X v The Cth of Aust

[1999] HCATrans 183

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 MONDAY, 21 JUNE 1999, AT 2.16 PM

Copyright in the High Court of Australia

MR H.B. FRASER, QC:   If it please the Court, I appear with MS C.E. HOLMES, for the appellant. (instructed by Legal Aid Queensland)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR T.M. HOWE, for the first respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Fraser.

MR FRASER:   Your Honours, I should mention one preliminary matter and the use of the pseudonym “X”.  Because this matter was covered by the previous practice direction, there ought to have been an application to continue its use.  My understanding is that there was no such application at the application for special leave, so, I would make that application now.

GLEESON CJ:   Is that opposed, Mr Tracey?

MR TRACEY:   It is not, your Honour.

GLEESON CJ:   Very well, yes, we will continue the use of the pseudonym.

MR FRASER:   Yes, thank you.  Before going directly to the particular issue of the appeal, I should just mention a number of matters which are really not in issue.  They concern, effectively, the factual background and they are that it has been common ground, and still is, that when the appellant was discharged on 24 December 1993 he suffered from a human immunodeficiency virus, HIV.

KIRBY J:   Your voice is dropping, that is why I am not hearing you.

MR FRASER: I am sorry, HIV. That is infectious and transmissible by the exchange of bodily fluids, including blood, that usually leads to the onset of acquired immune deficiency syndrome, AIDS, which is a fatal illness, and particularly that the HIV infection suffered by the appellant is a disability within the meaning of section 4 of the Disability Discrimination Act 1992. In connection with that, I should mention that the explanatory memorandum for the Act at page 5 specifically refers to HIV as a matter covered by disability. I should also mention that the Commissioner found expressly at page 9 of the record that:

HIV infection is an “infectious disease” for the purposes of s.48 of the DDA.

Finally, I should mention that as the Commissioner pointed at page 9 of the record, the Commonwealth did not claim exemption from unlawfulness by reference to section 48 and nor did the Commonwealth rely upon section 47(2) which creates an exemption in the case of acting under a law.

GUMMOW J:   It may not have relied upon them but those provisions may throw some light on construction, generally, may they not?

MR FRASER:   Yes, that is my submission, your Honour.  Nor, did the Commonwealth rely upon section 53 which is specifically concerned with the Defence Force.

KIRBY J:   That is because the regulations had not brought the provision into effect or for some other reason?

MR FRASER: We would infer that was the reason, your Honour, yes. And, nor was there any application on behalf of the Commonwealth for an exemption under section 55 which is the provision which more generally authorises exemptions for periods up to five years at a time from the general operation of the Act.

CALLINAN J:   Mr Fraser, did that remain the position before the Federal Court and the Full Federal Court?

MR FRASER:   Yes.

CALLINAN J:   There was no change in relation to any of those matters?

MR FRASER:   No, we understand that is still the position.

GUMMOW J:   There were findings of fact.  This is an AD(JR) case.

MR FRASER:   Yes.

GUMMOW J:   So, the findings of fact are there or they are not there.  They have got to be found in what the Commissioner did.

MR FRASER:   Yes.

KIRBY J:   Is it an AD(JR) Act?  I saw the reference to the Judiciary Act and to the constitutional writs.

MR FRASER:   There was also an application under the Judiciary Act, yes.

KIRBY J:   Which one proceeded, or did they both proceed together, or?

MR FRASER:   I cannot answer that, your Honour.  I am told by my junior that it proceeded as Judicial Review, but ‑ ‑ ‑

KIRBY J:   We had better get that clear because a not insignificant question in this case is what the Commissioner who had the sole province to find facts actually found and whether on the basis of those findings it was any business of the Federal Court to be disturbing those findings, if they did.

MR FRASER:   Yes.  We apprehended that the only challenge that was really mounted was to the effect that the Commissioner had made an error in the construction of, in particular, section 15 of the Act which, in effect, falsified the Commissioner’s findings of fact, but I will have my junior be more precise about that if I can ‑ ‑ ‑

GLEESON CJ:   Am I not right in thinking that two of the three members of the Full Court of the Federal Court thought that the matter should go back for further factual investigation or findings?

MR FRASER:   Yes.  Yes, that his Honour, Justice Burchett, on the other hand thought that his Honour could conclude the case against my client at the appeal stage.

GLEESON CJ:   Now, presumably, your argument to us is that there is no occasion for any further or additional factual investigation or factual findings?

MR FRASER:   Yes.

GLEESON CJ:   That the findings of fact made in the first instance by the Commissioner were both sufficient and necessarily conclusive in your favour?

MR FRASER:   Yes.

GUMMOW J:   And that Justice Cooper was correct, at first instance, at to the construction of the section?

MR FRASER:   Yes, your Honour.

GUMMOW J:   And, that was it?

MR FRASER:   Yes.  There is a passage in his Honour, Justice Cooper’s reasons which we may wish to disagree with in a very slight fashion but not in a way which is really relevant to the outcome of the appeal, but with that qualification, yes.  Can I just mention, then, what is the case which the Commonwealth is really seeking to make and was seeking to make before the Commissioner, and we respectfully submit that it is adequately explained in the Commissioner’s ‑ ‑ ‑

GUMMOW J:   I am sorry to keep interrupting, but if you are going to construe this Act you have to work out what is its constitutional operation, I am afraid.  Therefore, you have to go, in the first instance, to section 12, do you not?

MR FRASER:   Yes, your Honour.  What we really submit has happened is that there has been, in effect, a skewed characterisation in terms of the Act of the case that the Commonwealth was really seeking to make below, so that there is no occasion to go back to the Commission.  We would seek the opportunity of explaining briefly why we say that.  We do submit that the factual case the Commonwealth has sought to make is adequately explained in the Commissioner’s reasons at page 7 of the record, really starting at about line 12 where, in effect, the Commonwealth referred to the risks which might arise in the course of service and sought to characterise them as “inherent” requirements of the service which had to be carried out by the appellant, and that runs through from about line 12 to the bottom of the page.

KIRBY J:   Is what the Commissioner said, and correct me if I am wrong, that if you look at “combat duties” there may well be extra risks in the nature of the soldier’s duty but if you look at the non-combat duties and the training and other things that were actually within the work duties of the appellant, then the risks were no greater than in many other jobs and that therefore those which were inherent in his duties, in that respect, were no greater than those of other jobs in respect of which it could not be thought that the Act would not apply in the case of HIV.

