REASONS FOR JUDGMENT
BURCHETT J
This appeal by the Commonwealth, brought to test a ruling in relation to the Australian Army, has much to do with blood. Modern warfare may seem less brutally physical than such a struggle as that of Horatius and his companions to hold the bridge, depicted by Lord Macaulay in his Lays of Ancient Rome, which cumbered with corpses -
"... the narrow way
Where, wallowing in a pool of blood,
The bravest Tuscans lay."
But the big and small wars of the twentieth century, the Commonwealth contends, have shown clearly enough that the science of slaughter still inflicts physical wounds, from which soldiers bleed, perhaps copiously. Realistic training exercises, too, may entail injuries. Bleeding, for today's army, involves a soldier's comrades in dangers unknown to Horatius, or to those American Indian warriors who were accustomed to seal their brotherhood in mutual blood. For the deadly viruses Hepatitis B, Hepatitis C and HIV have become prevalent, which infect through transmission of blood and other bodily fluids. The Australian Defence Force has responded by requiring recruits to acknowledge that they will be discharged, if found after medical examination to be infected with one of these viruses. It is the legality of a requirement of that kind, based on the exception contained in s 15(4) of the Disability Discrimination Act 1992, with which the present proceeding is concerned.
The circumstances in which the question comes before this Court should be stated briefly. The second respondent, called in the proceedings "X", who had seen some service as a signaller in the Army General Reserve, enlisted on 23 November 1993 as a "male general enlistee" in the Australian Defence Force. He had first signed an acknowledgment of the kind I have described, referring specifically to HIV, Hepatitis B and Hepatitis C. After his enlistment, a pathology test demonstrated that he was infected with the HIV virus. Thereupon, on 24 December 1993, he was discharged, pursuant to an Australian Defence Force policy applicable in respect of HIV infection and "other potentially serious diseases".
It is common ground that, in fact, HIV is infectious, and is transmissible by the exchange of bodily fluids including blood. The infection usually leads to the onset of Acquired Immune Deficiency Syndrome (AIDS), which is fatal. It is also common ground that X's HIV infection is a "disability" within the meaning of s 4 of the Disability Discrimination Act.
X complained of his discharge to the Human Rights and Equal Opportunity Commission. This complaint led to a Commissioner undertaking a public inquiry under s 79 of the Disability Discrimination Act to determine whether X had suffered, in the circumstances, unlawful discrimination by his discharge. During the inquiry, in March 1995, medical evidence was called that X was at his discharge and had remained symptom free, being classified as having a Category 2 (presymptomatic) HIV infection.
The appellant conceded that X, by his discharge, was discriminated against on the ground of his disability within the meaning of s 15(2)(c) of the Disability Discrimination Act, subject to s 15(4). (By s 4(1), definition of "Commonwealth employee", para (f), and s 12(5), s 15 applies with respect to a member of the Defence Force, who may, notwithstanding that Starke J, in The Commonwealth v Quince (1944) 68 CLR 227 at 245 did not regard him as a true employee, appropriately be called an employee of the Commonwealth: see the reference by Fullagar J to "employment" in Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237 at 283, a passage cited in Groves v The Commonwealth of Australia (1982) 150 CLR 113 at 123.) But s 15(4) was claimed to provide a defence. That provision is in the following terms:
"Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer."
The appellant's case was and is that it is an inherent requirement of a soldier's employment, as shown by the practice of the Australian Army, s 36 (read in the light of ss 31 and 32) of the Defence Act 1903, reg 135 of the Australian Military Regulations and the oath or affirmation of service taken by a recruit, that the soldier be available for deployment as required. (It should be added that this proposition is not peculiar to the Australian Army; it applies also, for instance, to the Canadian: Canadian Human Rights Commission v Canadian Armed Forces (Husband) (1994) 3 FC 188 at 198; Attorney General of Canada v Robinson (1994) 3 FC 228 at 238.) Deployment as required involves, it is then said, that the soldier will take part in physically demanding, and sometimes hazardous, field exercises, quite often in remote areas, and will engage in combat, when called upon, as a member of a unit the integrity and effectiveness of which will greatly depend on its esprit de corps and on each soldier's reliance on each of the others. The Australian Army must be prepared to fight against weapons or in circumstances that will be likely to cause some, and perhaps many, wounds suffered when the troops are at a distance from ordinary medical facilities. Realistic training may lead to similar consequences. The safety and morale of all will depend on immediate assistance being given to each other. To say that a man whose wounds would pose a new and deadly danger to his comrades can carry out these inherent requirements of his employment because he can perform the physical tasks of training and fighting, the appellant says, is to miss the essential nature of what is demanded of a soldier.
