Commonwealth of Australia v The Human Rights & Equal Opportunity Commission & Anor [1998] FCA 3

Disability Discrimination Act 1992, ss 3, 4(1), 5, 12(1),(5),(8), 14, 15(2)(c), 15(4), 22, 28, 48, 53, 67(1)(l), 79 Defence Act 1903, ss 31, 32, 36, 45, 50C Australian Military Regulations, reg 135 Industrial Relations Act 1988, s 170DF Acts Interpretation Act 1901, s 15A Human Rights and Equal Opportunity Commission Act 1986, s 11(1)(o)

The Commonwealth v Quince (1944) 68 CLR 227, referred to Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237, referred to Groves v The Commonwealth of Australia (1982) 150 CLR 113, referred to Canadian Human Rights Commission v Canadian Armed Forces (Husband) (1994) 3 FC 188, discussed Attorney General of Canada v Robinson (1994) 3 FC 228, referred to Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76, reversed Conway v Repatriation Commission (1988) 16 ALD 770, applied Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited (1994) 49 FCR 250, applied Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, applied Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147 ALR 608, applied Stovin v Wise [1996] AC 923, referred to IW v City of Perth (1997) 146 ALR 696, applied Burnet, Commissioner of Internal Revenue v Guggenheim (1933) 288 US 280, followed Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607, referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, applied Everard v Poppleton (1843) 5 QB 181; 114 ER 1217, referred to Southeastern Community College v Davis (1979) 442 US 397, discussed Alexander, Governor of Tennessee v Choate (1985) 469 US 287, discussed School Board of Nassau County, Florida v Arline (1987) 480 US 273,discussed Ontario Human Rights Commission v Borough of Etobicoke (1982) 132 DLR (3d) 14, discussed Canadian Pacific Ltd v Canadian Human Rights Commission (the Mahon case)[1988] 1 FC 209, discussed The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, referred to Christie v Qantas Airways Ltd (1996) 138 ALR 19, distinguished Christie v Qantas Airways Limited (1995) 60 IR 17, referred to Jamal v Secretary, Department of Health 1988) 14 NSWLR 252, referred to Chesterman v Federal Commissioner of Taxation [1926] AC 128, applied Inland Revenue Commissioners v Scott [1892] 2 QB 152, applied Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern Ireland [1964] 1 WLR 912, applied Ashfield Municipal Council v Joyce [1978] AC 122, applied Salvation Army (Victoria) Property Trust v President, Councillors and Ratepayers of the Shire of Fern Tree Gully (1952) 85 CLR 159, applied Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, referred to Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, followed Hayes v Commissioner of Taxation (1956) 96 CLR 47, referred to Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467, referred to R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7, referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, referred to Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, referred to The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, applied Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127, referred to Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, referred to Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, referred to Shaw Saville & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, referred to Mulcahy v Ministry of Defence [1996] QB 732, referred to Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 67 ALR 545, referred to Kerr v Verran (1989) 88 ALR 125, referred to BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246, referred to Waters v Public Transport Commission (1991) 173 CLR 349, referred to Attorney-General of Canada v Thwaites & Canadian Human Rights Commission [1994] 3 FC 38, referred to

COMMONWEALTH OF AUSTRALIA v THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND "X" QG 197 of 1996 Burchett, Drummond and Mansfield JJ Brisbane 13 January 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

JUDGES: BURCHETT, DRUMMOND AND MANSFIELD JJ

THE COURT ORDERS THAT: 1. The appeal be allowed and the judgment and orders appealed from be set aside. 2. The decision of the first respondent made on 29 June 1995 herein be set aside and the matter remitted to the first respondent differently constituted for further consideration and determination in accordance with the reasons of the Court. 3. The first and second respondents pay the appellant's costs of and incidental to the proceedings before the learned primary judge and of and incidental to this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

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."