MR FRASER:   His Honour did convey that concept, your Honour, save, perhaps, for the word at the beginning “extra risks”.  What his Honour, we understood to convey was that of course there are risks of transmission of infection, no doubt be it in employment or otherwise in the community, in certain circumstances, but as your Honour said, that that was not in itself a reason for saying that this was an inherent requirement of employment, in other words, that there be no risk.  Can I, having interrupted your Honour, Justice Gummow, return to your Honour’s question?  We accept, of course, that ‑ ‑ ‑

GUMMOW J:   It is section 12(5), is it not?

MR FRASER:   Yes, your Honour.

GUMMOW J:   Rather than, and without the need to rely on subsection (8) which, on one way of thinking, subsection (8) may be rather narrower than the ordinary meaning to be given to section 15, if it has to be pinned back to the external affairs power.

MR FRASER:   We accept that as a general proposition but, we would respectfully submit, in the context of this case any difference does not appear to be relevant to the outcome of this case.  Your Honours, the Commonwealth asserted that the“inherent requirements” of employment”
were really twofold.  The first was that the appellant be deployable for combat and combat related duties and training to that end and the second was that the appellant be able to perform his military duties, in effect, without undue risk of transmission of HIV to other soldiers.  That is how the appellant put the second requirement in their written submission to this Court as well.

KIRBY J:   Now, that means, does it, “combat military duties” or “non‑combat” or “all duties”?

MR FRASER:   Because training was included in the question of deployability it really means everything, but there were really two separate inherent requirements contended for in the Full Court.  The first was deployability as to which we would submit it is just an unnecessary construct added into the case and is in fact subsumed in the finding of the Commissioner upon which we rely at page14 of the record at about line 16:

In my view the “inherent requirements” of employment as a solider for the purposes of s.15(4) is that the soldier be able to execute the tasks or skills for which he/she is specifically prepared as a soldier irrespective of where the soldier is located or deployed.

So, it is accepted by the Commissioner that that must be the case, so, deployability becomes, we submit, quite irrelevant.  The real question arises on the Commonwealth’s second contention, namely, that it is the ability to perform military duties without undue risk of transmission of HIV.  That constitutes the supposed inherent requirement applicable under section 15(4)(a) or (b).  Firstly, can I just mention what the inherent requirements are, and I will not take the Court to this, they are really not contentious.  They are summarised in the judgment of Justice Cooper at page 43, line 15 to page 45, about line 23 of the record at the end of which is set out the Commissioner’s finding ,really, to the same effect.

GUMMOW J:   Are you saying that these are all findings of fact?

MR FRASER:   No, your Honour, this is his Honour Justice Cooper’s description of the inherent requirements of a soldier.  The finding of the Commissioner is set out, as I said, at the end of that description which refers to evidentiary matters.

GUMMOW J:   I see.

KIRBY J:   Could you help me, because it is some years since I looked at this?  First of all, we have got to clarify what is the nature of the process that brings it from the Commissioner, who has fact-finding responsibilities, to the Federal Court, and assuming that to be the Judicial Review Act, what precisely, then, is the power of the Federal Court in respect of fact findings made by a person in the position of Commissioner?

MR FRASER:   Well, your Honours, the Full Court found that it was not the role of the court to find any facts and the issue which was presented to the court at each level was whether there was ‑ ‑ ‑

KIRBY J:   I am not really so concerned at what the court found, I am concerned at what was their legal warrant. I must admit, I had thought this had gone under the Constitution, pursuant to the Judiciary Act.

MR FRASER:   Your Honour is correct in this sense that the application by the Commonwealth was for an order for review under the Administrative Decisions (Judicial Review) Act as well as for writs of mandamus and certiorari pursuant to section 39B of the Judiciary Act.

KIRBY J:   Do they involve exactly the same thing in respect of the review of factual determinations at first instance?

MR FRASER:   As we apprehend it, it was precisely the same, your Honour.  We apprehend the way the case was run was that ‑ ‑ ‑

GUMMOW J:   We can find out how it was run by looking at the order made by the Full Court at 111.  That is not a 75(v) order, I do not think.  That looks like the AD(JR) Act.

MR FRASER:   Yes.

GUMMOW J:   The only ground in support of the AD(JR) Act that I can find is at page 18, line 17, which was error of law.

MR FRASER:   Yes.

CALLINAN J:   Which, Mr Fraser, brings me to my question, do you say that the passage from the Commissioner quoted at page 45, line 18, is a pure finding of fact?

MR FRASER:   Yes, your Honour, although, of course ‑ ‑ ‑

CALLINAN J:   No legal component in it at all?

MR FRASER:   It is informed by a construction of the Act in the sense that the Commissioner did reject the proposition that the existence of risks of transmission of HIV could be regarded as constituting inherent requirements of the employment, in that sense.

CALLINAN J:   So, that the only factual issue, as it were, that the Commissioner thought it appropriate to decide was whether the soldier was mentally and physically capable of carrying out a task or tasks and not any consequences that might flow so fact as infection is concerned, or treatment from any miscarriage in the performance of those tasks?

MR FRASER:   Not quite, your Honour, because the Commissioner was asked to find that there was an “inherent requirement” arising out of the existence of those risks of infection and declined to do so but, as I said, we would have to accept that that was partly informed at least by the Commissioner’s view of how the section operated.

HAYNE J:   What is said to be the error of law?

MR FRASER:   As we apprehend it, what is said against the Commissioner was that in some way the Commissioner too narrowly construed section 15(4) as excluding as an inherent requirement of employment the existence of risks of transmissibility of an infectious disease.

GLEESON CJ:   What did Justice Cooper say about that question?

MR FRASER:   Firstly, his Honour said that the Commonwealth had not asked for a finding but then his Honour said that they could not sensibly have asked for a finding of that kind.

GLEESON CJ:   I wondered what Justice Cooper said about whether the Commissioner had made an error or law in his construction of the section.

MR FRASER:   His Honour did say the Commissioner had construed it too narrowly.

GLEESON CJ:   So, all the four members of the Full Court who dealt with this said the Commissioner had made an error of law?

