burchett - from the majority judgments the propositions that we advance, namely, that an inherent requirement is not limited to physical capacity; it is not limited to conformity with occupational health and safety legislation. It is concerned with capacity to perform tasks safely; it is concerned with the physical setting in which the tasks should be performed; it is concerned with the social setting and it is concerned with the regulatory setting. Now, all those propositions emerge from the majority judgments.
GUMMOW J: What you are really inviting us to do is, as it were, distil that, restate it and dismiss the appeal?
MR TRACEY: That would be of enormous help to the Commission.
KIRBY J: Amongst the five, would you add a sixth, that it is not concerned with aspects which could not impinge upon the performance of the employment? I am thinking of the air traffic controller and HIV. How does one formulate a principle that says, “Well, if it is such a fantastic or remote possibility that you can put it out of your mind, so that you can distinguish the asthmatic fireman and the HIV-infected air traffic controller”, what is the criterion there?
MR TRACEY: Your Honour, we would invite the Court to restate the majority view in Christie which, used as the touchstone, essential or necessary, as distinct from inessential or peripheral. Now, the answer to
that will differ from case to case, depending on the sorts of matters we have been discussing. If the Court pleases.
GLEESON CJ: Thank you. Yes, Mr Fraser?
MR FRASER: Two points, may it please the Court? The first is the question of the relationship between a dismissal under military regulation 176, which has been mentioned, pursuant to section 44 of the Defence Act, and the Disability Discrimination Act. I mention that the Disability Discrimination Act contemplates the operation of other laws in section 47(2) which provides that:
This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.
GUMMOW J: Where do we get “prescribed law”?
MR FRASER: I am sorry, your Honours, but – in fact, I think, subsection (3) would have – a “law” is “a law of the Commonwealth”.
GUMMOW J: But where is the power of prescription?
MR FRASER: Yes, I will have that looked up. I should mention that at appeal record, 8, at about line 22, this question had been explored. The Commissioner’s reference there to section 47(2), I think should have been a reference to subsection 47(3). The Commonwealth had, initially, raised the prospect of relying upon that provision, we apprehend, because of matters such as dismissal under a regulation but then had abandoned it.
KIRBY J: You did not seek the judicial review to set aside the decision as unlawfully made as being made by reference to irrelevant or ineffective considerations?
MR FRASER: No.
KIRBY J: So, we are only concerned with the Discrimination Act and its application.
MR FRASER: Yes. I have to confess I have not looked at that regulation which was mentioned before, but we would apprehend there would be issues of fact which would arise given the terms in which it was described by my learned friend.
GUMMOW J: The idea of 47(3) was to give 3 years for other departments of State to get their acts in order, as it were.
MR FRASER: Yes, it was.
GUMMOW J: This ADF service policy, which is mentioned at page 5, what is the date of it? Does it postdate the Discrimination Act?
MR FRASER: I do not know the answer. My junior does not know and she presented the case before the Commission, your Honour.
GUMMOW J: How are we going to find out?
MR FRASER: I assume my learned friend acting for the Commonwealth has immediate access to it. We do not. The other matter I wish to mention in reply, was the reliance put upon Christie’s Case by my learned friend for the proposition that in some way it had the consequence that legal safety obligations were relevant. In my respectful submission, that is misconceived. Christie was concerned with an external legal order. We submit that the Commonwealth is merely obliged to adjust itself to section 15(4) rather than the other way around.
In relation to your Honour Justice Gummow’s question, section 132(1) authorises:
The Governor-General may make regulations prescribing matters:
(a) …..permitted by this Act to be prescribed.
GUMMOW J: Thank you.
MR FRASER: That is all I have in reply.
GLEESON CJ: Mr Tracey, you have three working days within which to provide that additional material which you may wish to provide and you have a further three working days after that to respond, Mr Fraser. The Court will reserve its decision in this matter.
AT 11.39 AM THE MATTER WAS ADJOURNED
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