He elaborated (at 225): "Finally, how serious is the potential harm arising from employee failure? There is a substantial difference between serious risk of harm (a broken arm) and a risk of serious harm (death). In my view, it would be irresponsible to sweep aside briskly the impact of employee failure on its potential victims. Tribunals and human rights commissions should not, as a matter of conscience or law, be permitted to shelter behind immunity from judicial review for results which in another context might well attract civil liability. The laudable pursuit of human rights cannot be exercised responsibly in a vacuum." To an Australian lawyer, these observations immediately recall The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-48. While the majority in Husband rejected the idea of a balancing exercise once a real risk of serious damage was shown, the proposition that the seriousness of the threatened consequence is relevant to whether the risk is in a practical sense to be regarded as real could hardly be denied. It is, of course, applicable to the facts of the present case. We were not referred to any authoritative exposition of s 15(4) of the Disability Discrimination Act. Christie v Qantas Airways Ltd (1996) 138 ALR 19, to which we were referred, is clearly distinguishable. Section 170DF of the Industrial Relations Act (see 27) is concerned with a particular employment - and Gray J relied (at 32) on a "distinction between an inherent requirement and one imposed by a term of the contract of employment". This is a distinction which he conceded "is not always clear", but more importantly for present purposes it cannot control the operation of s 15(4) of the Disability Discrimination Act 1992, which applies to cases where there is no contract of employment, as well as to cases where there is such a contract. The construction of s 15(4) demands a different approach from that taken by Gray J in Christie. It must look, not to inherent requirements as contrasted with contractual requirements, but to inherent requirements, being matters essentially bound up with the nature of the employment, as contrasted with matters stemming, not from the nature of the employment, but rather from a view about the disability itself. Marshall J (at 39-40) applied the decision of the Commissioner which is in question in the present appeal, and accepted it so completely that he regarded "practicability of reinstatement" (really impracticability), on the very ground which Qantas relied on to show inability to meet the inherent requirements of the position, as going only to the nature of the remedy to be awarded, that is, presumably, as suggesting the appropriateness of compensation instead of reinstatement because the job could not be done by Mr Christie. Reference should be made to the decision at first instance (Christie v Qantas Airways Limited (1995) 60 IR 17) at 54, where it is indicated that, if reinstated, Mr Christie would be able to fly legally, at most, to three destinations in the Qantas network of flights. On the facts, an application of the majority's view to the army would mean that a recruit suffering a phobia that prevented his serving in any but three limited areas where conflict might erupt would have to be regarded as able to fulfil the inherent requirements of service! Cf Jamal v Secretary, Department of Health (1988) 14 NSWLR 252. Counsel for X submitted that s 15(4) should be limited by reference to s 48, which provides: "This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if: (a) the person's disability is an infectious disease; and (b) the discrimination is reasonably necessary to protect public health." The argument was that the subject of exemption for infectious diseases is wholly covered by s 48. But this assumes that infection is always a matter of public health. That is simply not so, as is shown by an example that was discussed at the hearing. An actor may be employed for a particular play involving a scene where he must repeatedly kiss one of the actresses. It might well be thought that public health would not be involved, but if the actor were tuberculous, the actress's health would be. In my view, an inherent requirement of that employment would relate to the ability to kiss safely. After all, the disabilities to which s 15 refers include infectious diseases, so why should not s 15(4) embrace matters falling within its terms which are consequences of infectious diseases? The method of construction which would read one exemption down because of an overlap with another exemption has been deprecated by Courts of the highest authority. In Chesterman v Federal Commissioner of Taxation [1926] AC 128 at 132 Lord Wrenbury commented on an argument from overlapping: "As Lord Herschell said in Inland Revenue Commissioners v Scott [1892] 2 QB 152, 165, little weight is to be attached to the mere fact that specific exemptions are found which would be covered by the wider general word." In Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern Ireland [1964] 1 WLR 912 at 924, Viscount Radcliffe said: "I do not think it right to read 'charitable purposes' in the proviso as ... not covering educational purposes at all, because education of the poor has been specifically mentioned earlier. ... Generally speaking, it seems to me a mistake to import restrictions into general words by implications of that kind." See also the observations of Lord Wilberforce in Ashfield Municipal Council v Joyce [1978] AC 122 at 136-137, and the comments of Dixon, Williams and Webb JJ in Salvation Army (Victoria) Property Trust v President, Councillors and Ratepayers of the Shire of Fern Tree Gully (1952) 85 CLR 159 at 174-175 suggesting that arguments from redundancy and tautology provided "rather slight grounds" for departing from the construction a legislative provision would otherwise have received. It is, of course, a possible view that there is no overlap between s 48 and so much of s 15(4) as may be concerned with the safety from infection of fellow employees. The draftsman may have thought, as perhaps the Commonwealth did at the time of the hearing before the Commissioner, that fellow employees are not to be regarded as members of the public. But I do not decide this case on that basis. It seems to me that, even if fellow employees are not themselves relevantly the public (the significance of the word "relevantly", in this context, may be illustrated by reference to the authorities discussed in Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 at 115-120), which I do not accept, their friends and families, to whom any infection could, quite obviously, spread, would be members of the public. Another section which could have an application overlapping with both s 15(4) and s 48, thus emphasizing the inconclusiveness of legislative tautologies of this kind, is s 53, making specific provision regarding military combat service and related duties, presumably including training. But the operation of this section depends on the promulgation of regulations which were not promulgated until after the events that gave rise to the present case. Accordingly, s 53 has no direct impact here. It is time to draw some of the threads together. The Commissioner accepted that a soldier's employment involves "that the soldier may or may not be deployed to a specific location". He accepted the reality of the risk of infection in combat and training asserted by the appellant, adding only that its measure "will vary with the circumstances". But he then reasoned that "the very same risk" is run by process workers whose workmate has an HIV infection, that "[t]he only distinguishing feature" of this case is the inherent requirements claimed for employment as a soldier, and that a construction of s 15(4) as including a reference to military requirements on the basis that they are inherent in military service would be "unfair" when there is no similar protection offered to process workers. So he adopted the "narrow and restrictive" view of inherent requirements previously stated. In my opinion, this reasoning has only to be laid out in clear terms to be seen as unacceptable. The soldier's position is not the same as the process worker's. No one is shooting or throwing grenades at the process worker as an incident of his work, bombing him, laying anti-personnel mines where he will walk, or otherwise deliberately seeking to kill him, and serious wounds are not a likely consequence of anything he does. Nor does he train with lethal weapons to take part in intrinsically dangerous activities. If he sustains an accidental injury - which will not be by an attack on him - he may be near a first aid room with qualified nursing staff. At the least, ambulance and medical facilities will be within easy reach. Of course, while the Commissioner's generalisation cannot be sustained, that is not to say that there will not be some civilian employments in relation to which s 15(4) will have application in the case of an employee infected with HIV. Such cases - and here I respectfully disagree with the judge at first instance - will not be identified by or limited to the scope of the employer's common law duty of care, which s 15 of the Disability Discrimination Act does not mention; their definition is to be found in the language of s 15(4) itself. As I have said, in my opinion the inherent requirements of an employment, arising essentially out of its nature, will frequently involve an interaction with other employees. Here, the Commissioner accepted evidence of the deployability of a soldier, and of the risks to which his HIV infection would expose his comrades. Those risks were not discounted as negligible, and the consequences of their realization would admittedly be of the gravest kind. Once the Commissioner's narrow construction of s 15(4) is rejected in favour of the broader view I have adopted, which is consistent with the views of the law taken under similar provisions in the United States and Canada, the Commissioner's findings leave no basis for the decision he reached. On those findings, the only conclusion open is that the issue raised by s 15(4)(a) has been established. Cf the Mahon case, ubi supra; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 84, per Lockhart J, and at 86-87, per Sheppard J, who referred to the well known statement of Fullagar J in Hayes v Commissioner of Taxation (1956) 96 CLR 47 at 51, as to which see also Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 471-474, per Burchett J; and the passage from the judgment of Nolan J (as he then was) in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7 at 12-13 which may be found quoted in the judgment of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 449-450. Beaumont J, in Randhawa at 450, drew attention to the approval given to the reasoning of Nolan J in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 431, per McHugh J (with whom Mason CJ expressed agreement). Nolan J, in the circumstances found, held that, "as a matter of law", the applicant was a refugee. Similarly, I hold as a matter of law, in the circumstances found here, s 15(4)(a) applies. Section 15(4)(b) can have no application to those circumstances. Accordingly, the appeal should be allowed with costs; the orders made at first instance should be set aside; and in lieu thereof, it should be ordered, with costs, that the decision of the Commissioner be set aside. Since it was not open to the Commissioner on his findings to decide in favour of X, the Court should in this case, as in Commonwealth of Australia v Human Rights and Equal Opportunity Commission, make no order referring the matter back to the Commissioner or another Commissioner. It remains to notice a matter which arose as a preliminary point at the hearing of the appeal. At the hearing of the appeal, written submissions (although they were not elaborated orally) were presented on behalf of the respondent Commission. Counsel for the Commonwealth objected that the pronouncement of the High Court in The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 (and see, arguendo, 17) was flouted by the course so taken. In that case, in the joint judgment of Gibbs, Stephen, Mason, Aickin and Wilson JJ, it was said (at 35-36): "In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal." That passage, which was concerned (as appears at 17) with a procedural argument, was applied to the Human Rights and Equal Opportunity Commission, and its adoption of what was described as an "adversarial role" was deprecated, in Commonwealth of Australia v Human Rights and Equal Opportunity Commission at 84-85, per Lockhart J, with whom, on this point, Sheppard J (at 87) expressed his "entire agreement". I can see nothing in the general provision made by s 67(1)(l) for intervention by the Commission, with the leave of the Court, "in proceedings that involve issues of discrimination on the ground of disability", nor in the general power conferred by s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986, which affects the application of the strictures contained in the authorities cited where the Commission is a party to proceedings for judicial review of its own decision, or of the decision of a Commissioner. These strictures cannot be distinguished in the present case. Rather, it illustrates them. For, plainly, a possible outcome was a rehearing or further hearing before the Commissioner, or another member of the Commission. How could the matter then proceed to be, and be seen to be, dispassionately determined? The Commission had chosen, without any necessity (for X was capably represented), to descend into the arena and contend on an issue of substance as a partisan. In my opinion, it is very important, if parties are to retain confidence in the integrity of the Commission's decisions, that it refrain from a role which risks bringing its impartiality into question. If I had thought outstanding issues of fact remained to be decided in this case, I would not, in the circumstances, have considered it appropriate to compel the appellant to accept a referral back to the Commissioner. That is the consequence of ignoring Ex parte Hardiman. In those rare cases where no party can represent one side of an issue which the Commission would wish to see put, the course mentioned in Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 130 and in the later decision Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 168, 171 of joining the Commonwealth, so that it can put an appropriate submission, may be available. That course was not available here, the Commonwealth being already an active party, but it was also unnecessary, since, as I have said, X was capably represented. In my opinion, the Court should mark the reality of the way the appeal was argued, and also its disapproval of the Commission's role in it, by making an order in respect of the costs of the appeal against both respondents, and not merely against the respondent X. Costs were ordered against the Commission in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (at 85, 87, 99). I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

on appeal from a judge of the federal court of australia

AND: THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

I have had the advantage of reading in draft the reasons Burchett and Mansfield JJ give for concluding that the Commissioner's interpretation of s 15(4)(a) the Disability Discrimination Act 1992 (Cth) is incorrect and that the decision of the learned primary judge is also erroneous. I agree with their Honours' reasons and conclusions. I add the following observations.