MR FRASER:   Yes.  But, the difference was that his Honour, Justice Cooper, at first instance, found that it was an irrelevant error.  Can I move on with the argument, if I may, and say that we wish to point out that there is a fundamental difference between an asymptomatic infectious disease like ‑ ‑ ‑

GUMMOW J:   I am still confused.  This was taken as a relationship of employer and employee within the meaning of the section 15?

MR FRASER:   Yes, it actually falls within specific definitions in the provision, your Honour, because employment ‑ ‑ ‑

GUMMOW J:   It is not normally what servicemen are.

MR FRASER: No, but “employment” is defined in section 4(1) to include in (c) “work as a Commonwealth employee” and “Commonwealth employee” is defined, also to mean a person who, amongst other things, in (f), “is a member of the Defence Force”.

GUMMOW J:   Where do we find the definition of “Defence Force”?

MR FRASER:   I am not sure that we do find that.

GUMMOW J:   I could not find it but I am hoping someone will help me.  Is it defined in this Act?

MR FRASER:   I do not recall seeing the definition in this Act, your Honour.

GUMMOW J:   Is there anything in this Act that picks up definitions from other Acts?

MR FRASER:   I do not believe anything relevant, your Honour.

GUMMOW J:   You really do have to start at the beginning if you are construing these statutes, not jump in halfway down the stream.

MR FRASER:   No.  We apprehended that the fact that Defence Force employees were included is really an explanation for section 53 which provided a possible exemption.

GUMMOW J:   That uses this expression again, “Defence Force”, you see.

MR FRASER:   It does.  I was going to say that we respectfully submit that an asymptomatic infectious disease like HIV is really distinguished in a fundamental and relevant way from other disabilities which is that most disabilities lead to a lack of function or ability to do things, whether employment or otherwise, which persons without the disability can do, and, those disabilities, we submit, which do result in a lack of function of that kind potentially invoke the application of section 15(4)(a) or (b) because the lack of function reflects an inability to do something, whether with or without the assistance of the employer.  We, of course, accept that – I will come back to that – an infection, like any other disability, might in a particular case incapacitate an employee from carrying out inherent requirements of a particular job, but that is not this case.

KIRBY J:   I think there was a finding of fact that he had not reached that situation.

MR FRASER:   Yes.

KIRBY J:   Could you help me with this.  Given the provisions of section 53 which the specific reference to “Defence Force” and “combat duties”, how does one, in relation to a claim of an employee who is an employee of the Commonwealth as a member of the Defence Force in respect of whom the Act is to apply, interpreted the whole scheme of the Act, given that there is specific provisions in relation to combat duties and Defence Force personnel?  I mean, do you then read down the general provisions so that they are not to apply or in some way modify your construction of the general language and the general provision, or is it just irrelevant or is it in some way relevant and if so, how?

MR FRASER:   I would not submit, your Honour, that it would lead to a general reading down of a provision such as section 15(4) but it is relevant at least to this extent that to the extent that it might be contended that there is something peculiar about Defence Force employees which justifies treating particular disabilities as, in effect, inherent requirements or the absence of disabilities as inherent requirements, that is catered for by section 53.  I have in mind propositions that have been put that there is a particular importance in defence of esprit de corps which might be affected by admitting members with an infectious disease, for example.

CALLINAN J:   Mr Fraser, you would almost say, would you not, that this is a code for the exemption of the employer in the case of Defence Force personnel, would you not?  It is a specific provision relating to Defence Forces.

MR FRASER:   Yes.

CALLINAN J:   I would have thought you would be able to make quite a lot of it.

MR FRASER: I would submit that, your Honour, but it is not a submission that I have made because our primary submission is that the words of section 15(4) are simply not apt to cover this kind of case and that partially, at least, because of the presence of provisions like section 53 and section 48, more generally, there is no particular reason to stretch the words in section 15(4) to cover a case of this kind. So, we put it slightly differently from the way your Honour does.

CALLINAN J:   It is a bit better than that, Mr Fraser.  If you do not want the point, do not worry about it.

MR FRASER:   I will accept your Honour’s proposition with gratitude and make it my own but I do not wish to abandon the other way of approaching it.

GUMMOW J:   Your other approach, contrary to what Justice Callinan has been putting to you, has the disadvantage of being myopic – does not look to the whole Act.

MR FRASER:   Your Honour, I hope to correct that myopia, if I can.

GUMMOW J:   That myopia seems to have infected this case, both at the first level in the Federal Court and in the Full Court.  I now see why.

MR FRASER:   I can disclaim my creating the infection levels below this Court, your Honour, but not here, of course.  What I was going to ‑ ‑ ‑

McHUGH J:   Before you do that, at some convenient time you will you deal with a problem that concerns me which has not been ventilated either in the courts below, except perhaps tangentially, or in the submissions.  It seems to me a the moment that what is set out at page 14, line 19, is a fairly specific factual finding concerning the inherent requirements of the employer, and that is in your favour, but, are there obligations of law – there are obligations imposed on employees which must almost always be regarded as inherent requirements of the employment.

Just take a very general matter, the implied obligation of fidelity to the employer, is that not an inherent requirement of all employment, unless it is excluded?  And as a matter of law, is it not an inherent requirement of every employment that an employee shall not expose the employers or other employees, person or property, to unnecessary risk of harm?  If it is, then does it not then raise a factual question as to whether or not in the particular circumstances of this case the presence of HIV in the body of this particular employee in this particular setting exposes people to unnecessary risk of injury which seems to be very much a factual question and would have to be determined by the Tribunal, but they are the things that are exercising my mind at the moment, so, at some stage I would like you to turn your mind to it, Mr Fraser.

MR FRASER:   Yes, I hope that the development of the oral argument will cater with that particular issue. 

McHUGH J:   Yes.

MR FRASER:   Your Honour, what we submit about it is that section 15(4) is incapable of application to the mere existence of risks associated with the particular employment, which risks arise from the transmission of an infectious disease.

HAYNE J:   Why?  Why do you not begin by identifying the employment before we get into all these buzz phrases that seem to bedevil this case?

