Y v Human Rights & Equal Opportunity Commission

[2004] FCA 184

FEDERAL COURT OF AUSTRALIA

“Y” v Human Rights & Equal Opportunity Commission [2004] FCA 184

DISCRIMINATION – disability – refused to employ on basis of behaviour caused by disability – meaning of discrimination – whether discrimination in the “arrangements” made for employment

WORDS & PHRASES – discrimination

Anti-Discrimination Act 1977 (NSW) s 42B
Disability Discrimination Act 1992 (Cth) ss 5, 15

Holdaway v Qantas Airways Limited [1992] EOC 92-395 cited
New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 cited
Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237 cited
Purvis (on behalf of Hoggan) v New South Wales(Department of Education and Training) (2003) 202 ALR 133 applied
X v McHugh, Auditor-General for the State of Tasmania [1994] EOC 92-623 cited

“Y” v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and AUSTRALIA POST

VG 21 of 1998

FINKELSTEIN J
4 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 21 of 1998

BETWEEN:	“Y” Applicant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and AUSTRALIA POST Respondents

JUDGE:	FINKELSTEIN J
DATE:	4 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, or Y as he has been referred to throughout this proceeding, suffers from a “disability” for the purposes of the Disability Discrimination Act 1992 (Cth). Y’s disability has been described variously as an obsessive compulsive disorder, a personality disorder with behavioural implications, a paranoid psychosis and residual schizophrenia with an avoidant personality disorder. Since 1987 Y sought employment with the second respondent, Australia Post, as a mail officer or postal delivery officer. For a number of years the recruiting process at Australia Post involved a system known as the “order of merit”. Under this system applicants for employment were graded according to their performance in examinations and as positions became vacant those qualifying highest were offered the available position. At first Y did not obtain employment with Australia Post because he did not qualify sufficiently highly in the order of merit to be offered a position. In March 1988, however, Y made a menacing telephone call to a female Australia Post employee. As a result, his file with Australia Post was marked “Not to be employed under any circumstance”. Some years later Y applied to the Administrative Appeals Tribunal to have the notation deleted. That application was resolved when Australia Post agreed to amend the notation to read “Not presently employable”. During the course of the AAT application Y discovered that Australia Post had obtained a report from Dr N Parker, a psychiatrist, which discussed Y’s mental condition. In 1979 Y had consulted Dr Parker following a government medical officer’s assessment that he was unfit for work as a clerk in the public service. At this time Dr Parker reported that there was no evidence that Y was suffering from any form of mental illness. Indeed, he recommended that Y should be reinstated as a clerk. Dr Parker saw Y again in 1981 and again in 1983 following his admission as a patient at the Royal Park Psychiatric Hospital. On this occasion Dr Parker formed the view that Y was “mentally ill and suffering from schizophrenia”. In his report Dr Parker said that he considered Y to be “potentially highly dangerous”. On the other hand Dr Parker pointed out that Y “could well go through life as an odd loner thinking violent thoughts but never acting them out” noting that Y was able to “ke[ep] a reasonable control of himself”.

2. Y formed the opinion that Dr Parker’s 1983 report was the reason Australia Post refused to employ him. So Y lodged a complaint with the Human Rights and Equal Opportunity Commission in July 1993 alleging that Australia Post had engaged in unlawful discrimination contrary to ss 15(1)(a) and (b) of the Disability Discrimination Act.

3. Section 15(1) renders it unlawful for an employer to discriminate against a person on the ground of that person’s disability: “(a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment”. Section 15(4) provides that there will be no unlawful discrimination against a person on account of that person’s disability in contravention of s 15(1)(b) if after taking all relevant factors into account the person “would be unable to carry out the inherent requirements of the particular employment”. Note that this “defence” does not cover a breach of s 15(1)(a).

4. Following a hearing which occupied eight days during which, for the most part, Y was represented by counsel, the Commissioner dismissed the claim in July 1996. First the Commissioner found that Australia Post had not engaged in unlawful discrimination against Y contrary to s 15(1)(b). In fact the Commissioner did find that Australia Post had discriminated against Y on account of his disability by refusing to employ him because he had made the menacing telephone call. But he was satisfied that Y was not able to carry out the inherent requirements of the position of a postal delivery officer or mail officer. As a result, Australia Post’s discrimination against Y was lawful. The Commissioner also found that there had been no discrimination in the arrangements made for determining whether Y should be offered employment in contravention of s 15(1)(a) for reasons which I will come to in due course.

