X v Commonwealth of Australia

[1998] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 1998

B e t w e e n -

“X”

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 20 NOVEMBER 1998, AT 12.11 PM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MS D.J. RICHARDS, for the applicant. (instructed by Legal Aid Queensland)

MR T.M. HOWE:   May it please the Court, I appear for the first respondent. (instructed by the Australian Government Solicitor)

GUMMOW J:   Yes, thank you.  Now I should state that the Deputy Registrar has furnished a certificate stating that she has been informed by Macrossans Solicitors for the second respondent, that the second respondent does not intend to make any submissions to the Court on the special leave application and submits to any order of the Court save as to costs.  Yes, Mr Sofronoff.

MR SOFRONOFF:   Thank you, your Honour.  Your Honours, this case raises a question about the relationship between section 48 and section 15 of the Disability Discrimination Act 1992. Could I ask your Honours to look at section 48.

GUMMOW J:   Yes, we have it.

MR SOFRONOFF:   Your Honours will see that that section, which deals with infectious diseases and provides an excuse for discrimination has, as its touchstone, the reasonable requirements of public health.  Section 48 assumes that a worker who has an infectious disease, and who might infect others, is capable of carrying out the inherent requirements of the job.  Yet the decision of the Full Court, in our respectful submission, would mean that section 48 would have no work to do at all.

GUMMOW J:   What do you say is the immediate vice in the reasoning of the Full Court?

MR SOFRONOFF:   In adopting what we respectfully submit is a fictional construct, adding on to the requirement of a person’s work that that person, if injured, not constitute a risk of infecting others and thereby infecting a wider circle of people.  In our submission, the language of section 15, particularly the use of the words “carry out”-

GUMMOW J:   Section 15?

MR SOFRONOFF:   Section 15(4)(a).

GUMMOW J:   Yes.

MR SOFRONOFF:   Particularly the use of the words:

to carry out the inherent requirements –

of the job, contemplates the actual tasks, intellectual and physical, that a worker is employed to perform, and that given the presence of section 48, which assumes that an infected person can carry out the physical and intellectual tasks of the employment, the language of section 15(4)(a) should not be strained so as to incorporate within its scope a person who can carry out those tasks, but constitutes, in some circumstances, a risk of infection.  Your Honours, we would acknowledge ‑ ‑ ‑

KIRBY J:   I do not quite understand what you get out of the verb “carry” out, because the argument that found favour in the Full Court was, you look to the particular employment, which they said is wider than a particular job, so you are looking broadly at the employment, you then look at what are the inherent requirements of that particular employment, and they said, “bleeding safely” was one which was a requirement of Army service, and then you have to ask, would the person be unable to “carry out”.  Now what help do you get from that phrase “carry out”?

MR SOFRONOFF:   Your Honour, in my submission, when the words “carry out” are used, those words are apt to contemplate a person doing something, perhaps in a particular way, but doing something.  There is no suggestion that the soldier in question, in this case, could not perform all of the training regimes, that he could not go into combat, that he could not shoot, run and do all the other necessary things that a soldier could do.  His disability was a passive one in that, if he were injured, his blood might constitute a risk to those attending him and to his comrades.  Now that is not anything that he would have failed to carry out and the language is simply not apt to cover it, and when one has regard to section 48, which directly contemplates the consequences of infectious disease, and directly puts in issue, your Honours, not the employer’s perspective, not hardship to the employer, but the necessity of public safety, irrespective of hardship or lack of hardship to the employer, then, in our submission, it is clear that the Commissioner and Justice Cooper were correct and their Honours in the Full Court were incorrect.

KIRBY J:   Does the argument run so far as to say that where you have a case of infectious disease, then section 48 is the classification that you apply and you do not even come to section 15(4); is that how you put it?

MR SOFRONOFF:   No, your Honour, one might imagine a circumstance where it is an inherent requirement of the job not to be infected.  The only example that comes to mind is that of a surgeon, who is obliged as part of the inherent requirements of his or her job to avoid infecting the patient being operated upon.

KIRBY J:   But is that not just a question of fact, whether, in a particular case, a surgeon has a risk, probably quite small, of passing the blood to the patient; the soldier has a risk, which is much much smaller, of passing the blood to the patient, but whether it is an inherent requirement of the particular employment is somewhere along that spectrum.  It is not, one is in and one is out.