The defence raised by the appellant was not accepted by the Commissioner, who decided in favour of X, but a finding was made: "I am satisfied that in the course of training or in combat there is a risk, the measure of which will vary with the circumstances, that a soldier may be infected with HIV by another who is HIV positive." In the evidence, examples had been given to show how this might occur, such as consecutive grazing contact with some obstacle by soldiers in training, the more obvious effects of serious injuries and their immediate treatment in the field, and the practice of soldiers giving urgent blood donations in emergencies.
The Commissioner drew a distinction between the inherent requirements of an employment and its incidents. He accepted that the liability to be deployed, on which the appellant relied, was an incident of X's service, but he gave "inherent requirements" what he himself described as a "narrow and restrictive" construction. That construction limited the issue to whether X was "able to execute the tasks or skills" of a soldier. The actual "constraint upon deployment", the Commissioner ruled, "arises not because of the physical consequences of the disability in the particular person but because of an externally imposed requirement of the employer, based on policy considerations, which are designed to reduce the risk of passing on the HIV infection". Despite the concession in the last part of this passage, he considered the inability to be deployed was not a consequence of X's infection, but of the Army's policy. In developing this proposition, the Commissioner said that the risk of a process worker infected with HIV being injured and infecting a fellow worker "is the very same risk that may arise in combat consequential upon the soldier [with HIV] being deployed to a combat zone". Accordingly, the discharge of X from the Australian Army was found to constitute unlawful discrimination.
The appellant made application to a judge of the Court for judicial review of this decision. In a judgment which has been reported as Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76 at 91-92, the learned Judge reached the conclusion: "Although the Commissioner has construed s 15(4) as limited to an assessment of whether an employee has or has not the physical capability to be able to carry out the inherent requirements of the particular employment, a construction which I consider too narrow, it has not been shown that any wider construction applied in respect of [X's] employment as an enlisted soldier in the ADF [Australian Defence Force] would lead to any other result than that arrived at by the Commissioner" (emphasis added). On this basis, his Honour dismissed with costs the appellant's application. In case I should be thought to have overlooked it, I note that a remark made by his Honour (at 90), suggesting the appellant had not sought, before the Commissioner, a finding of an inherent requirement relating to the consequences for other soldiers of bleeding wounds inflicted upon a comrade infected with HIV, is simply incorrect. It appears that, unfortunately, at the hearing below a full transcript was not made available to the court.
From that decision, the appellant now appeals to the Full Court.
Before turning to the wider issues, I should comment on the decision of the judge at first instance that, although he had found an error of law in the Commissioner's reasons, the application should fail. This was because it had not been shown, his Honour thought, that the true view of the law "would lead to any other result". No authority was cited to justify disposing of the matter on that basis. In my opinion, the correct proposition is that there will be error of law in an administrative decision, requiring it to be set aside, if an error is shown "that could have affected the outcome of the case": Conway v Repatriation Commission (1988) 16 ALD 770 at 771, per Lockhart and French JJ; BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253-254, per Lockhart and Hill JJ; Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited (1994) 49 FCR 250 at 265, per Burchett J; Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 139 in the joint judgment of Burchett, Branson and Tamberlin JJ; Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147 ALR 608 at 630, per Burchett J. Unless the Commissioner's decision was able to pass this more stringent test, it was liable to be set aside, once the construction of s 15(4) on which it proceeded was found to be wrong. I need hardly add that the decision could not be saved, as appears to be suggested by an earlier passage in the judgment at first instance (at 91), by the Court making for itself further findings of fact. Upon judicial review, the Court cannot make such findings.
In my opinion, the Commissioner's admittedly "narrow and restrictive" view of s 15(4) is too narrow, and therefore wrong. The inherent requirements of a particular employment are not to be limited to a mechanical performance of its tasks or skills. They will frequently involve an interaction with other employees, or with outsiders. In some occupations, for example, a psychological problem producing significant rudeness to others might be disabling. Although all assigned tasks might be performed, the employee might be unable to carry out an inherent requirement of maintaining a smooth working relationship with fellow workers or with the general public. A Boeing 747 pilot of great skill who, however, was subject to fits of unreasonable rage with co-pilots or traffic controllers might, for that reason alone, be a danger to passengers. Coming nearer to the facts of this case, a teacher working close to pupils, an astronaut working with others in a capsule, or a tradesman working with an apprentice in a confined space, might each, if suffering from tuberculosis, be unable to carry out an inherent requirement of maintaining safety in the personal contacts required by those particular employments.