Section 15(4)(a) in terms operates by reference to the particular employment that is of immediate concern. It is directed to certain of the requirements that the worker in the particular position will have to fulfil in order to perform the actual tasks confided to him or her. The sub-section cannot be read as operating only by reference to the range of requirements that are common to a particular class or type of employment offered by various employers. The phrase "the inherent requirements of the particular employment" in s 15(4)(a) therefore comprehends not only capacity to perform the physical and mental operations required to carry out the duties of the particular position considered in isolation from the setting in which those operations have to be performed, but also the ability to perform those operations in the actual environment in which the employee must carry them out.

The exemption created by s 15(4)(a) from the prohibitions imposed by s 15(1)(b) and (2)(c) is limited in its reach by the word "inherent": it follows that not every requirement that a particular employer chooses to impose in respect of a particular employment will be relevant in determining whether a particular disabled person is unable to meet the inherent requirements of the job. But if the environment in which the employee must work and the impact that environment has on what an employee must be able to do to discharge his or her duties is ignored in the course of seeking to identify the inherent requirements of the particular employment, the result would be to give a significance to the word "inherent" that would override entirely the emphasis of the sub-section on the particular case. To describe the legislation, correctly, as remedial does not justify such a construction. The objects of the legislation, stated in s 3(a) and (b), are not to eliminate all discrimination in employment against disabled persons, but the more limited objectives of eliminating such discrimination "as far as possible" and of ensuring "as far as practicable" equal treatment before the law of all persons, disabled or not. The legislation in this respect differs from Article 2 of the Convention Concerning Discrimination in respect of Employment and Occupation, whose objective is "eliminating any discrimination in respect" of employment and occupation. This difference, deliberately adopted by the Parliament, cannot be ignored in interpreting the provisions of the Act, whatever be the proper role of the Convention as an aid to interpretation of the Act. See Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38. There is no justification for reading the prohibitions in s 15(1) and (2) as intended to bring about a restructuring of the way employers choose to operate their businesses so as to eliminate all workplace discrimination against disabled persons.

The Commission submitted that the term "inherent" should be given its dictionary meaning of "intrinsic" or "essential". Even if this is accepted, it does little to resolve the question of the proper construction of the sub-section once it is recognised that the provision focuses on the particular case, rather than on what might be said to be the essential aspects of a category of employment looked at in isolation from the differing settings in which each job in that category actually has to be performed. It follows from the necessity to focus on the particular employment when seeking to apply s 15(4)(a) that the sub-section cannot be read as drawing a dichotomy between the inherent requirements of a job and the employer's operational requirements for that job. Section 15 deals with employments offered by employers, ie, with work activities that form part of each employer's business or organisational operation. The word "inherent" in s 15(4)(a), in my opinion, limits the exemption created by the sub-section to those requirements of a particular position the satisfaction or fulfilment of which will directly, as opposed to remotely, further or aid in the furthering of the particular employer's operations. A requirement can, in my opinion, have the quality of being an inherent one even though that is a reflection of the business structure which the employer has elected to adopt. An employer will, by reason of s 15(4)(a), have a fairly wide area of freedom in which it will be able to impose requirements that are directly related to the implementation or conduct of its chosen method of carrying on its business without infringing s 15(1)(b) or (2)(c). Such an approach to the sub-section is, in my opinion, justified by s 15(4)(b), a provision which places a control, for the benefit of disabled persons, on the freedom of employers to arrange their operations in the way they consider appropriate. An employer may adopt a particular organisational structure which results in a requirement for a particular job that qualifies as an inherent one for that job. But the employer will still not escape infringing the prohibitions in s 15(1)(b) and (2)(c) even though that requirement discriminates against a worker with a disability, if the balancing exercise called for by s 15(4)(b) is adverse to him. The more idiosyncratic an inherent requirement imposed by the employer is, the more likely it will be that s 15(4)(b) will operate to deny the employer exemption from the prohibitions in s 15(1) and (2). It is the absence in s 170DF the Industrial Relations Act 1988 (Cth) of any provision comparable to s 15(4)(b) the Disability Discrimination Act that makes the former materially different from the latter; for that reason alone, the decision in Christie v Qantas Airways Limited (1996) 138 ALR 19, in which the majority adopted a very narrow construction of the phrase "the inherent requirements of the particular position" in s 170DF, has little relevance to the proper construction of s 15(4)(a) the Disability Discrimination Act.

The context in which the expression "the inherent requirements of the particular employment" appears requires account to be taken of four matters personal to the particular employee or applicant for employment in determining whether that person is, because of his or her disability, unable to carry out the requisite requirements of the employment. But the sub-section also requires attention to be paid to "all other relevant factors that it is reasonable to take into account". These words are so wide that s 15(4)(a) cannot be read as confining attention, in determining whether the particular employee or applicant is unable to carry out the inherent requirements of the particular employment, to matters personal to that employee or applicant. Cf The King v Regos & Morgan (1947) 74 CLR 613 at 624-625.

It will, in each case, be a question of fact just what are the boundaries of the environment in which the employee must perform the physical and mental operations required to carry out the duties of the position by reference to which the inherent requirements of a particular employment must be identified. It is difficult to envisage a case in which it will not be relevant to have regard to the physical setting in which an employee has to work, in order to identify the full range of inherent requirements of the particular employment. As Burchett J points out, performance of the physical and mental operations involved in discharging an employee's duties will often involve interaction with other workers and with members of the public, so that it will frequently also be necessary to have regard to the social setting in which an employee has to work to identify the entire range of those requirements of his or her employment. The relevant environment may also include the regulatory setting in which the employer carries on its business, at least in so far as that imposes constraints on how the employer conducts its operations.

Since it will often be necessary to have regard to the social setting in which an employee will have to work in order to identify all the inherent requirements of that worker's employment, it will often also be relevant to take into account the content of the various duties of care that the law of negligence may impose, in the particular case, on the worker and the employer. But the need to have regard, in a particular case, to such duties of care is only one of the consequences that flow from the need to take into account the social setting in which the particular job has to be done: contrary to the view of the learned primary judge, there is nothing in s 15(4)(a), in the context in which it is found, that justifies ascribing to the law of negligence any exhaustive role in marking out the inherent requirements of a particular employment.