5. Y, who now appears on his own behalf, seeks to review the Commissioner’s decision under the Administrative Decisions Judicial Review Act 1977 (Cth). To succeed and have the decision set aside Y must show that the Commissioner erred in law in some respect. The need to demonstrate error of law on the Commissioner’s behalf presented Y, a layman, with a difficult task to say the least. Yet he was able to put a good deal of energy, perceptiveness and intelligence into his case. If, in the end, Y is unsuccessful in his application it will not be because he failed to argue his case with vigour.

6. To deal with this application it is necessary to recount some of the evidence that was before the Commissioner.  It is, I think, in Y’s interest that this be kept to a minimum.  For the most part it will be sufficient to summarise the evidence.  In one or two instances, however, more than a summary will be required.  Generally I will take the evidence from the recitation that appears in the Commissioner’s reasons, though on occasion it will be necessary to refer to it in a little more detail.

7. Y was 39 years of age when the hearing before the Commissioner took place.  Despite his disability Y had completed tertiary education and had held a number of jobs.  Between 1977 and 1981 Y was a permanent member of the Commonwealth Public Service.  He resigned in 1981 to take up full-time studies.  He successfully completed a Bachelor of Arts degree in 1995.  This was followed by part-time studies in psychiatry and law, human rights and criminal justice.  From 1981 to 1989 while a part-time student Y held a number of part-time positions with Commonwealth or State government departments, usually as a clerical officer. 

8. Throughout the period of his employment, and while he was engaged in his studies, Y’s disability caused him to engage in a good deal of anti-social behaviour.  On this aspect the Commissioner made the following observations and findings: 

   (1)In 1979 Y was suspended from his employment because he had threatened a co-employee to “blast him if he threatened again”.

   (2)In 1980 Y was counselled on a number of occasions for late attendances.

   (3)In 1980 Y made unwelcome advances by telephone and in writing to a female co-employee.

   (4)In 1981 a magistrate found that Y had indecently assaulted a young female.

   (5)In 1982 or 1983 Y was banned from attending lectures given by a woman because of his harassment of female students and lecturers.

   (6)In June 1983 Y was admitted to Royal Park Psychiatric Hospital following a complaint from a young woman whom he had approached at a McDonald’s restaurant.

   (7)In March 1988 Y telephoned a female employee of Australia Post and swore at her.  As a result Y was charged and convicted of making a menacing call.  Y alleged that he was convicted because his lawyer had entered a guilty plea without Y’s consent.

   (8)Over a number of years Y wrote letters to Australia Post and the Australian Government Solicitor making “baseless or abusive comments about employees of Australia Post”.

   (9)In 1993 Y was convicted of using indecent language during a dispute involving the sale of his parents’ home.  Y acknowledged that on the day of the auction he placed a sign at the home which falsely asserted that the auction had been postponed by order of the Supreme Court.  The sign also said “Trespassers Shot Dead”.

   (10)In July and December 1994 Y was involved in incidents with his brother and sister-in-law which resulted in each of them seeking domestic intervention orders against him.

9. For the purposes of the hearing before the Commission each side called medical evidence.  In support of his case Y called three experts:  Dr Murphy, a psychiatrist; Mr O’Neill, a psychologist; and Dr Watson-Munro, a consultant forensic psychologist.  Each tendered a written report and was cross-examined by counsel for Australia Post.  What follows is a summary of their evidence.

10. Y had been a patient of Dr Murphy for one year prior to his report.  Y had been referred for treatment by his local doctor because Y had difficulty coping with his mother’s death.  Dr Murphy expressed the opinion that Y was suffering from “a personality disorder” with some paranoid features.  He could also “fulfil the criteria for avoidant and perhaps also obsessive-compulsive personality disorder”.  Dr Murphy acknowledged that Y had “exhibited a pattern of socially inappropriate behaviour over many years” and that he “has been particularly awkward in his dealings with females and has been verbally abusive, at times apparently making threats”.  Nonetheless, Dr Murphy said that Y

    “could again work in a sympathetic and structured work setting in which his work requirements were made explicit and clear.  It is positive that he has continued to see me and talk about his difficulties and providing he has appropriate outlets for ventilating his frustrations I think that the risk of [Y] becoming violent is small”. 