MR FRASER:   Because, your Honour, we respectfully submit that when one reads the words of the subsection they really contain within them two elements, not just one.  The first is the existence of the disability and the second is that as a consequence, the employee is unable to carry out something and we submit that that is really where the focus has not so far been in the court below.  In other words, that what this provision requires is an identification of something which the employee is unable to do as a result of having the disability and we would submit that when looked at more closely from that respect that your Honour Justice McHugh’s concerns can be catered for ‑ ‑ ‑

McHUGH J:   Absolutely.  If you are right on the argument, you ignore such considerations.  My reading of the learned Commissioner’s reasons would seem to indicate that he saw the “inherent requirements” notion as concerned with the task or skills of the employment and would reject any notion that “inherent requirements” might cover other matters, and in particular, for instance, legal obligations and the kind that I put to you earlier.

HAYNE J:   That, again, drives you back to what is the job?  Is the job to be a soldier, is the job to be a deployable soldier, is the job to be a deployable active service – possibly active service soldier, if you are going to reduce it to the slogans that, as I say, this case seems to have been argued in?

MR FRASER:   Your Honour, accepting that the job is a deployable soldier in active service, the question which this particular provision requires an answer to is whether the existence of the infection means that that solider is unable to do something, unable to carry out some requirements of an active soldier, and we submit that ‑ ‑ ‑

McHUGH J:   At any particular time, or generally, which is another important question in this particular case.

MR FRASER:   Yes.  Well, at least we rely upon the findings of facts in that respect but that does not seem to be a reason for impugning as a matter of law the finding of fact that we do have in our favour.

GUMMOW J:   It does not look to me, I must say - and perhaps I am the only one - as if it is exclusively a finding of fact.   Mr Fraser, there was an instance, I think at Milne Bay, when they issued the cooks in the militia with rifles and they had to go into combat.  I mean, the potential area of deployment of any solider, whether he is a signaller or something else, is virtually, in combat conditions, utterly unrestricted.

MR FRASER:   The Commissioner accepted that, your Honour - - -

CALLINAN J:   I do not know whether he did.

MR FRASER:   - - - by referring to:

irrespective of where the soldier is located or deployed.

GUMMOW J:   I do not know whether he did, really.  It gets back, I think, to Justice McHugh’s question, “What is the nature of the employment?”

MR FRASER:   Yes.  Well - - -

HAYNE J:   And is the focus on whether the solider can carry out the duties or whether command can send him or her, given the disability that the solider has, into active service?  Can command deploy that solider in that place or is that an irrelevant inquiry?

MR FRASER:   We would submit that the words themselves, at least, focus upon the potential employee or employee talks about factors personal to the employee and then it says, the person, because of his or her disability would be unable to do the job, as it were.

GUMMOW J:   You have got specific provision about “combat duties” in section 53.

MR FRASER:   Yes.  We also refer in the context ‑ ‑ ‑

GUMMOW J:   Legislature turned its mind to this question.

MR FRASER:   Your Honour, that has been relied up, section 53, but the response in the court below was that there may be a number of exemptions which are applicable.  That does not mean that one is the only exemption application.

GUMMOW J:   Exemption is not quite the word, any way, is it?

MR FRASER:   No, your Honour, probably not.  It is rendering something not unlawful, as it were, is the language generally used in these provisions.

KIRBY J:   That is why I asked the question earlier, “How does one construe a statute which has a general provision?”, and then Parliament has turned its attention to the very particular problem of combat duties and has given very large powers effectively to deal with that particular problem.  Now, how does one then construe the general when there is a specific provision which can be brought into effect will cover that little field?

MR FRASER:   Yes, well, I have accepted the ‑ ‑ ‑

KIRBY J:   You did not seem to do so very enthusiastically, where it may be not an important point.

MR FRASER:   I accept that, your Honour, but I can make the proposition that section 53 provides a code to cover this particular case but we also wish to attempt to meet the argument that it does.  I am not sure I can say much more about the proposition that section 53 provides a code to meet the facts of the particular case.

KIRBY J:   Do you know if the regulations have yet brought that section into force, because there are peacekeeping forces overseas deployed at the moment, I think.

MR FRASER:   Yes, I am instructed they have.  I suppose a peculiarity of this particular case is that it did not occur until afterwards – until after the particular event.

McHUGH J:   What do you say about cases like Chesterman's Case, in answer to what Justice Kirby asked you?  In Chesterman Lord Justice Buckley or Lord Wrenbury, as he then was, said that:

little weight is to be attached to the mere fact that specific exemptions are found which would be covered by the wider –

exemptions in a particular Act of Parliament.  Do you accept that as a general principle or ‑ ‑ ‑?

MR FRASER:   Not as a general principle, your Honour, because it must surely depend in each case upon the particular structure of the Act and particular objectives and so on that are set out.  I should say that there is in fact reference to this particular matter in the explanatory memorandum that I was going to, a very brief reference.  I can probably come to it now, but can I first say that what we submit about section 15(4) is that it is accurately reflected in the explanatory memorandum which simply says, at page 10, that it applies when a person simply cannot do a job.  Dealing specifically with subclause 4, describing it as an important exemption:

This clause essentially provides that a person with a disability cannot, by the provisions of this Bill, make a complaint alleging that they were not given a job which they in fact cannot do.  The Bill talks about a person not being able to carry out the inherent requirements of a particular job.

KIRBY J:   Is the explanatory memorandum attached?  Is that a document behind a yellow tab, is it?

MR FRASER:   We have provided it to the Court, I am instructed.  I am told we provided a copy when I looked at it it seemed to be incomplete.  It was provided.  Can I hand up a more complete copy of the explanatory memorandum which I think will deal with all of the provisions which might possibly arise.

CALLINAN J:   Mr Fraser, could I ask you this, do you say that but for these legislative provisions, if the Commonwealth did allow your client to continue in the services and another serviceman or servicewoman became infected, that servicewoman or serviceman could sue the Commonwealth, following, Groves’ Case, for negligence.  Leaving aside the provisions of the Act but should the Act be interpreted, having regard to that matter?

MR FRASER:   If the Act were not there then we would accept that there is at least a possibility that there might be such a suit.

KIRBY J:   Is there a particular remedy provided by the Act itself, which is what your client sues for?  What are the remedies your clients gets under the Act?  Does he get money or does he get an apology or ‑ ‑ ‑

MR FRASER:   There is a range.  It is a smorgasbord which includes money or reinstatement which is not actually now possible, because of the regulations, but it would include money.