This case is concerned with the inherent requirements of a soldier's employment. The law of negligence has a limited impact on the environment in which a soldier carries out his duties. Although duties of care apply to and in respect of soldiers in non-combat situations, "the civil law of negligence cannot attach to active [military] operations against the enemy": Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 362. See also Groves v The Commonwealth (1982) 150 CLR 113 at 117 and cf 125. In Mulcahy v Ministry of Defence [1996] QB 732, the Court of Appeal, in reliance on these and other decisions, held that the Ministry of Defence was under no duty, as a soldier's employer, to maintain a safe system of work for him in the battle conditions in which he was injured (p 750) and that, at common law, a soldier does not owe a duty of care to anyone when engaging the enemy in the course of hostilities (p 751). The soldier's trade is quite different from any civilian occupation (even that of policeman) in so far as a soldier can expect to encounter, in places often remote from medical facilities, organised military formations and individual assailants deliberately trying to kill or injure him. But even in the absence of any duty of care, the various settings in which a soldier may have to perform his duties may show it to be an inherent requirement of his employment as a soldier, given the risk of injury he faces in combat, that he should not, if injured, thereby put his comrades at risk of serious harm, ie, that he be free of any potentially fatal disorder transmissible to them by contact with his blood.

Because the Commissioner who was charged with the task of making all necessary findings of fact adopted too narrow a construction of s 15(4)(a), it was unnecessary for him to make any factual finding on whether it was an inherent requirement of X's employment as a soldier that he be able to "bleed safely". Contrary to what the learned primary judge had to say, this was an issue raised for the Commissioner's determination and, because of the peculiar incidents of a soldier's employment to which I have referred, it does not admit only of a conclusion adverse to the appellant. I agree with Mansfield J that, in these circumstances, the proper course is to remit the matter to the Commissioner for determination whether the appellant unlawfully discriminated against X by dismissing him from his employment as a member of the Australian Regular Army because of his HIV status. (I would add that this inquiry may require the appellant to explain why freedom from HIV should be accepted as an inherent requirement of a regular soldier's employment when it is apparently not such a requirement of a reservist's employment: the Australian Defence Force service policy relating to HIV applies only to "regular entrants", even though the oath a reservist takes under s 36(2) and s 50C the Defence Act 1903 (Cth) require reservists, when called out under s 50(1), to be as deployable as regulars and even though reservists may well have to engage in training that expose them to risks similar to those faced by regulars in their training.)

The Commission was not justified in taking the part it did in the hearing in this Court. I agree with what Mansfield J says about the role played by the Commission. It is the Commission itself that is named as first respondent in the review application that came before the learned primary judge and it was the Commission that appeared at the appeal hearing. (In various documents that have been filed in this Court, however, it is the Commissioner "in his capacity as a member of the Human Rights and Equal Opportunity Commission" who is named as the first respondent. This no doubt explains why, on 6 March 1997, a judge directed that the name of the first respondent to this appeal be changed to "The Human Rights and Equal Opportunity Commission".) I agree with Mansfield J's opinion as to the proper outcome of the appeal. The matter should be reheard by the Commission differently constituted in accordance with the general rule stated in Northern NSW F.M. Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39. In order to mark the inappropriateness of the role the Commission chose to take, I agree that it should pay the appellant's costs of the appeal.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

on appeal from a judge of the federal court of australia

AND: THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

REASONS FOR JUDGMENT MANSFIELD J: The point at issue on this appeal is a short but important one. The second respondent ("the complainant") from September 1991 was a member of the Army General Reserve ("the Reserve"). He decided to enlist as a permanent member of the Australian Defence Force ("the ADF"), and applied accordingly. That application was accepted and he transferred to the ADF on 23 November 1993. Up to the time of his acceptance into the ADF, he had served in the Reserve as a signaller in 1 Signals Regiment at Enoggera.

Prior to, but in anticipation of, his enlistment in the ADF, the complainant completed a medical history questionnaire on 4 May 1992 acknowledging that he would be tested for Human Immunodeficiency Virus ("HIV") and the Hepatitis B and C infections as part of a post entry medical check. Soon after his enlistment, and whilst he was undergoing the recruit training programme, that testing disclosed on 21 December 1993 that he was positive to HIV. On 24 December 1993 he was discharged from the ADF. The discharge was in accordance with the ADF Service Policy for the detection, prevention and administrative management of HIV, which so far as is relevant provides: "All regular entrants are to be tested as soon as possible after arrival at the initial training establishment. Applicants are to be informed before entry, that such testing will take place as part of the routine post entry medical check, and they are to be given the option to refuse and withdraw their application. As with newly inducted entrants in whom other potentially serious diseases have been detected, personnel with HIV infection are to be discharged." The complainant acknowledged that policy in writing when applying for enlistment. It was accepted in these proceedings that HIV is infectious and is transmissible by the exchange of bodily fluids including blood. It was also accepted that HIV infection usually leads to the onset of Acquired Immune Deficiency Syndrome ("AIDS"), which is ultimately a fatal illness. On 8 February 1994 the complainant made a complaint to the first respondent the Human Rights and Equal Opportunities Commission ("the Commission"), the entity designated under s 69 of the Disability Discrimination Act 1992 ("the DD Act") to receive and determine complaints alleging unlawful discrimination under that Act. His identity was, pursuant to an order made under s 87 of the DD Act, protected from disclosure. He asserted that his discharge from the ADF for having tested positive to HIV was unlawful discrimination. Pursuant to s 71 of the DD Act, the Honourable W J Carter QC in his capacity as a member of the Commission ("the Commissioner") conducted an inquiry into the complaint. On 29 June 1995, the Commissioner found that the complaint had been substantiated, and that the dismissal of the complainant from the ADF on the ground that he was HIV positive was unlawful. The appellant applied for an order of review of that decision under the Administrative Decisions (Judicial Review) Act 1977 and for other relief, including the issue of writs of mandamus and certiorari directed to the Commissioner pursuant to s 39B of the Judiciary Act 1903. On 31 October 1996, the Court dismissed that application. This is an appeal from that decision. The critical question upon the appeal is whether, in the circumstances, the discharge of the complainant by the ADF by reason of his HIV status amounted to discrimination in employment contrary to s 15 of the DD Act. Of course, the particular question is more refined than that, and it is necessary to turn to the terms of the legislation to consider it. THE LEGISLATION

The objects of the DD Act are contained in s 3 which provides: "(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community." The term "disability" is defined in s 4 of the DD Act. It was not contested that the complainant's HIV amounted to a disability as defined in s 4, which is in the following terms: " "disability", in relation to a person, means: (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future; or (k) is imputed to a person." Section 5 of the DD Act defines disability discrimination in the following terms: "5. (1)For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability." The section upon which this appeal turns is s 15 of the DD Act. It relevantly provides: "(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. . . . (4) 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." There is no issue that the enlistment of the complainant into the ADF by the appellant was by an employer to whom the Act relates: ss 12(5) and 14 of the DD Act. It was also accepted that the ADF had directly discriminated against the complainant on the ground of his disability by dismissing him, that is that s 15(2)(c) of the DD Act made that dismissal unlawful, unless it was protected by the provisions of subs (4). The focus of the issue before the Commissioner, before the Court upon judicial review of that decision, and on appeal, was therefore s 15 (4) of the DD Act. The appellant contended that the discrimination against the complainant was not unlawful because: · under s 15(4)(a), he would be unable to carry out the inherent requirements of the particular employment, because those inherent requirements involved being able to be deployed in combat and combat-related and like duties without the undue risk of transmission of HIV to other soldiers (or, as was more graphically put, with the ability to "bleed safely"), and alternatively because: · under s 15(4)(b), the services or facilities necessary to enable the complainant to carry out those requirements would impose an unjustifiable hardship on the appellant. The primary focus of the parties was appropriately upon what constituted the "inherent requirements" of the complainant's employment in the ADF, and in particular whether the complainant's acknowledged physical capacity to perform any duties required of him meant that he was able to carry out the inherent requirements of his employment, or on the other hand whether his HIV status was relevant to those inherent requirements so that the capacity to "bleed safely" was a relevant factor in that assessment. If it was relevant, then questions of fact as to its significance were necessarily also to be addressed. In short, the complainant asserts that his ineligibility to be deployed as required was not because he cannot carry out the inherent requirements of the employment, but because the ADF Service Policy imposed by the appellant only as a matter of policy and direction so provided. It is convenient at this point to refer to the other particular provisions of the DD Act to which emphasis was directed in the course of submissions. In the case of sporting injuries, s 28 prohibits discrimination on the ground of disability by excluding a person suffering a disability from a sporting activity unless the person is not reasonably capable of performing the activities involved. I set out below the detailed provision. Division 5 of Part 2 of the DD Act also has a number of general exemptions. Those exemptions include ones relating to infectious diseases, and to combat duties and peacekeeping services. Thus s 48 of the DD Act provides: "This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if:

(a) the person's disability is an infectious disease; and

(b) the discrimination is reasonably necessary to protect public health."

and s 53 provides : "(1) This part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability in connection with employment, engagement or appointment in the Defence Force: (a) in a position involving the performance of combat duties, combat-related duties or peacekeeping service; or (b) in prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service; or (c) in a position involving the performance of duties as a chaplain or a medical support person in support of forces engaged or likely to be engaged in combat duties, combat-related duties or peacekeeping service. (2) In this section: "combat duties" means such duties as are declared by the regulations to be combat duties for the purposes of this section; "combat-related duties" means such duties as are declared by the regulations to be combat-related duties for the purposes of this section; "medical support person" means: (a) a person exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease; or (b) a person exclusively engaged in the administration of medical units and establishments; "peacekeeping service" has the same meaning as in the Veterans' Entitlements Act 1986." At material times, there were no regulations in force declaring any duties to constitute "combat duties" or "combat-related duties" so that, in practical terms, that section did not provide to the appellant any exemption in the present circumstances. Regulations have since been made: Disability Discrimination Regulations, Statutory Rules 1996, No. 27. It should be noted that, although neither in s 48 nor elsewhere in the Act is there a definition of the term "infectious disease", it was accepted that HIV is an infectious disease. The appellant did not claim that that exemption was applicable to it in the circumstances. Nor did the appellant claim that the exemption provided for in s 53 of the Act was applicable to it in the circumstances. THE DECISIONS BELOW The reasons for the decisions of the Commissioner, and of the judge at first instance, were not ad idem. The Commissioner decided that the proper operation of s 15(4) was limited to the physical restrictions, if any, of the complainant in his ability to perform the inherent requirements of the employment. At material times, he was found to be physically capable of undertaking the activities required in the employment, albeit with the risk that circumstances might arise in which there might be the chance that co-employees or others might incur HIV infection by the exchange or transmission of bodily fluid from him to another or others. That risk was found not to fall within that contemplated by s 15(4) because it was not a consequence of the disability of the complainant, but a consequence of an externally imposed requirement of the appellant, based upon policy considerations, designed to reduce the risk of passing the HIV infection. The Commissioner identified the "inherent requirements" of the employment as a soldier for the purposes of s 15(4) of the Act as being the capacity to physically execute the tasks or skills for which that person is specifically prepared as a soldier, irrespective of location or deployment. He found that the only proper focus of s 15(4) of the DD Act was upon the physical ability or inability of a disabled person to perform the inherent requirements of the employment. Having so found, issues as to the application of s 15(4)(b) also did not arise. The learned judge at first instance addressed the statutory purpose of the legislation, spelled out in s 3 of the DD Act, including the role of s15(4) as follows: "The purpose of the exception contained in s 15(4) is clear; a person with a disability has no right to complain of discrimination on the ground of that disability in respect of a particular job where the person does not have the capacity to do the job because of the disability." As a corollary, where a disabled person has the capacity to do the work, the Act should operate to eliminate any requirement imposed by an employer which operates as discrimination against that person on the ground of that person's disability. His Honour observed, correctly, that it is not the purpose of s 15(4) to authorise or allow an employer to impose otherwise unlawful discriminatory requirements on, or conditions to, the obtaining or retaining of employment by making it an inherent requirement of the particular employment that the applicant or employee not be disabled. That observation did not itself identify, however, what constituted an inherent requirement of the particular employment. His Honour disagreed with the Commissioner when concluding that the general nature of the work to be performed must be assessed in the context of the common law duty of care owed by a worker to co-workers and others in a relationship of proximity to the worker when the work is performed. He gave the example of a lifeguard suffering from tuberculosis being unable to perform an inherent requirement of that employment, namely engaging in mouth to mouth contact, because such activity would carry with it unreasonably exposing some other person to risk of infection with tuberculosis. Thus he concluded that: "... ability or capacity to carry out inherent requirements of the particular employment means ability or capacity consistent with the discharge of the common law duty of care to avoid risk of loss or harm to others having regard to that person's past training, qualifications and experience relevant to the particular employment, the person's performance as an employee and all other relevant factors that it is reasonable to take into account"