11. Mr O’Neill was a counsellor at La Trobe University.  He had seen Y, who was a student at the university, on many occasions between 1981 and 1988, including periods during which Y had “intensive therapy”.  Mr O’Neill said that Y “is a highly perceptive and intelligent man who has a very strongly developed sense of justice”.  He expressed the opinion that while Y “does have deeply entrenched and rigidly held ideas and values and lives in a very restricted and circumscribed life space, in all the time I have known him he has never shown any physically violent behaviour.  His social skills are unusual and he generates anxious negative reactions in others but, in my opinion, he does not suffer any form of psychosis.” 

12. Dr Watson-Munro had examined Y on two occasions, in 1995 and then in 1996.  Dr Watson-Munro had been given a detailed briefing as to Y’s background, and had been provided with the medical reports which had been obtained by Australia Post and written statements of persons who made complaint about Y’s behaviour.  According to Dr Watson-Munro Y was “reasonably well oriented in time and place with no indications of psychosis”.  Dr Watson-Munro did observe, however, that Y was “extremely obsessional in his dealings and, at times, has a tendency to perceverate upon issues”.  The doctor expressed the opinion that Y was “suffering significant psychological problems in the context of … an obsessive compulsive disorder and associated with this some elements of social phobia”.  He said that these problems may create some difficulties for Y in terms of his employment unless he was placed in a situation where people were briefed beforehand and were reasonably supportive and sympathetic to his idiosyncrasies.  Importantly Dr Watson-Munro said there was nothing from his observations of Y “to suggest that he is dangerous in terms of being a physical threat to others”. 

13. Australia Post called a number of witnesses and tendered a large volume of documents.  The Commissioner described this evidence as falling into four categories:  viz (1) evidence as to Y’s past behaviour; (2) expert evidence as to the nature of Y’s disability; (3) evidence as to Y’s previous dealings with Australia Post; and (4) evidence as to the nature of employment at Australia Post which Y had sought and the difficulties that would be created in employing Y. 

14. The evidence about Y’s past behaviour included that given by police officers who had been involved in the complaint against Y arising out of his menacing telephone call to the Australia Post employee.  One officer said that upon his conviction in the Magistrates’ Court Y “tried to jump from the dock and attack the presiding magistrate”.  He also said that following the conviction Y had lodged with the Internal Investigations Branch of the Victoria Police eighteen complaints against the officer.  Another police officer gave evidence about an incident in February 1992 at the home of Y’s father.  This officer said that he had seen Y assault his father by lifting him off the floor and throwing him along the hallway.  There was also written evidence that Y made a number of abusive telephone calls to young females, including the receptionist employed by the real estate agent that was conducting the auction of Y’s parents’ home. 

15. Evidence about Y’s disabilities was given by Dr Kenny, a consultant psychiatrist.  Two important passages in Dr Kenny’s report were referred to in the Commissioner’s reasons.  Both relate to Y’s ability to work at Australia Post.  At one point Dr Kenny said:

    “[Y] is clearly the sort of man who would be very difficult to have in any work environment.  He would be inappropriate in his relationships with workmates, denying responsibility for his own behaviour, and, indeed, could well be dangerous to those around him.

    Later he stated:

    “The question of how dangerous he is, is of course, a difficult one.  I can well understand that people would be frightened of him.  I can sympathise with the other views expressed, that he may well actually be dangerous in a physical sense.  In my view, this sort of behaviour and presentation to a prospective employer would, and should, properly preclude him from employment with that employer.”

16. It is not necessary to deal with the evidence on the third topic, namely Y’s previous dealings with Australia Post.  It is, however, important to mention some of the evidence about the final topic, the nature of the employment which Y was seeking.  This evidence was given by several Australia Post employees including the manager of the Melbourne City Mail Centre, the group manager of the Security and Investigations Service and the Equal Opportunity Employment Adviser for Australia Post headquarters. 

17. The mail centre manager said that work at the mail centre is team based and the teams (usually comprised of eight persons) work closely together.  He explained that a postman was required to have regular contact with the public.  The manager of the Security and Investigations Service gave evidence about the security problems that would be created if Y was employed by Australia Post.  He said it would be necessary to isolate Y within his work centre and if that was not feasible, which was his belief, then Y would have to be placed under constant surveillance at an estimated cost of $80,000 per annum.  He said that in reality none of these precautions could be taken without serious loss of productivity, loss of morale and industrial action by other employees.  The Equal Opportunity Employment Adviser said that she did not consider Y was employable by Australia Post.  Principally her concerns were based on the likelihood of Y harassing other members of staff. 