CALLINAN J:   Could I ask you this question, would the interpretation that you advance defeat any right of action that another service person so infected might otherwise have?

MR FRASER:   By the mere employment, the mere fact of employment, yes.

CALLINAN J:   No.  The fact of employment.  Your client, I think, signed an acknowledgment when he enlisted that he would submit to such a test and that he might be discharged and not admitted to the forces - I think this is correct, is it not - if in fact the tests were positive?

MR FRASER:   Yes.

CALLINAN J:   He actually signed a positive acknowledgment to that effect, I think, is that not right?

MR FRASER:   Yes, he signed an acknowledgment that he would be tested and so on.

CALLINAN J:   So, therefore, the Commonwealth has turned its mind to this matter.  It has all the information.  A test has been taken.  Assume infection.  Would your interpretation of the Act defeat an action, then, by somebody so infected?

MR FRASER:   If the action was predicated merely on the fact of employment it would appear to do so.

CALLINAN J:   It might be, might it not, under some conditions?  Say an accident occurred, an unforeseeable accident occurred and a person became infected as a result of bleeding by your client.  Without any negligence in relation to that event at all, the negligence alleged being the permission or the causing of your client to participate, in company with others, in an activity had the potential for infection, the Commonwealth well knowing of this.

MR FRASER:   I accept what your Honour says but the example your Honour postulates involves something more than mere employment.  It involves the particular way in which the particular employee is deployed.

KIRBY J:   Would it be negligent if the Commonwealth is merely conforming to the law?

MR FRASER:   I accept what your Honour says.  It would not be, except that only relates to the mere fact of the employment.  This Act only prevents the ‑ ‑ ‑

KIRBY J:   There may be a whole range of things.  I mean, people can be tested for HIV at one stage and become infected the next day.

MR FRASER:   Yes.

KIRBY J:   And, therefore, one assumes that the Commonwealth would take steps including in respect of combat duties to ensure that, so far as is reasonably possible, blood is handled in a way that is careful to that risk.

MR FRASER:   Yes, and the evidence which is referred to in the Commissioner’s decision refers to the probability that there are already people in the force who have some form of infectious disease, be it HIV or otherwise.

CALLINAN J:   The training itself may involve hazards in which somebody could become infected without any negligence at all on the part of your client or, indeed, any military person at all.

MR FRASER:   Yes.

CALLINAN J:   But to suggest that military duties do not involve a real risk of hazard, even in training, in preparation – I mean, statistics in the Second World War show that many, many people were injured in training before they got anywhere near the front.

MR FRASER:   Yes.  The same is true, with respect, we submit, of taxi drivers and employees who have to cross the road in the course of their employment and process workers.

CALLINAN J:   I am sorry, no.  No, Mr Fraser.  Soldiers are training to kill people and to be killed themselves.  It is in the inherent nature of the activity.

MR FRASER:   Yes.

CALLINAN J:   I am sorry.  It cannot be equated with taxi driving or crossing the road.

MR FRASER:   Yes.  Well, I am not familiar with the ‑ ‑ ‑

CALLINAN J:   And training for warfare is inevitably a very, very risky activity.

MR FRASER:   Yes. Your Honour, we would submit that might well explain two things. One is the presence of section 53. The other is that if the inherent risks of the spread of an infectious disease are to be heightened by the mere fact of employment, then there is, we would respectfully submit, clearly a question of public health involved and section 48 might also possibly have application.

CALLINAN J:   You still have not answered my question about the actionability.

MR FRASER:   I intended to, your Honour; I was not attempting to evade it.  I was accepting that the mere fact of employment of a person with an infectious disease without some form of statutory protection might well found a negligence action and the creation of a statutory requirement that there not be a rejection of that employment might well found a defence.

CALLINAN J:   I think it is a question that, for my part, I would like something a little more explicit on and you can give some thought to that.

MR FRASER:   Yes, I will, your Honour.

CALLINAN J:   I think it is relevant to the construction that should be placed upon the Act.

MR FRASER:   Yes. I was going to go slightly out of order to respond to this question, that is section 53 that your Honour Justice Kirby raised with me, and I mentioned there is something in the explanatory memorandum. On the page before the one I just took your Honours to, that is to say page 9 of the explanatory memorandum, just above the heading “Division 1‑Discrimination in work” there is a reference to the existence of these “exemptions”, as they are called. That is in the second‑last paragraph above that heading, the last two sentences dealing with what are called the exemptions “set out in Division 5” which do include section 53 and section 48 and section 55:

The provision of exemptions is intended to provide a balance between the right of people with disabilities to have the same rights as other citizens and other competing interests such as –

the example is given –

the need to maintain very high standard of fitness in the defence forces.

The point which I was going to make about it, and I am a little out of order, is that it rather suggests that the balancing exercise between the interests of the employee in not being discriminated against and other interests such as the interests of the Defence Force or the community against infectious diseases is carried out as a result of those exemptions in Division 5.

McHUGH J:   You do not seem to place any reliance on an argument that the effect of section 53 is to fragment the notion of employment.  In other words, where section 53 applies, as in respect of “combat duties”, “combat‑related duties” and “peacekeeping service”, there is complete exemption from the operation of the Act in respect of a person’s disabilities but, arguably, that means that in respect of other aspects of Defence Force employment either the Act does not operate at all, which seems unlikely, or you apply the general provisions as to 15(4), so you cannot take into account under 15(4) questions of engagement in combat duties and so on.  Do you follow what I am putting to you?

MR FRASER:   I do follow that.

KIRBY J:   It is Justice Callinan’s point earlier in the piece.

MR FRASER:   Yes.

CALLINAN J:   Particularly when it is a matter of declaration by the authorities.  They can declare virtually absolutely what ‑ ‑ ‑

GLEESON CJ:   A possible point of view is that there is a different quality about the potential exemption under section 53 and the exemption under section 15.  A possible point of view is that section 15 in its operation depends on matters of fact measured against the requirements of the legislation, whereas section 53 operates by the promulgation of a regulation which if promulgated entitles you to disregard all the issues of fact and other considerations that arise under section 15, so they are disparate provisions in that respect.

MR FRASER:   Yes, I accept that.

GLEESON CJ:   One operating, as it were, by governmental fiat and the other operating by measuring the principles of law and fact embodied in section 15 against the circumstances of a particular case.