and further: "The employer must show that the employee or applicant for employment cannot (with or without accommodation: s 15(4)(a) and s 15(4)(b)), because of his or her disability, perform the requirements of the particular employment which are truly necessary to ensure the adequate performance of the employment." Having regard to the provisions of the Defence Act 1903, in particular ss 36, 45(1) and 50C, his Honour found that the combined effect of the statutory provisions, the terms of the oath or affirmation of a soldier upon enlistment and the obligation of obedience, is that a soldier in the Australian Army is required to go anywhere and perform any lawful duties required of him or her by the Australian Army. That includes training, combat, combat-related and peacekeeping duties, as, when and where required by the Australian Army. The complainant had that physical capacity. His Honour then noted that there was no additional finding of fact made by the Commissioner: "... that it was an inherent requirement of employment as a soldier that he or she "bleed safely", so far as the risk of others including fellow soldiers of infection with HIV is concerned." To that point, therefore his Honour considered that considerations which were relevant to whether the complainant could perform or meet the inherent requirements of the DD Act included his capacity to perform the physical requirements consistent with the employer's common law duty of care to his co-employees and others, and he had concluded that the capacity to perform those duties safely in relation to employment in the ADF included such performance in the full range of combat and combat-related circumstances. However, his Honour then concluded that as a matter of fact that particular difficulty did not arise. He said: "The applicant did not seek such a finding. Nor sensibly could it have sought such a finding. Risk of injury in the workplace which may give rise to the bleeding or loss of bodily fluid, as a matter of theoretical possibility, exists in all employment situations. Someone may trip on a stair, fall and suffer an injury which bleeds and co-workers may run to offer assistance and come into contact with blood or bodily fluid. In this respect the soldier is in no different position to any other person in employment." Thus, the learned judge at first instance treated the Commissioner's characterisation of the inherent requirements of employment for the purposes of s 15(4) as being limited to the physical capacity to execute the tasks or skills of the particular employment as being too narrow. However, the wider characterisation of inherent requirements which he adopted, permitting regard to be had to safety considerations, did not, in the light of those factual observations, lead to a different result. It is that passage in his Honour's judgment with which the appellant disagrees. The appellant asserts that it did seek the appropriate finding, and that such finding was inevitable on the material before the Commissioner. Given his conclusion on the construction of s 15(4) of the DD Act, the Commissioner himself did not proceed to address that question. The complainant, for his part, contends that the proper construction of s 15(4) of the DD Act is limited in the way that the Commissioner found, and sought therefore to contend that the reasons of the judge at first instance were erroneous. The Commission itself was named as a respondent to the appeal as it had been before the judge at first instance. It did not appear when the matter was heard at first instance. It appeared by counsel on this appeal and sought to make submissions, in effect contending that proper construction of s 15(4) of the DD Act was as found by the Commissioner. It is appropriate to make some brief observations as to its proper role. THE ROLE OF THE COMMISSION ON THE APPEAL In The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ) observed (at 35-36): "There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal." As Brennan J explained in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682, the position is different where the proceedings before the tribunal in question are not inter partes and the Attorney-General cannot or does not intervene to represent the public interest, and where neither a law officer nor a public official is heard by the Court. In such cases it may be desirable that the tribunal should appear by counsel to make such submissions as may assist the Court and in an appropriate case to argue against the applicant's case. See also Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 67 ALR 545 per Dawson J at 551-552. Those circumstances do not apply here. The observations of the High Court in Hardiman (above) have been applied in this Court, for example, in Kerr v Verran (1989) 88 ALR 125 at 153 (per Beaumont J) and more recently in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629 at 639-640 per Lockhart J, with whom Sheppard J agreed at 641, and in Cairns Port Authority v Albietz [1995] 2 Qd.R 470. In this instance, no question of the powers and procedures of the Commission arises. There are adversarial parties, and no suggestion was made that the complainant was in any way impeded in the presentation of his case, including as to the proper construction of s 15(4) of the DD Act. The Commission recognised those considerations, but nevertheless sought to participate in the appeal to the extent of making submissions as to the proper construction of s 15 of the DD Act. Its written submission, which it did not seek to enhance by oral submissions, was so limited. It sought to restore the Commissioner's ruling as to the narrow construction of "inherent requirements", but treated the provisions of s 15(4)(b) more widely than counsel for the complainant. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246, the Full Court of this Court addressed the proper role of the Australian Securities Commission ("the ASC"), including when it might assume the role of an active party on an appeal to the Full Court. The appeal to the Full Court was brought from a decision of the Administrative Appeals Tribunal. Lockhart and Hill JJ (at 265) in a joint judgment approved the ASC's role in advancing arguments relating to the Court's jurisdiction and powers in such cases as those before the Court, and as to the proper construction of certain sections of the Corporations Law ("the Law"), and as to the powers of the ASC under certain sections of the Law. Their Honours noted that the ASC is a body with substantially different functions and powers to many other statutory bodies, including the Australian Broadcasting Tribunal the subject of the High Court's observations in Hardiman (above). Their Honours said: "The court expressed the view to counsel for the Commission that, where proceedings under the Law involve issues of a purely commercial nature and where the other parties are well able properly to adduce evidence and make submissions on all relevant facts to the court, the Commission should not assume the role of an active party and present substantive arguments with respect to those issues. The position is different where a commercial issue arises but is not fully or properly canvassed by the other parties. The position is also different where cases raise issues of national significance, questions of construction of the Law or the procedures the Commission should follow under the Law. Plainly the Commission has a vital role to play with respect to those questions. This is not intended to be an exhaustive statement of the circumstances in which the Commission should or should not assume the role of an active party ...". The Court was moved to make those observations having regard to the national significance of the ASC, its responsibility for the enforcement of the Law, and its entitlement to intervene in proceedings relating to a matter arising under the Law: s 1330 of the Law. Much the same might be said of the Commission established under the Human Rights and Equal Opportunity Commission Act 1986. Its functions and responsibilities are national and pervasive. It is specifically empowered, where it considers it appropriate, but with the leave of the Court, to intervene in proceedings that involve "human rights issues": s 11(1)(o) of that Act. It is, in my view, a question to be decided in the circumstances of each case and in the context of the legislation then under consideration. In the present circumstance, it is one possible outcome of this appeal that the matter be remitted to the Commission for consideration according to law (as determined by this Court). The role of the Commission, if its impartiality is to be preserved and to be seen to be preserved, must in those circumstances be a limited one. Its own powers and jurisdiction are not in issue. The construction of s 15 contended for by the complainant supports the initial construction of that section adopted by the Commissioner. It is undesirable for the Commission now to contend that that section has some further or different meaning. No reason or circumstance has been identified, or is apparent, as to why the complainant is in any way disadvantaged in presenting his submission. In my judgment, therefore, I do not think this is one of the exceptional cases to which the High Court in Hardiman referred, and I regard it as undesirable for the Commission to have presented the submissions which it did. However, it has done so, subject to the ruling of the Court. It is a named party to the appeal. It did so, however, only to the limited extent identified. There is no reason to think that it would not apply the law as determined by the Court should the matter be remitted to it. As no question of leave is involved, I do not think that the Court has any option but to entertain the submissions, whilst at the same time expressing its conclusions that it was undesirable for the reasons given for them to have been presented.