MR SOFRONOFF:   Your Honour, the difficulty with viewing it, as the Full Federal Court has done, is that it is easy to contemplate, as Justice Cooper pointed out, that in many trades and occupations – carpenter, fisherman, a factory process worker – there is a statistical certainty that people are going to get injured and there is therefore a probability that somebody who is carrying an infectious disease may get injured and thereby create a risk of injury to fellow workers and thereby, to members of the public.  Now, in our submission, what the Disability Discrimination Act enjoins is, in those circumstances, in the wide circumstances, to have regard to the issue of public safety, and not to the issue of ‑ ‑ ‑

KIRBY J:   Did I read somewhere that there are a number of cases that are dependent upon the decision of the Full Court?  Did I read that in the argument or not, or is this case a unique case?

MR SOFRONOFF:   Your Honour, I was not aware of that, could you excuse me.  That is correct, your Honour; I do not where your Honour might have read it, but that is, I am instructed, correct.

KIRBY J:   It is somewhere in the papers.

GUMMOW J:   Yes, I thought so too.  Perhaps we might call on Mr Howe, at this stage, Mr Sofronoff.  Yes, Mr Howe.  I am not sure you are electronically ‑ ‑ ‑

MR SOFRONOFF:   Your Honours, we are not hearing ‑ ‑ ‑

GUMMOW J:   No.

KIRBY J:   Could you just tap the microphone and see if it is on.

GUMMOW J:   No, it is not.

MR SOFRONOFF:   We are not getting it here, your Honour.

GUMMOW J:   Yes, thank you, Mr Sofronoff.  We will take a short adjournment until that is fixed up.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.22 PM:

GUMMOW J:   Yes, Mr Howe.

MR HOWE:   Your Honour ‑ ‑ ‑

GUMMOW J:   Can you hear that, Mr Sofronoff?

MR SOFRONOFF:   I can, thank you, your Honours.

MR HOWE:   Your Honour, it is submitted that special leave in this case would not be granted primarily because there is no real doubt, let alone sufficient doubt, which attends the approach of the Full Court of the Federal Court.  In particular that applies to ground 1, upon which special leave is sought; in relation to ground 2, which appears at page 112 of the application book, there is an additional submission we would make and that is that that ground really is premised upon a factual proposition or conclusion, namely that neither injury nor bleeding form part of soldiering and that remains a matter which will be the subject of evidentiary adjudication by the Commission and allowing this appeal would be an inadequate vehicle for the agitation of that particular ground.

KIRBY J:   Yes.  We have a case here where the Commissioner and the primary judge found in favour of the applicant, in relation to a medical condition which is going to be with our society for some time, and in relation to an occupation where, though we hope in very remote circumstances, there may be a risk from the need to “bleed safely”, as it is graphically put, and the case therefore presents an issue which looks likely to be one that is going to present many times in the future and in its way will stand the Full Court decision resolving the issue, whereas the Commissioner and the primary judge found on the other side.  So that it does seem to present a good test case for the issue to be determined in this Court.

MR HOWE:   With respect to your Honour, the judgments below do not resolve the question of what are the inherent requirements of soldiering.  The judgments below only resolve an issue of statutory construction, namely, whether the inherent requirements of employment extend to matters going beyond the physical or intellectual performance of the tasks at hand and, in particular, the majority judges in the court below specifically refrained from expressing findings about the question of deployability and bleeding safely, being inherent requirements ‑ ‑ ‑

GUMMOW J:   Just a minute.  How did the matter get before Justice Cooper, under the AD(JR) Act, is that right?

MR HOWE:   Yes, that is right.

GUMMOW J:   Well, it was an administrative review case.

MR HOWE:   Yes, your Honour, but the ‑ ‑ ‑

GUMMOW J:   One expects it to be dealing with questions of law.

MR HOWE:   Yes, it was a question of law as to the meaning of the phrase, “inherent requirements” in paragraph 15(4)(a).  The basis of the ‑ ‑ ‑

GUMMOW J:   It would have been for the Commission to work out facts.