As the illustrations I have given show, a narrow construction of s 15(4) would have serious consequences both for employers and for third persons. I do not think Parliament intended the section to be construed so as to have those consequences. It is to be borne in mind that the decision whether a person would be unable to carry out the inherent requirements of the particular employment must be reached taking into account "all ... relevant factors that it is reasonable to take into account." Where work involves interaction or contact with others, this will generally be a relevant factor that it is reasonable to take into account. Another such factor may be the existence of a liability in a particular employment to the arising of a known type of emergency. Inherent requirements are not confined to what normally has to be done; they may include what will have to be done in foreseeable circumstances. A fisherman disabled from coping with a tangled trawling net may argue the net should not normally get tangled, but may be unable to carry out an inherent requirement of employment on a trawler nevertheless. To rule otherwise might be to put lives and valuable equipment at risk.
An argument was raised, in the written submissions presented on behalf of the respondent Commission, that sought to narrow s 15(4) by the exclusion from it of what were described as "the employer's operational requirements". But an employment will generally be an operation or series of operations. The place of s 15(4) in the scheme of the Act seems fairly obviously to be a practical one. It reflects the qualifications "as far as possible" and "as far as practicable" which s 3 makes when announcing the statutory object to eliminate discrimination and ensure equal rights for the disabled. If operations, at least operations at the core of an employment, cannot be carried on safely or satisfactorily, its inherent requirements are not being met in a practical sense which would accord with the context. In such a case, the distinction between operational and non-operational requirements is not of utility, just as Lord Hoffmann in Stovin v Wise [1996] AC 923 at 951-955 was unable to find assistance in a similar distinction. What is to be distinguished is a requirement that does not arise out of the nature of the employment or any aspect of it. The case of a compulsive smoker provides an illustration: he might be unable to carry out an inherent requirement of employment as a refueller or otherwise in the vicinity of volatile fumes, but be perfectly able to perform all the requirements of work driving a forklift.
The Commissioner and the judge at first instance sought support for narrow readings of the exemption contained in s 15(4) in the rule that remedial legislation should be liberally construed, a rule which does apply to human rights legislation and reinforces the statutory objects "to eliminate, as far as possible, discrimination" in the respects mentioned in s 3 of the Disability Discrimination Act: IW v City of Perth (1997) 146 ALR 696 at 702; Waters v Public Transport Commission (1991) 173 CLR 349 at 359, 394; and see s 15AA(1) of the Acts Interpretation Act 1901. But such a rule, as Cardozo J pointed out in Burnet, Commissioner of Internal Revenue v Guggenheim (1933) 288 US 280 at 286, must be applied with a watchful eye. Sometimes the construction which is liberal to one person may be illiberal to others. Where remedial legislation contains exemptions designed to strike a careful and practical balance between competing community interests, a Court which distorts that balance in the name of furthering the remedy risks usurping a political role, and in doing so, frustrating the will of Parliament. The Disability Discrimination Act was intended to relieve the deprivation and humiliation that too often accompany misfortune, but not at the cost of creating further misfortune. A line was drawn at s 15(4) to protect, at least, employers and fellow employees who might be affected by a disabled person's inability to carry out the inherent requirements of an employment. The legislative choice as regards where that line was to be drawn must be respected: cf. Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 608, 626-627.
In IW v City of Perth at 702, 704 Brennan CJ and McHugh J pointed to the "complex and artificial" nature, and the particularity, of the provisions defining unlawful conduct in the various enactments in this area. Their Honours' observations emphasize the necessity to recognize that a Court or tribunal construing the Disability Discrimination Act should be careful to keep to the path the legislature has marked out. Glosses, with their tendency subtly to introduce preconceptions, or at best to divert attention from the precise test adopted by Parliament, should be avoided, and the language of s 15(4), once it has been construed, should be applied directly to the circumstances found. If, as was said in the joint majority judgment in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576, "it is always dangerous to treat a particular word or phrase as synonymous with a statutory term", it is equally so to make of an expression foreign to the statute, such as "operational requirements", a criterion for the application of the test which the statute states in different language. This has been well recognized for a long time; in Everard v Poppleton (1843) 5 QB 181 at 184; 114 ER 1217 at 1218 Lord Denman CJ said: "[N]othing is more unfortunate than a disturbance of the plain language of the legislature by the attempt to use equivalent terms."
The submissions put on behalf of X at the hearing of this appeal went so far as to contend that health and safety considerations were irrelevant to s 15(4). A sausage maker, by reason of some disability incapable of making sausages hygienically, it was said, would not thereby be disabled from carrying out the inherent requirements of his employment. This is to give "inherent" an extraordinarily narrow meaning, but one consistent with that which the Commissioner gave it. A broader meaning is suggested by the language of the provision in its context, and would also be consistent with United States and Canadian decisions on similar legislation. It is apparent from s 4(1), the definition of "Convention", and s 12(1) and (8) that s 15 was intended, at least to some extent, to give effect to the Discrimination (Employment and Occupation) Convention 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958. Therefore international decisions in this area may throw light on the meaning of the section. Particularly, I think the language of a number of decisions in the United States and Canada does assist an understanding of what is involved in an inherent requirement of a particular employment.