MR FRASER:   Yes. I would also submit in response to what Justice McHugh has raised that the choice is not really confined to a consideration of the interaction between section 53 and section 15(4) because there is also in the Act the provisions such as sections 48 and 55. So that, for example, if I were faced with a particularly extreme example of a case in which the construction for which I contend might have some problems, one can always say section 55 exists, so, for very extreme examples that one might not have thought of, there is a possibility of exemption. So I bring those two into the equation your Honour Justice McHugh mentioned.

In relation to the point that your Honour the Chief Justice raises, it is really for reasons of that kind that we originally took our stand on the proposition that this particular set of facts cannot be brought within section 15(4) in the first place.  So that, whether or not there is the governmental fiat, the provision just does not apply and that it requires some stretching of language to make it apply.

GLEESON CJ:   Could I ask you a question about your concept of ability to perform the job, and this question is prompted by the reference that you have just shown us of the need to maintain a very high standard of fitness in the Defence Forces.  Whether or not a person is able to perform allotted tasks might not only raise a question of whether probably or almost certainly if given a task the person could perform it, it might also raise a question of the risks that performance by that person of that task might bring about to other people.

Could I take the case of a much less contentious form of potential disability:  coronary artery disease.  Suppose an officer or serving member of the Defence Forces was found to have coronary artery disease and a doctor was of the opinion that the probabilities were that that person could go on performing the tasks inherent in whatever the position occupied was but that they would carry with them a risk of collapse and danger to those around them in certain circumstances.  Would that be a legitimate matter to take into account in asking whether that person is able to perform the job?

MR FRASER:   We would submit that it would be but we would characterise it, with respect, slightly differently.  It can be brought within the words of this provision by approaching it this way, that there may be an inability to carry out a job because of a disability which carries with it a potential incapacity.  In other words, in the particular example that your Honour has postulated, there is a potential that the person will simply not be able to carry out the particular job.  We would submit that is really quite different from a case in which there is no question of a person having an ability, actual and potential, to carry out the job but that in doing so, there might be an event which gives rise by virtue of bleeding, as in this case, to the transmission of an infectious disease.  So, we would respectfully submit that the two examples are really quite different.

GLEESON CJ:   You can have a gradation of situations, can you not?  You can have a situation where, for example, because a person only has one leg then it is obvious that that person is physically incapable of performing a certain task.  Then you can have a slightly different situation under which, because of a weakness of some kind, a disability of some kind, the person can ordinarily perform the task but not without risk to himself or herself.

MR FRASER:   Yes.

GLEESON CJ:   And then you will perhaps have a slightly different situation again where the person can ordinarily perform the task but not when they are at risk to others.

MR FRASER:   I would submit about that, your Honours, that if in any case it can be said that the person cannot perform the task except with risk to that person or others, it can also be said in such a case as your Honour has postulated, that is to say a disability reflected at least in a lack of function, that the person is unable to do the job.

McHUGH J:   You keep using the word “job”.

MR FRASER:   Carry out the inherent requirements of employment.  I was adopting the shorthand in the explanatory memorandum.  I assure your Honour ‑ ‑ ‑

KIRBY J:   I think in Christie the distinction was drawn.  It talks here of particular employment.

MR FRASER:   Yes, so that is a relatively subtle distinction.  Your Honour Justice McHugh explained that in some detail and we would adopt that, but in this case the words of the legislation are closer to the convention than in Christie’s Case.

KIRBY J:   It is pretty alarming, is it not, to think that every soldier or member of the Defence Forces who has a bit of coronary artery disease stands at risk of being put off for that reason.  I mean, there you are, the War Cabinet is meeting and the general is called in and at the critical moment, “Do we send the gunboats?”, he says, “I’ve got a heart attack”, and he cannot help.  I mean, really, that is not what the Act is intended to protect, is it, that you put him off just in case at that critical moment he cannot perform the inherent requirements?

McHUGH J:   What about the pilot who used to fly from Sydney to Lord Howe Island, a single pilot with coronary artery and heart disease or epilepsy or something?

MR FRASER:   It is the same response, your Honour.  In each case the disability either is or has the potential to be reflected in the course of the particular employment in a lack of capacity to do the job or to carry out the inherent requirements of the employment.

McHUGH J:   That is why I asked you earlier whether it could mean unable to do it at some time or all the time and so on, but you accept that even if you are disqualified or may be disqualified at a particular point of time, that is sufficient?

MR FRASER:   Your Honour, in dealing with it at a level of construction of the provision, one must say that in each case, of course, one would have to see whether it was actually caught by (a) and that would be a question of fact or (b) because, to take the case of risk of coronary disease, there may possibly be some precautions which the employer can provide and the question might ultimately be whether to employ such a person would impose an unjustifiable hardship on the employer.  There is a different balancing exercise involved there but we respectfully submit that none of that has a bearing on this particular case in which the appellant is simply not incapacitated from carrying out the particular requirements of the employment but in which, in the course of carrying them out, there is a risk as there is, of course, in everyday life in the course of carrying out tasks of everyday life, that there will be a transmission of the infectious disease.

HAYNE J:   Do you therefore adopt the distinction drawn by the Commissioner at page 14 between “inherent requirement” and “incident”?
Line 10, “inherent requirement” which is distinguished from line 14, an “incident”.  The Commissioner appears to have founded the decision upon that distinction, does he not?

MR FRASER:   I would respectfully submit that the decision is not founded on it in a legal sense because in the previous line the Commissioner accepted that the inherent requirements applied:

irrespective of where the soldier is located or deployed.

So that what the Commissioner was doing was characterising deployment as an incident but not rejecting it as something to be taken into account at all.  In fact, he acted on the basis that it must be taken.

HAYNE J:   Well, I just do not follow what you are telling me, Mr Fraser, I am sorry.  I do not understand it.  At lines 16 to 19 you read what the Commissioner says.  Am I right to read it as based on a distinction between “inherent requirement” and “incident”?

MR FRASER:   Well, I would submit not, your Honour.  I accept the Commissioner said:

It is an incident of employment that the soldier may or may not be deployed to a specific location.

In fact, he also accepted that the inherent requirements to which he must pay attention for the fact‑finding exercise are the tasks which must be done whether or not the soldier is deployed, so that he really acted on the basis that he had to accept that the soldier had to accept that the soldier might be deployed.