MR HOWE:   Yes.  The Commission however declined to make factual findings as to the inherent requirements of soldiering and, in particular, declined to find that deployability and bleeding safely did constitute inherent requirements, because the Commission favoured an approach to the construction of a statute which, according to the Commission, rendered unnecessary consideration of the evidence, and so no factual findings were made by the Commission and the matter went to Justice Cooper by way of judicial review on the pure question of construction and, we submit that the effect of the judgment below is that the matter will now need to go back to the Commission for each of two things to be decided:  the first is, what are the inherent requirements of soldiering, given the construction which the judgment below put to that phrase?

GUMMOW J:   The upshot of the Full Court order is that it goes back to the Commission.

MR HOWE:   Yes, that is right.

GUMMOW J:   That is right.

MR HOWE:   And the Commission will need to make factual findings ‑ ‑ ‑

GUMMOW J:   Yes I know, but what is said against you is that, unless something is done, the Commission will be considering the factual matters on a wrong legal basis.

MR HOWE:   Yes.

GUMMOW J:   That is what Mr Sofronoff said, “it would be a wrong legal  basis”.

MR HOWE:   Yes.

GUMMOW J:   Am I right in thinking that this Court’s decision in Qantas v Christie is later than the Full Court judgment?

MR HOWE:   Yes, your Honour, that is correct.

KIRBY J:   And would not what would happen, if the case goes back to the Commissioner, on the facts that the present applicant would have a right, later on, after the determination, to come up here to have the issue re-litigated, because at that stage, what he would be contending was the wrong legal test would be applied in the ultimate wash-up of the case.

MR HOWE:   Yes, your Honour.

KIRBY J:   So is it not better if the matter does have to go back to the Commissioner, that it go back on the correct legal premises?

MR HOWE:   Well, with respect, the approach which the Full Court took to the issue was one of pure statutory construction.  The Full Court did not descend to rule upon or adjudicate matters of evidence, as to whether ‑ ‑ ‑

GUMMOW J:   They reached a different view on statutory construction to the primary judge?

MR HOWE:   They did.

GUMMOW J:   Well, it seems as if there is more than one possible view of the correct statutory construction.

MR HOWE:   Yes, although the approach taken by the Full Court below accords entirely with the approach of the majority of this Court in Christie’s Case.  The applicant is really contending for a dichotomy in discerning the inherent requirements of employment between matters internal or externally imposed and that was an approach which was robustly and emphatically rejected by the High Court in Christie’s Case, and, indeed ‑ ‑ ‑

GUMMOW J:   Yes, but it may be that people tend rather to take a phrase in one statute, and plonk it down in another statute; that was the Workplace Relations Act, was it not?

MR HOWE:   Yes.

KIRBY J:   This is what has been described as human rights legislation here; it would receive a somewhat different, or arguably, it may receive a different construction than workplace regulation legislation.

MR HOWE:   Although the High Court dealt with the Workplace Relations Act provision in Christie’s Case on the basis that it was anti-discrimination legislation based upon the 1958 Convention, and so the High Court applied the conventional rules of a purposive approach to the construction of remedial legislation and that reasoning would not apply differently, or with more or less vigour, to the construction of the provision that is at issue in the Disability Discrimination Act, it being similarly based on the 1958 Convention.

KIRBY J:   How would you describe the difference between the primary judge aand the Full Court’s - how would you define the difference between their Honours’ approach?

MR HOWE:   Yes.  At first instance, Justice Cooper accepted that the Commission had erred in confining inherent requirements to performance of mere physical tasks and Justice Cooper accepted that the inherent requirements can extend to matters of health and safety owed to co‑workers where the employer can identify a common law duty of care.  The Full Court agreed with so much of the reasoning of Justice Cooper, but said that he too had confined the inherent requirements too narrowly and that the circumstances in which employment may embrace inherent requirements pertaining to safety do go beyond circumstances in which a common law duty of care is owed and that it is a question of fact and degree in each case, rather than a question of deciding the matter by application of rigid formula, according to whether something has the status of internal or externally imposed status, and, in particular, what the Full Court said was that the inherent requirements of employment really begins and ends with discernment of the nature of the employment and that is essentially a characterisation exercise and ‑ ‑ ‑

KIRBY J:   And with the Army, do you do that, given that we are in what, for constitutional reasons, might be called a period of profound peace or of peace; do you apply the same test as you would in time of war?  I mean, because the reality is that a person with HIV could be a soldier without causing the slightest risk, at the moment, to another soldier, except in the very remote possibility that combat breaks out and that there is a risk, and even then the risk would, as I understand the evidence in the case, be very small.