In Southeastern Community College v Davis (1979) 442 US 397 at 407, the Supreme Court of the United States was concerned with a problem arising out of s 504 of the Rehabilitation Act 1973 (US), which prohibits discrimination against an "otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap". A serious hearing disability debarred the respondent from nursing training. The Supreme Court (at 407) tested the matter by what was "essential to participation in particular programs". It held that "the ability to understand speech without reliance on lipreading is necessary for patient safety". The institution's appeal succeeded. Subsequently, in Alexander, Governor of Tennessee v Choate (1985) 469 US 287 at 300, the opinion of the Court delivered by Marshall J said of this decision that what Davis sought "would have compromised the essential nature of the college's nursing program".
The idea that health considerations are irrelevant to the inherent requirements of an employment is also inconsistent with other US authority: see School Board of Nassau County, Florida v Arline (1987) 480 US 273. In the opinion of the Court delivered by Brennan J, with whom White, Marshall, Blackmun, Powell, Stevens and O'Connor JJ joined, it was made clear (at 287) that "exposing others to significant health and safety risks" could prevent a handicapped person from meeting the US statutory test under s 504 of the Rehabilitation Act of being an "otherwise qualified handicapped individual". There a school teacher was claimed to suffer from contagious tuberculosis. The Supreme Court held (ibid) that "in most cases [emphasis added] ... an individualized inquiry and ... appropriate findings of fact" would be required. In footnote (17), it added (inter alia):
"In the employment context, an otherwise qualified person is one who can perform 'the essential functions' of the job in question."
The Supreme Court also made it clear the purpose of the provision was to protect "handicapped individuals from deprivations based on prejudice, stereotypes or unfounded fear, while giving appropriate weight to such legitimate concerns ... as avoiding exposing others to significant health and safety risks". To this statement, the Court added footnote (16):
"A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk."
So the Supreme Court regarded ability to do the work without infecting others as an "essential function" of a job. While generally insisting upon an individualized inquiry, it allowed for cases where the nature of the condition would produce a necessary answer. It stated the policy of the legislation in balanced terms which accepted legitimate concerns such as health and safety risks, and saw its goal as protection from prejudice, stereotypes and unfounded fear. That goal does not suggest that real problems or well founded fear should be set at nought. It is this aspect of protective policy which has led to the US limitation by reference to the essential functions of the job, language closely aligned with that of the Australian provision in s 15(4) with which we are concerned.
Similarly Canada. In the decision of the Federal Court of Appeal in Canadian Human Rights Commission v Canadian Armed Forces (Husband), consideration was given to an important series of decisions of the Supreme Court of Canada and other appellate decisions stemming from the decision of the Supreme Court in Ontario Human Rights Commission v Borough of Etobicoke (1982) 132 DLR (3d) 14. The Canadian provision corresponding to s 15(4) excepts a "bona fide occupational requirement" (often called a BFOR). Apart from the honesty implicit in bona fides, such a requirement, the Court held in Etobicoke (at 20), "must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public." It will be seen that safety is there related to the requirements of the job. So, too, in another case in the series of appellate decisions, Canadian Pacific Ltd v Canadian Human Rights Commission (the Mahon case) [1988] 1 FC 209 at 221-222, Pratte J, upholding a decision relating to insulin dependent diabetics in general, said:
"Once it had been found that the applicant's policy not to employ insulin dependent diabetics as trackmen was reasonably necessary to eliminate a real risk of serious damage for the applicant, its employees and the public, there was only one decision that the Tribunal could legally make, namely, that the applicant's refusal to engage the respondent Wayne Mahon was based on a bona fide occupational requirement and, as a consequence, was not a discriminatory practice."
This passage was relied upon by Isaac CJ (with whom McDonald JA agreed) in Husband at 209, where the Canadian Armed Forces had rejected, on the ground of defective eyesight, a recruit desirous of serving as an army musician. See also Attorney General of Canada v Robinson at 239, where the Court was able to justify a policy requiring service personnel to be free of epilepsy.
The dissenting judgment of Robertson JA in Husband contains some valuable observations. The judge said (at 224), with reference to the example of an airline attempting to exclude pilots with heart conditions:
"The decision-maker's assessment of whether coronary fitness constitutes a BFOR will require an evaluation of the risk of employee failure against its potentially devastating consequences and, more generally, the balancing of human rights objectives against the legitimate interests and expectations of the public."