18. In his reasons the Commissioner found that Y had been refused employment because of the menacing telephone call he made to the female employee which led to his employment file being marked “Not to be employed under any circumstance”.  He found that even if Y had otherwise been qualified or been suitable for employment with Australia Post he would not have been offered employment.

19. On the question whether this conduct amounted to discrimination in breach of s 15(1)(b), the Commissioner said that the menacing telephone call was a result of Y’s mental disorder and that in accordance with the prevailing view this amounted to discrimination. The Commissioner referred to cases which established that to discriminate against the person suffering a mental disorder because of the behaviour of that person which directly results from that disorder amounted to discrimination because of that disorder. Particular reference was made to X v McHugh, Auditor-General for the State of Tasmania [1994] EOC 92-623 in which Sir Ronald Wilson, the President of the Human Rights and Equal Opportunity Commission adopted this principle.

20. The Commissioner then considered whether the “defence” under s 15(4) had been made out. For this purpose the Commissioner made a number of important findings. Those findings included the following:

    (1)Y suffers from a partial loss of his mental functions which affects his thought process, perception of reality, emotions and judgment and that results in disturbed behaviour.

    (2)Y’s mental condition manifests itself in abusive, hostile, argumentative and over-litigious behaviour, including inappropriate behaviour towards women.

    (3)Y exhibited unacceptable behaviour on at least eleven occasions between 1979 and 1994.  (Some of these events have already been mentioned).  They suggest a propensity to violence or, perhaps more accurately, a reasonable belief in those who deal with Y that he has a propensity to violence.

    (4)Y made vexatious and inappropriate complaints against numerous persons with whom he had contact including police officers, lawyers who acted on his behalf and others.  (The details are set out in the Commissioner’s reasons.)

21. Next, the Commissioner considered how Y’s behaviour would affect his ability to undertake the jobs he was seeking.  The Commissioner found that Y could not carry out the requirements of those jobs.  The Commissioner said:

    “I do not consider that Y would be able to carry out the inherent requirements of the duties of a postal delivery officer or mail officer.  These jobs require him to mix with members of the public or to operate in a team environment.  His history of violence, harassment and complaints would not enable him to undertake this employment…

    It is difficult to envisage any kind of services or facilities which could be provided by Australia Post which would enable Y to carry out the inherent requirements of a postal delivery officer or mail officer, without resorting to fanciful possibilities.”

    For this reason, the Commissioner found that Australia Post had made out the “defence” under s 15(4).

22. Having disposed of the alleged breach of s 15(1)(b) the Commissioner then considered Y’s complaint of unlawful discrimination contrary to s 15(1)(a). On this aspect the Commissioner applied Holdaway v Qantas Airways Limited [1992] EOC 92-395, a decision of the New South Wales Equal Opportunity Tribunal. In that case Qantas had refused to employ Holdaway as a flight attendant on the basis of the company’s policy of not employing any insulin dependent diabetic. Holdaway alleged that this was discrimination contrary to s 49B(1) of the Anti-Discrimination Act 1977 (NSW). At the relevant time s 49B(1) made it “unlawful for an employer to discriminate against a handicapped person on the ground of his physical impairment – (a) in the arrangements he makes for the purpose of determining who should be offered employment; (b) in determining who should be offered employment; or (c) in the terms on which he offers employment.” The Tribunal said at 78,812:

    “[T]he location of S.49B(1)(a) in a sequence of events relating to offers of employment of which the event in para. (a) is logically (and usually temporally) antecedent to the events in paras. (b) and (c) points strongly to the conclusion that it is apt to catch conduct which logically precedes the point of time at which it can be said that an employer is ‘determining who should be offered employment’ … Such an interpretation is also consistent with the general requirements of Part IVA of the Act that employers and those interviewing applicants for employment are ‘to focus their attention on the merit of the applicant first’ … The latter consideration may well explain why the legislature saw no reason to provide any exception from unlawful discrimination carried out at this stage of the recruitment process.  After all, ‘arrangements’ of the kind contemplated S.49B(1)(a) are likely to be made without any advertence to the individual merits of potential applicants simply because they are likely to be made before any potential applicants have been identified.”

1. The Commissioner found that there were no arrangements in place which prevented persons suffering disabilities, including Y, from applying for positions within Australia Post. Accordingly he found that Australia Post had not engaged in discrimination contrary to s 15(1)(a).