MR HOWE:   Yes.  Your Honour’s question really would require descent into matters of evidence to answer comprehensively, but there was comprehensive evidence before the Commission, which it did not consider necessary to address, because of its, we say, incorrect approach to the statutory construction issue, but there was evidence which was directed to demonstrating that even in peace time, soldiers are required to train under conditions of graphic reality, approximating what might be experienced in wartime, in order to subject them to the sorts of conditions that they may have to confront so that they are better prepared to do so.  There was also comprehensive evidence as to the risk of bleeding, injury sustained in that sort of reality training and at the risk of open wounds and of the need for treatment to be rendered, even in training exercise out in the field in non‑sterile conditions, and so on ‑ ‑ ‑

KIRBY J:   And is it beyond the capacity of the Australian Army, with a large force and various duties, to make arrangements for the inherent requirements of the employment, that would respect the different capacities of soldiers, with or without infection of this kind, or other infections?

MR HOWE:   Yes, well, your Honour, again, to answer that would require traversing of the evidence, but there was substantial evidence before the Commission as to the dire need in the Army for all soldiers to be deployable, and there was evidence about the rotational system ‑ ‑ ‑

KIRBY J:   What, Field Marshals and the top echelon?

MR HOWE:   Exactly so, your Honour.  There was comprehensive evidence in the form of a very detailed statement from Colonel Webster, as to which largely he was not cross-examined upon, and that evidence included detail about the rotational system that the Army employs in order to relieve people from field operation activities back into more static clerical or non-operational tasks and as to the numbers who are waiting out in the field to be rotated for respite back into those static positions and of the fact that the Army simply cannot afford to train and to have, sitting in those static positions in a full time permanent way, people who are not deployable to do the very undertaking that it is the oath of a soldier to do, namely to stand ready to engage in hostile combat with the enemies of the Commonwealth.

Your Honour’s question though perhaps touches upon another aspect, and that is whether or not the Army could make reasonable accommodation by the provision of services or facilities to enable soldiers to carry out the inherent requirements of employment, such as provision of rubber gloves and that sort of thing, but, can I say that again, the Commission at first instance never addressed the evidence that was presented to it on that point, never made any factual findings, never even adverted to paragraph 15(4)(b) of the Act.

KIRBY J:   That was because of their view of the meaning of the Act, that is, from their view, they did not come to that, and the matter has to go back to the Commission at first instance, and the only issue really which is presented by the application is, should it go back now, with the decision of the Full Court or, given that there is a diversity of opinion below on a matter which arguably is of some social, as well as legal, significance, this Court ought not to provide special leave, in order that when it goes back, it goes back on the absolutely final and correct legal footing.

MR HOWE:   Yes, I think your Honour is right; the real and only issue is the correct construction of “inherent requirements”, but can I put this:  the very construction for which the applicant contends, which does draw a dichotomy between internal requirements and externally imposed requirements, and which seeks to exclude from the ambit of inherent requirements operational requirements that the business of the employer might depend upon, that very approach to the construction of section 15(4)(a) of the Act was the very approach which found disfavour recently by this Court in Christie’s Case and we would say that the only opinion against the proper approach was that taken by the Commission at first instance and Justice Cooper and the Full Court, in the judgments below, unanimously agreed with and, indeed, anticipated the very approach taken by the majority in Christie’s Case.

I will just take the Court very briefly to the relevant passages, but just on that point, his Honour Justice Gummow observed that perhaps inherent requirements in the Workplace Relations Act might be given a different meaning to the identical phrase appearing in the Disability Discrimination Act.  As to that, your Honour Justice Kirby, in Christie’s Case, was in the minority, but expressly on the basis that the legislation under consideration in the Workplace Relations Act did not have the equivalent of paragraph 15(4)(b), which appears in the Disability Discrimination Act.  And your Honour took the approach that inherent requirements under the Workplace Relations Act only referred to matters which were absolutely permanent and absolutely innate and which had nothing to do with the employer activities ‑ ‑ ‑

KIRBY J:   “Inherent” does give that signal, and that is common to both statutes.