HAYNE J:   Where does he accept that?

MR FRASER:   In the line immediately preceding the sentence “It is an incident of the employment” in the phrase “irrespective of where the soldier is located or deployed”.

HAYNE J:   Yes.

CALLINAN J:   But then in line 23 he refers to the “inherent or intrinsic characteristics of the employment”.  Does that embrace “incidents”?

MR FRASER:   No, your Honour, but he then refers to a disqualification of ability to “perform the characteristics tasks or skills required” and that is, I respectfully submit, clearly a reference back to the tasks or skills for which he or she is specifically prepared as a soldier “irrespective of where the soldier is located or deployed”.  So he was accepting that ‑ ‑ ‑

HAYNE J:   Capacity for deployment is therefore not a matter that was taken into account.  Is that not right?

MR FRASER:   I am sorry to keep responding the same way, your Honour.  I would respectfully submit that the possibility of deployment was in fact explicitly taken into account in those passages at lines 15 to 18.  Really, the way this has developed is a bit confusing but we submit it is this, that because the Commonwealth cannot point to something that this man is unable to carry out, this construct of deployment is introduced as though it is itself an inherent requirement which must be carried out by the appellant and we would respectfully submit that in fact it is unnecessary and irrelevant because the Commissioner accepted that one must look at this person as a man who must be able to do what a soldier must do wherever it must be done and in whatever capacity a soldier must act.

GLEESON CJ:   A man with infectious hepatitis is perfectly capable of doing the job of a cook, is he not?

MR FRASER:   Yes, but, your Honour, to employ a man with infectious hepatitis as a cook would undoubtedly be to run an absurd risk of affecting public health.

GLEESON CJ:   Exactly, but what is it that the man is unable to do?

MR FRASER:   He is able to do everything, your Honour, but there is an exemption under ‑ ‑ ‑

GLEESON CJ:   Does this exemption cover that?

MR FRASER:   No, your Honour, because there is an exemption under section 48 that covers that particular situation.

McHUGH J:   What if I employed that person as my cook.  There is no question of the section applying there, is there?

MR FRASER:   Well, I would respectfully submit there is because infectious diseases affect public health because they are infectious and, if your Honour were to employ a cook who had an infectious disease which was likely to be passed on, it would be passed on at least to one person and then probably to others. We would respectfully submit it might be a reason for giving a slightly broader reading of section 48 if one was concerned about falling between the cracks there. It is not a reason for putting construction on section 15(4)(a) that it does not really bear in its words.

KIRBY J:   Where do you find the clearer statement in the Commissioner’s findings that he had taken into account all of the incidents to which the appellant might be directed as a soldier?

MR FRASER:   Your Honour, I think that passage starts at page 12 of the record at about line 15:

there is no present physical inability or incapacity based on the complainant’s HIV status that prevents him from undertaking deployment if it was so ordered or permitted –

and it goes on to explain that he can, because of his good health status, do whatever is required.

GLEESON CJ:   What do you take to be the meaning of the last sentence on page 12, Mr Fraser?

MR FRASER:   His Honour seems to be attempting to dispose of the argument that deployability as a separate idea is an inherent requirement of employment that must be carried out and is pointing out that it is really something imposed by the employer.  It does not mean, we respectfully submit, that his Honour is rejecting the proposition that the soldier must undertake deployment if so ordered or permitted because his Honour has actually expressly found that the soldier can do that.

Your Honours, I would respectfully submit that one of the difficulties with reading 15(4) as applying the circumstance such as this is that what seems to be involved in it is that under the aegis of that subsection there must be some form of balancing exercise.  In other words, as the Commonwealth puts it in its written submissions, there is an undue risk of infection.  Now, it must be balanced against something.  We do see in the Act the necessity for various balancing exercises.  We see it in section 15(4)(b).

If we take a case in someone such as a person in a wheelchair can only carry out the inherent requirements of a particular job with services provided by the employer, we see a balancing exercise there. The criterion for the result is whether there is an unjustifiable hardship on the employer and specific provisions about what to be taken into account are set out in section 11 for unjustifiable hardship. We see it also in section 48 where a criterion is provided about what is reasonably necessary to protect public health, but I respectfully submit that we see no criteria in section 15(4) about how one determines what is an undue risk by the transmission of infection or what it is balanced against in order to determine whether it is undue. The only criterion in subsection (4)(a) is inability “to carry out” something and I respectfully submit that that should not be read as though it involved this rather complex balancing exercise, also for the reason I just mentioned, that there is just no basis for it in the section.

I already took the Court to the provision in the explanatory memorandum which rather suggested that balancing exercises of that kind are covered under the aegis of what it calls exemptions in Division 5.  That was at page 9 of the memorandum.  I would make another point about it, your Honours, which is this.  It is really the same point put slightly differently, that there is of course a risk associated with a person with an infectious disease being in the community and there is a risk, perhaps a greater risk or a lesser risk, of the person being in a particular employment but there will be gradations of increases in risk in different employments but the fact that one employment rather than the other may carry a greater risk of infection does not seem to be, with respect, any sensible justification for contending that in that particular employment it is an inherent requirement that there be no risk.  We would respectfully submit that the same proposition put forward by the Commonwealth would in fact apply in any employment in which there is a risk of infectiousness.  The fact that it has a greater risk in one employment over the other does not seem to have any relevant bearing on the operation of this provision.

McHUGH J:   But supposing you had in employment a person who by reason of some psychotic disorder was prone to sudden irrational acts of violence.  Why would not an employer be entitled to refuse to employ that person, for example?

MR FRASER:   Well, the employer would, your Honour, because if one looked at whatever the particular employment was ‑ ‑ ‑

McHUGH J:   Well, the person may be perfectly capable of doing whatever the task might be.

MR FRASER:   But if they are prone to irrational acts of violence, your Honour ‑ ‑ ‑

McHUGH J:   Towards other employees.

MR FRASER:   Yes, well, in that case, I would respectfully submit they do not have the capacity to do the employment for the period of the employment because, inevitably, they will be doing something else, namely, attacking their co‑employees.  That is a case in which I respectfully submit that a disability leads to a lack of capacity, the disability being the underlying disease, in that case a psychiatric disease or illness, and it leads to a lack of capacity to carry out the work.