2. Y challenges the Commissioner’s findings alleging errors of law in relation to most aspects of the reasoning process.  There was not, however, any challenge to the Commissioner’s approach as to the meaning of “discrimination”.  Indeed both sides presented their respective cases as if his approach was correct.  Unfortunately it was not.  This only became apparent when on 11 November 2003, well after the argument in this case, the High Court handed down its decision in Purvis (on behalf of Hoggan) v New South Wales(Department of Education and Training) (2003) 202 ALR 133 a case which considered the meaning of “discrimination” in a context very similar to the present.

3. In Purvis the complainant suffered brain damage as a baby.  He was expelled from his high school following repetitive anti-social and violent conduct towards other students and staff.  In the Human Rights and Equal Opportunity Commission the Commissioner found that this behaviour was “so closely connected to his disability that if … less favourable treatment has occurred on the ground of [the complainant’s] behaviour then this will amount to discrimination on the ground of his disability” (quoted in the Full Court’s decision in Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237 at 244). In reaching this conclusion the Commissioner followed the Commissioner’s decision in Y’s case against Australia Post.

4. On review (New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69) Emmett J said that the Commissioner was wrong in his finding that there had in the circumstances been discrimination. As Emmett J pointed out s 5 of the Disability Discrimination Act provides that a person, the discriminator, only discriminates against an aggrieved person on the ground of the person’s disability if, because of the aggrieved person’s disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in the same circumstances. According to Emmett J (at 79) the Commissioner had misdirected himself in regarding the conduct of the complainant which occasioned the expulsion as part of the disability of the complainant. The conduct was a consequence of the disability rather than being part of the disability. He explained that in order for there to be discrimination the proper comparison was between the treatment of the complainant with the particular brain damage in question and a person without that brain damage but in like circumstances (at 80). An appeal to the Full Court ((2002) 117 FCR 237) was unsuccessful and the Full Court’s decision was affirmed by a majority in the High Court.

5. In the High Court, Gleeson CJ (a member of the majority) said (at 137 – 138):

   “The circumstances to which s 5 directs attention as the same circumstances which would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder.  It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability.  It is another thing to say that the required comparison is with a non-violent pupil.  The required comparison is with a pupil without the disability; not a pupil without the violence.  The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. … [Section 5] requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder.  Such a comparison requires no feat of imagination.  There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others.  They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case. 

   …

   The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled.”

   In their joint judgment, as members of the majority, Gummow, Hayne and Haydon JJ, said (at 183):

   “Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability ‘in circumstances that are the same or are not materially different’. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator ‘treats or would treat a person without the disability’ (emphasis added). The ‘comparator’ identified by s 5(1) is ‘a person without the disability’.”

   They went on to explain (at 185 - 186):

   “In the present case, the circumstances in which [the complainant] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:

   (i)How, in those circumstances, would the educational authority have treated a person without [the complainant’s] disability?

   (ii)If [the complainant’s] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the complainant’s] disability?

   Section 5(1) could be engaged in the application of s 22 only if it were found that [the complainant] was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of [the complainant’s] treatment.”

6. It follows that the Commissioner was in error in finding, as he did, that to discriminate against a person suffering from a mental disorder on account of the conduct caused by the disorder was discrimination within the meaning of s 5. As the High Court made clear that is not enough to establish discrimination. To determine whether Y had been discriminated against two questions were required to be resolved: viz, (1) Having regard to the factual circumstances, how would Australia Post have treated a person without Y’s disability; and (2) If Y’s treatment was less favourable than the treatment that would be given to a person without that disability, was that because of Y’s disability. There will only be relevant discrimination if Y was treated less favourably than a person without his disability would have been treated if that other person had behaved in the same way as Y had behaved. The Commissioner did not deal with these issues because of the meaning he found to the word “discrimination”.

7. It is not easy to determine whether what follows from this mistake is a matter upon which it will be necessary to hear the parties.  On one view as the Commissioner did not deal with the questions he should have considered, the matter should be remitted for reconsideration provided Y wishes to rely on this error to found relief.  On the other hand sending the matter back on this ground may be futile in virtue of the findings of fact made by the Commissioner.  In due course I will hear submissions on this matter. 

8. In view of my finding that the Commissioner erred in holding that there had been relevant discrimination, it is strictly unnecessary to deal with Y’s complaints because they all proceed from a false premise knowing that Australia Post had in the circumstances been guilty of discrimination.  But in case I am wrong in the view I have formed I should at least deal with some of Y’s arguments.