MR HOWE:   Although the dictionary definition does merely refer as well to the question of essentiality or the essence of something which raises ‑ ‑ ‑

KIRBY J:   Given that there are pilots all around the world, over 60, I could not accept that that was inherent, but I was in the minority and therefore presumably must have been wrong.

MR HOWE:   Yes, but your Honour did attach significance, in the approach that you preferred, to the absence of the very provision which exists in the Disability Discrimination Act and your Honour indicated expressly, that had the equivalent of section 15(4)(b) appeared in the Workplace Relations Act, your Honour may well have taken a broader approach to the construction of the inherent requirements and so, we say, that your Honour’s broad approach, although in the minority in Christie’s Case, favours the construction for which we contend.

Could I then just very briefly take the Court to some relevant passages in Christie’s Case 152 ALR 365, just to indicate the unanimity or consensus of approach. It is in the bundle of additional materials that we filed yesterday.

GUMMOW J:   Yes, we have it.

MR HOWE:    Firstly, in relation to the judgment of Chief Justice Brennan, as he then was, could I just take the Court to two passages only:  the first appears at page 366 commencing at line 41:

The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking ‑ ‑ ‑

KIRBY J:   I do not think we are going to have time to read all of these, but just tell us what you say is the essence of what is held by each of the Justices.

MR HOWE:   Yes.  The essence of what was held by each of them was that in discerning the inherent requirements of employment, one is essentially undertaking a simple characterisation exercise, it is a question of fact and

degree, it is to be answered by application of commonsense to the nature of employment, rather than inflexible rules of inclusion and exclusion and, in particular, the inherent requirements of the employment does not exclude externally imposed requirements by an employer, which are genuinely referrable to the endeavour or undertaking of the employer and which are not merely expedient or convenient or imposed tendentiously with a view to defeating the anti-discrimination legislation and, in particular, the whole of the majority in Christie’s Case held that the inherent requirements of employment can extend to operational matters, and that is a construction for which we contend, and then it is up to the Commission as to whether or not the evidence of operational factors that was adduced to the Commission warrants the findings for which the respondent contends on the evidence, namely, that deployability is, in truth, an inherent requirement and that bleeding safely is, in truth, an inherent requirement.

Really, the position for which the applicant contends is that neither deployability nor bleeding safely can, as a matter of law, be inherent requirements, because they are externally imposed, and we say that simply cannot be right and the judgments below are replete with examples, which give stark illustration to the absurdity of that approach.  It is really now a question for the Commission to make the necessary factual findings in the light of the evidence and in the light of the approach favoured by the Full Court, which was endorsed resoundingly by this Court in Christie’s Case.

GUMMOW J:   Yes, thank you, Mr Howe.

MR HOWE:   Thank you, your Honour.

GUMMOW J:   Mr Sofronoff, what do you say upon the point that is made that the matter is premature in the sense that there should first be findings of fact by the Commission and then the correct interpretation can be decided at an ultimate appellate level?

MR SOFRONOFF:   If it goes back now, your Honour, then the Commissioner hearing the matter will be, in our submission, on our construction, addressing himself or herself to entirely the wrong issues of fact, if it is later found that the wrong construction is being employed.  What we wish is that the correct construction be settled by the High Court and that when the matter goes back the fact-finding be directed to the correctly relevant issues of fact, not, as we would contend, irrelevant issues of fact.

GUMMOW J:   Yes, thank you.

KIRBY J:   You heard the submission that, in effect, the decision in Christie confirmed the approach of the Full Court.  Is that a submission that you accept?

MR SOFRONOFF:   No, your Honour, because we do not embrace any submission that suggests that one can ignore what our learned friend referred to as, external requirements of the job.  We do not contend for any such position, so Christie is beside the point.

GUMMOW J:   Yes, thank you.  Now if leave were granted, the argument would take no more than one day, I would assume; is that correct, Mr Sofronoff, as you see it?

MR SOFRONOFF:   Correct, that is as I see it, your Honour.

GUMMOW J:   Yes, thank you, Mr Sofronoff.  Yes, there will be a grant of special leave in this matter.

AT 12.43 THE MATTER WAS CONCLUDED