HAYNE J:   I do not know that the experience of Dr W.C. Minor and his contributions to the OED would bear that out, but perhaps we will leave the specific example out of it.  He was an inmate of Broadmoor for 30 years and was one of the most valued contributors to the dictionary.

MR FRASER:   Yes.  Well, he could carry out that particular employment, your Honour, and in that case, the employer may well not have been able to rely upon section 15(4)(a) but might have picked up (b) because he had to be kept confined because of occasional irrational outbursts, so there might have been unjustifiable hardship in making the employer pay for the padded cell, as it were.

We also submit that there is just no need to construe this provision as applying to this rather unusual case of asymptomatic infectious diseases given the presence of other provisions in the Act.  There is no need to read it so broadly as to say a person is unable to carry out a requirement when that person can in fact do so.

KIRBY J:   That is Justice Callinan’s point earlier, is it not?

MR FRASER:   In addition, we rely on section 48 and I suppose section 55 in an extreme ‑ ‑ ‑

KIRBY J:   Why would one not approach the Act in the normal way and say here is a general provision which is of universal application and, by the way, there is a special provision which does not take away the general provision but is still there and the whole world, all citizens, have to comply with it, but the special provision is particular not for the Australian Defence Forces but for the Australian Defence Forces in respect of regulation‑specified combat duties so that they will not be troubled by any applications at that particular time.  That would be a way to approach the scheme of the Act, would it not?

MR FRASER:   It is a possible way.

KIRBY J:   Is not that the preferable way, that the Act contains some very general provisions and then it contains some very particular ones but even then it is not just the Defence Forces but it is Defence Forces in specified regulation‑specified combat duties.

MR FRASER:   We would embrace that proposition but only to the extent that it would lead to the result that section 53 is a code that applies in such circumstances.

GUMMOW J:   You have to read it though with section 99, if you will, so that would certainly give you a specific footing before you applied section 48, for example. You have to have evidence as to what was reasonably necessary, et cetera…..I am not sure what you would need though for 53 other than the regulations.

CALLINAN J:   Or the absence thereof.

MR FRASER:   Yes.

CALLINAN J:   Mr Fraser, on your argument in relation to section 15 – I am not talking about section 53 – the only person disqualified as the button‑pusher for the ICBM would be a person with Parkinson’s disease.

MR FRASER:   That might be right, your Honour.  I am not sure if that is – no, I really could not accept that, your Honour.  The person who has the psychiatric illness which requires that person to leave the desk in a rage every ten minutes would not be capable of carrying out that job.

CALLINAN J:   You might have a person who 99.9 per cent of the time is utterly sane and rational but there might just be that one occasion upon which he or she might want to push the button.

MR FRASER:   Your Honour, yes, but the requirement of that job might include a requirement that the person push the button at the appropriate time.

KIRBY J:   If we are thinking at extremes, I mean, you have to have a number of combinations in order to make relevant your client’s HIV status to his duties as an Australian soldier at Wagga Wagga in the signals department.  You have to have that he is in fact deployed either to training or to combat duties, that in those combat duties he gets involved in a very significant blood‑producing incident, that the blood‑producing incident involves somebody else and involves the spreading of the virus to them and that it involves the passage of the virus in the particular blood in question and that it leads to HIV in that person.

MR FRASER:   Yes.

KIRBY J:   I mean, if you worked out the number of factors of risk, it would be infinitesimal.

GLEESON CJ:   That was precisely what the majority in the Full Court said should happen, that it should go back for that kind of exercise to be performed because they said they did not know.

MR FRASER:   Yes, exactly, and that is really why our submission is that the particular case that has been postulated is in fact not caught by these words which require an inability to carry out something.

GLEESON CJ:   Training, for example, might not necessarily include having bullets whizzing around your head but it might include crawling around amongst barbed wire.

MR FRASER:   Yes, but all those factors would be taken into account, of course, if it were only in a particular job - put aside the army - if it were only section 48 which were applicable. We would respectfully submit that in the case of an infectious disease, no matter how low the risk of infection, the consideration of public health is what would come to mind, and what would be partly in issue is: does the particular job increase the risks to the public health? Some jobs would not and some jobs would.

HAYNE J:   One would need to begin, as always, from the beginning including the definition of “disability” and, in particular, from that part of the definition that speaks of:

MR FRASER:   Yes.  I suppose one possible disconformity in that approach is if one looks at section 15(1)(b), it does talk about an employer discriminating “in determining who should be offered employment” and that is defined in a way which brings in - - -

KIRBY J:   Yes, but the opening words are that it is only “unlawful for an employer”, so that arguably, at least on this theory, it does not bite on the Commonwealth at least, especially given the common law exemption.  In other words, to override the old law, you would have to have a reasonably clear imposition of liability on the Commonwealth by the statute.

MR FRASER:   Yes.  Really reluctant as I am to argue against what is possibly a way out, I have to say that there might be difficulty.  I cannot bring to mind every provision of the Act but the Act does, by including a definition of “Commonwealth employee” as meaning a member of the Defence Force, which has no bearing on section 29, rather suggest that other provisions in the Act which refer to employees might have some application to members of the Defence Force.

GUMMOW J:   Well, it picks up the definition of “employment”.

MR FRASER:   Yes, and therefore - - -

GUMMOW J:   There is no definition of “employer”, is there?

MR FRASER:   No.

KIRBY J:   And at common law, the Commonwealth was not the employer.

MR FRASER:   No.  The difficulty is that this construction that we are now discussing may possibly mean that there is no point in the definition specifically picking up members of the Defence Force.

GLEESON CJ:   Well, it might also mean that you are out of the frying pan and into the fire.

MR FRASER:   Exactly. 

GLEESON CJ:    Maybe you would like to reflect on that overnight, Mr Fraser.

MR FRASER:   Yes.

MR TRACEY:   Your Honours, before the Court adjourns, may I intervene to assist to this extent.  The regulations that your Honour Justice Kirby was asking about appear at page 30 of the appeal book, and could I direct the Court’s attention, in the light of the most recent discussion, to section 124 of the Act.

GLEESON CJ:   Thank you, Mr Tracey.  We will adjourn until 10.15 tomorrow morning.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 22 JUNE 1999