9. Y’s main argument was that the Commissioner erred in law in holding that the facts of the case did not establish discrimination contrary to s 15(1)(a). If that point had been made good, the “defence” in s 15(4) could not apply. On this aspect, however, there is much to be said in favour of the approach taken by the Equal Opportunity Tribunal in Holdaway, the decision which was followed by the Commissioner. The approach is suggested by the origins of s 15(1)(a) which are to be found in Pt 4A of the Anti-Discrimination Act 1977 (NSW). This division was introduced by the Anti-Discrimination (Amendment) Act 1981 (NSW) to render unlawful discrimination on account of a person’s physical impairment. Section 49B (now s 49D) of the New South Wales Discrimination Act (upon which s 15(1)(a) is based) has already been set out. Reference should also be made to s 49Q relating to discrimination against intellectually handicapped persons which was introduced by the Anti-Discrimination Amendment Act 1982 (NSW). The Equal Opportunity (Discrimination Against Disabled Persons) Act 1982 (Vic) contains similar provisions (ss 27B and 27C) to deal with discrimination in employment against a person with an impairment. 

10. Section 49B was designed to take account of the comments of the Anti-Discrimination Board (Discrimination and Physical Handicap vol 1, 1979) in its report under s 119(a)(vii) of the Anti-Discrimination Act 1977. In the report the Board pointed out, by reference to the position in the United States, that a common form of discrimination was “the failure of an employer to provide an individualized determination of a handicapped person’s capacity to do a particular job” (p 118). The Board (at pp 120 – 121) favoured the view “that an employer’s decision to refuse employment to a handicapped person is justified only when the employer has provided an individualised determination of a handicapped person’s capacity to do a particular job, whereas it is not justified when the employer’s decision is based solely on assumptions about the handicapping condition.” This approach was, according to the Board, “central to any effective principle of non-discrimination” in the employment area.

11. The old s 49B(1)(a) (now s 49D(1)(a)) covers the situation of an employer who discriminates against a handicapped person without regard to that person’s individual characteristics. It covers that situation because it contemplates discrimination taking place before the employer has any knowledge of the individual characteristics of the handicapped person. Put another way, the “arrangements” which the employer makes for the purpose of determining who should be employed refers in particular to the circumstance in which the employer will decide who should be offered employment without regard to the particular characteristics of the person involved.

12. Section 15(1)(a) is designed to deal with the same circumstance. It seeks to outlaw the established ground under which persons with a disability will not even be considered for employment. It is not apt to cover the situation where a particular individual is refused employment, or an interview for employment, because of that person’s particular disability. In my view Y’s challenge to the Commissioner’s approach on this aspect could not succeed.

13. I can dispose of Y’s other complaints quite briefly.  For the most part, and this is not surprising giving Y’s lack of legal training, his attack challenged findings of fact made by the Commissioner.  As has been said time and time again, to make a wrong finding of fact is, without more, not a reviewable error of law.  Appreciating this to some extent Y asserted that some of the factual errors resulted from the Commissioner’s refusal to accept any evidence put forward by Y.  However, so far as I can determine the Commissioner did not refuse to receive any evidence which was relevant to the issues to be decided.  Y also said that he had been completely refused leave to issue subpoenas and as a consequence relevant evidence was not before the Commissioner.  I accept that Y was refused leave to issue a number of subpoenas.  I see, for example, that he was not given permission to serve a subpoena upon the Royal Australian and New Zealand College of Psychiatrists.  This is not surprising.  It is inherently unlikely that the College would have in its possession any relevant evidence.  The same may be true of other subpoenas.  I simply do not know. 

14. Y also claimed that the Commissioner was biased, in that from the outset he was of the opinion that Y could never work at Australia Post and had a closed mind to any evidence which was to the contrary effect.  My examination of the Commissioner’s reasons do not show any sign of prejudgment.  I have also examined the transcript of the proceeding before the Commissioner (not exhaustively but in some detail) to see whether the allegation of bias could be sustained from what was said.  True it is that from time to time the Commissioner was critical of the manner in which Y was putting his case, but this is far short of suggesting a closed mind.  That submission is not made out.

15. I will hear the parties on the appropriate orders to be made.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:            4 March 2004

The Applicant appeared in person.

Counsel for the Respondents:

Mr P Ginnane

Solicitor for the Respondents:

Australian Government Solicitor

Dates of Hearing:

11 September 2000

22 February 2002

13 & 14 June 2002

11 December 2002

Date of Judgment:

4 March 2004