THE ISSUES The appellant contends that the "inherent requirements" of particular employment under s 15(4) of the DD Act can include both: (a) requirements as to the physical environment in which the work is to be performed, and (b) reasonable requirements imposed by the employer for the protection of the health and safety of fellow employees or others in such an environment and that, in the particular circumstances, (c) it was an inherent requirement of the complainant's employment in the ADF that he be deployable for combat or combat-related duties, and (d) the complainant was not so deployable because of his HIV because he posed an unreasonable risk to the health and safety of his fellow employees and others in such an environment. The complainant asserts that the "inherent requirements" of the DD Act should be confined to the essential physical requirements of the work, to reflect fully the purpose of the DD Act: s 15A(1), Acts Interpretation Act 1901; Waters v Public Transport Commission (1991) 173 CLR 349. Consistent with that proposition, he submits that issues of infection and public health are catered for separately in s 48 of the DD Act. Thus, as he was physically capable of doing such things as may be required of him even in combat, he meets the inherent requirements of the work. He categorises the appellant's requirement that he do so without unreasonable danger to his co-workers, because he could not "bleed safely", as an employer superimposed or external (non inherent) requirement of the position. In general, the complainant's submissions were also put on behalf of the Commission. The Commission stressed that the expression "all other relevant factors that it is reasonable to take into account" requires consideration of the employee's individual circumstances within the genus of past training, qualification, experience and past performance. It submitted that there is a clear line drawn between the inherent requirements of a particular position, and those which are the employer's 'operational requirements' to be assessed independently and separately as to how the work is performed, as distinct from the goals of the particular job. It made no submission as to the appellant's points (c) and (d) above. Thus, it contends, the proper construction of s 15(4) requires separate and compartmentalised assessments to be made of: · the assessment of the employee's individual circumstances, · the assessment of the inherent requirements of the particular employment, (subs (a)), and · the assessment of whether the employer's ability to accommodate the employee's particular disability would impose an unjustifiable hardship on the employer (subs (b)). In its submissions, it is only at the third step that the employer's ability to reasonably accommodate the employee's particular disability comes into play by modifying or adjusting the work practices or requirements, and only at that stage that considerations relating to an employer's obligations to provide a safe working environment can be considered and then only if the hardship of accommodating that obligation imposes unjustifiable hardship on the employer. REASONS AND CONCLUSION The question thus identified on the appeal essentially is one as to the proper construction of s 15(4) of the DD Act. It is of course axiomatic that it should be construed having regard to the objectives set out in s 3 of the DD Act, set out above. Reference was made to several decisions of Superior Courts in the United States and Canada on domestic legislation of those countries which, as the DD Act does, seek to give effect in certain ways within domestic law to the international treaties such as the Discrimination (Employment and Occupation) Convention 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958 and the International Covenant on Civil and Political Rights, set out respectively in Schedules 1 and 2 of the Human Rights and Equal Opportunity Commission Act 1986. Those decisions were the decisions of the Supreme Court of the United States in School Board of Nassau County v Arline (1987) 480 US 273; and of the Supreme Court of Canada in Canadian Human Rights Commission v Canadian Armed Forces and Husband [1994] 3 FC 188, Attorney General of Canada v Robinson and Canadian Human Rights Commission [1994] 3 FC 228 and Attorney General of Canada v Thwaites and Canadian Human Rights Commission [1994] 3 FC 38. It is convenient to refer to those decisions to assess their significance in resolution of the present question. Each necessarily involved consideration of domestic law provisions, and provisions which are in material respects different from the DD Act, in particular s 15(4). In Arline (above), a teacher had been discharged due to a relapse of the contagious disease tuberculosis. The Supreme Court of the United States by a majority found that the teacher was a 'handicapped individual' within s 504 of the Rehabilitation Act 1973 (US) and so could not be discriminated against solely by reason of her handicap. The section proscribed discrimination against an "otherwise qualified handicapped individual ... solely by reason of" that person's handicap. Much of the decision in fact concerned whether tuberculosis amounted to a handicap under the legislation. The majority opinion delivered by Brennan J included the following observation (at 282 fn 7): "This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act." On the second question, namely whether the teacher was "otherwise qualified" to work as a teacher, the majority considered as relevant the contagiousness of the disease. That is the question which approximates the issue before this Court. Importantly for present purposes, the majority observed (at 287): "Such an inquiry [as to whether the person was otherwise qualified to perform the work] is essential if s 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. The basic factors to be considered in conducting this inquiry are well established." (emphasis added) That inquiry, so the majority said, involved findings on medical evidence as to the nature of the risk to others (how the disease is transmitted), its duration, (how long the carrier is infectious), the severity of the risk (what is the potential harm to third parties) and the probabilities the disease will be transmitted. Ultimately, the Court referred the matter back to the primary court for determination of the necessary facts on that question. In Husband (above) an applicant for admission into the Canadian Armed Forces intending directly to work as a musician was rejected as her eyesight did not meet the minimum standard. On the evidence, the court by majority found that the relevant standard was that for "a soldier first and musician second", based upon the unique role assigned to the occupational group by the National Defence Act 1985 (Canada). The relevant consideration was whether, in the light of that ruling, the eyesight test imposed a "bona fide occupational requirement", a test described in Ontario Human Rights Commission v Borough of Etobicoke [1982] 1 SCR 202 at 202-203 (a case considering the legitimacy of imposing a mandatory retiring age) in the following terms: "To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it 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." (emphasis added)

