X v Commonwealth

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.