That test, involving both subjective and objective elements, was reaffirmed in Husband. It was considerations relating to the safety of the employee, fellow employees and the general public, which led to the upholding of the decision that the direct discrimination was justified. The measure of risk in relation to safety considerations was one of "sufficiency". In Robinson (above), a flight engineer of many years service was diagnosed as having epilepsy and discharged, based upon the Canadian Armed Forces "seizure free" policy, even though he could have been assigned to certain clerical duties which he could have performed safely. Despite that capacity in the particular circumstances, as the "soldier first" condition required the capacity to engage in combat duty as and when required, the occupational requirement against that standard meant that the policy was sustainable. In Thwaites (above) an issue like the issue now before the Court arose. A master seaman of some years service was discharged from the Canadian Armed Forces because he was HIV positive. As here, it was acknowledged that there was by his discharge direct discrimination by reason of his disability, namely his HIV positive status. The issue was whether the requirement that he not have HIV was a "bona fide occupational requirement", under s 15(a) of the Human Rights Act 1985 (Canada). The decision of the Human Rights Tribunal under that Act was that it was not, on the facts, objectively necessary that the employment of Thwaites by the Canadian Armed Forces by reason of his HIV status be brought to an end. The facts were somewhat complex, but it is desirable to note them to determine the significance to the present issue of that decision. In March 1986 Thwaites was diagnosed as HIV positive, and the Canadian Armed Forces were so informed. He was not thereby or then discharged. One recommendation made in early 1987 was that he be released from his position due to his sexual orientation, but that was not proceeded with. During 1987, the Canadian Armed Forces authorities were kept informed as to his condition. In January 1988, as he was developing constitutional symptoms, he was admitted with others to an experimental drug program which required regular clinical follow up. In March 1988, medical review led to the recommendation that he be discharged because his need for specialist medical services for review rendered him unfit for his sea going service where there was no ready access to significant medical facilities. He himself remained healthy and able to work normally. The Canadian Armed Forces did not at the time have a policy similar to the ADF Service Policy referred to above; its policy on HIV was in evolution, but its interim guidelines provided for individualised assessment of HIV positive members. That fact, in itself, is sufficient to indicate that the decision is not directly of significance to the present appeal. Despite that, on 4 August 1988 the Canadian Armed Forces Career Medical Review Board ordered Thwaites' discharge. It was that decision which the Tribunal reversed. The appeal from the Tribunal's decision before Carter J in the trial division of the Supreme Court of Canada revolved around whether the Tribunal was in error in rejecting the contention that the direct discrimination against Thwaites was outside the legislative prohibition because it was based on a bona fide occupational requirement. That rejection was in turn based upon the decision that it was not made out that the restriction was "reasonably necessary" (to use, as the Tribunal did and as Carter J upheld, the expression in Etobicoke) to ensure the efficient and economical performance of the work without endangering the employer, his fellow employees and the general public. On the question of consideration for the safety of others, the Tribunal said that the employer must show a "a sufficient risk of employee failure" or a "significant risk standard", so that mere circumstances of heightened risk may nevertheless be within acceptable limits. The Court concluded that the Tribunal had not erred in law in approaching the matter as it did, and had correctly applied the "reasonably necessary" standard to the review of the bona fide occupational requirement. The conclusion of the Tribunal that, as a matter of fact on the evidence, the Canadian Armed Forces had failed to establish the objective necessity of that requirement was available to it, and on appeal was therefore sustained. The Court found it unnecessary to determine whether individual assessment is required as an element of the "reasonably necessary" standard for the bona fide occupational requirement defence. That was because, in any event, the Canadian Armed Forces had conducted an individual assessment and had relied upon that assessment (see at 64). Once reliance was placed upon individual assessment, the Tribunal was entitled to examine it. Both the Tribunal and the Court recognised that considerations as to the safety of others may be relevant to identifying a bona fide occupational requirement. I have referred at some length to the particular circumstances of that case to indicate that not only was it based upon a different legislative structure, but also upon an individual assessment of Thwaites by the Canadian Armed Forces at a point in time when there was no general policy as reflected in the ADF Service Policy referred to above, and when Thwaites had been retained in service for some significant time after his HIV status was diagnosed. I do not think that, for those reasons, the decision which superficially bears some resemblance to the facts of this matter in the sense that it involved a soldier suffering from HIV, really throws any directly relevant light on the issues now before the Court. The four decisions referred to are also obviously upon legislative expressions different from the DD Act. They are therefore of limited assistance. What is apparent from them is that, in determining what are the essential elements of a particular employment (I choose a general expression to encompass the different legislative expressions used), it is proper to have regard to considerations of the safety and welfare of co-employees and others. As Burchett J graphically put in the course of argument, it would seem unrealistic to say that a person suffering from chronic infectious disease, which would in all likelihood be transmitted to consumers, could perform the inherent requirements of work involving food handling just because that work could physically be performed by that person when it was inevitable that the infection would be passed on to consumers. A provision somewhat similar to s 15(4) arose for consideration in Christie v Qantas Airways Ltd (1996) 138 ALR 19, an appeal to the Full Court of the Industrial Relations Court of Australia from Wilcox CJ. The Chief Justice's decision is reported at (1995) 60 IR 17. Section 170DF(1) of the Industrial Relations Act 1988 relevantly provided: "An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) ... (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (g) ..." Subsection (2) provides a defence to a claim under s 170DF(1)(f): "Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position." The issue, for present purposes, was whether it was an 'inherent requirement' of the appellant's particular employment that he be aged less than sixty years. He was an international pilot, whose employment was found to have been terminated because of his age. Most countries to which Qantas flights travelled adhered to international rules by which aircraft with pilots of sixty or more years of age could be refused entry into their territory. The appellant was prepared to fly only to other countries which did not adhere to those rules, but to accommodate such a proposal the employer would have had to radically alter the bidding and rostering system by which it allocated flights among its pilots. Wilcox CJ (at 28) indicated that: "... the question whether a particular requirement is an inherent requirement of a particular position is a matter to be determined objectively. It does not depend upon the attitude or operational methods of the particular employer. ... the word "inherent" refers to a requirement that is fundamental, intrinsic or essential to the position, not something that is truly unnecessary, although insisted upon by a particular employer." The case is not of great significance for present purposes. Medical fitness was accepted by all parties as an inherent requirement of the position, and it is apparent that that expression was used in a wider sense than simply the physical capacity to fly but also to ensure that the employment could be performed safely. It almost assumes, although it was not explicitly said, that the ability to perform the tasks without unreasonable risk of injury to oneself or to others is an inherent requirement of the position. What was in issue was whether compulsory retirement at age sixty was, because of the perception that older pilots are more likely to be involved in an aircraft accident (the medical issue), or because of the policies of most foreign countries (the operational issue), an inherent requirement of an international pilot's position. The dispute was therefore not so much as to the meaning of the expression "inherent requirements of the particular position" as to its application. After reviewing the extensive material before him, Wilcox CJ concluded (at 53) that "... looking at the question in a practical, commonsense way ..." it was not a necessary qualification that, on medical grounds, there be mandatory retirement at age sixty, but that the allocation of flights to the appellant was not "merely a matter of administrative convenience" but went "to the heart of the system of aircrew scheduling" (at 56). That conclusion, on the evidence, resulted in the termination not being unlawful. Both the initial contract of employment, and the International Air Pilots' Agreement 1986 under which the appellant worked at the time of his termination, required that he be available to fly anywhere in the world. It was an inherent requirement of his particular position. That decision was reversed by the Full Court (Gray and Marshall JJ, Spender J dissenting). The judgment of Gray J (at 30-32) illustrates that the critical question to his Honour was the proper characterisation of the 'particular position', and that that question often involved "matters of impression". His Honour observed (at 32): "That policy (underlying s 170DF) would be undone completely if an employer could arrange the terms of the contract, or its operating systems, so as to permit it to terminate the employment of employees on those prohibited grounds" in reaching the view that it was not an inherent requirement of the particular position that the appellant be less than sixty years old. Marshall J's reasons were to the same effect; the geographical inhibition on where he could perform the tasks of a pilot meant only that there were difficulties relevant to "practicability of reinstatement as a remedy" (at 40). The decision in that case is not, in my view, of direct assistance in the present appeal except that it recognises that the identification of "inherent requirements" is a question of fact on all the evidence, and is often a matter of impression. It assumed that safety considerations were relevant to determine what the inherent requirements of the particular position were. I return then to the words of s 15 of the DD Act, recognising that they should be construed to give effect to the objects expressed in s 3 of the DD Act, and that those objects are: "... of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose." Waters v Public Transport Corporation (1991-1992) 173 CLR 349 per Mason CJ and Gaudron J at 359. The critical question is as to what is encompassed within the term "the inherent requirements" of the particular employment. Plainly enough, that calls for the proper identification of the particular employment: see Christie (above). In the present matter, it was found that that employment was as "soldier first" with the obligation to be available to be deployed on combat and combat-related duties, and to undertake the training necessary to be prepared to meet that obligation. That conclusion is readily available to be drawn. The Defence Act 1903 recognises that the ADF is divided into three arms, namely the Australian Navy, the Australian Army, and the Australian Air Force (s 30) and that the Australian Army consists only of two parts: the permanent force and the reserve ( s 31). Section 32B empowers the secondment of a member of the ADF from one arm to another. Although a person may volunteer to serve as a soldier in a particular part of the Army (apparently a reference to the parts of the Army identified in s 31), ss 36(2) and (3) then provide: "(2) If accepted for service in that part of the Army, the person shall take and subscribe, as prescribed, an oath or affirmation in the appropriate prescribed form. (3) The taking and subscribing of the oath or affirmation: (a) constitutes the enlistment of the person in that part of the Army for that period or until attaining retiring age, as the case may be; and (b) binds the person to serve in the Army in accordance with the tenor of the oath or affirmation." The oath or affirmation is that prescribed in Pts I and II of the Sch to the Australian Military Regulations: Reg 135. The oath, which the affirmation parallels, requires that the enlistee promise to: "... well and truly serve her Majesty Queen Elizabeth the Second her heirs and successors according to law as a soldier in the Australian Regular Army for the period of [ .. ] years or until my service is sooner lawfully terminated, that I will resist her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law." As the learned judge at first instance said, and reflecting findings also made by the Commissioner, the combined effect of the statutory provisions, the terms of the oath or affirmation and the obligation of obedience, is that: "a soldier in (the ADF) is required to go anywhere and to perform any lawful duties required of him or her ... This includes training, combat, combat-related and peace-keeping duties, as, when and where required by (the ADF)." That is the scope of the particular employment. Its inherent characteristics obviously include the physical capacity to perform those functions. The one point of departure in the submissions is whether the inherent characteristics require that they be capable of being performed safely, whether from the viewpoint of the soldier, fellow employees, or others. In my view, safety considerations may be relevant to the capacity to carry out the inherent requirements of particular employment. Each of the cases to which reference is made above, including Christie (above), either explicitly or implicitly recognise that proposition. It is easy to conjure examples to illustrate the common sense of such a proposition. A person employed to work at heights on scaffolding, or as a dogman, might well be able to physically perform that work generally but not if that person were prone to epileptic seizures. A pilot particularly vulnerable to such seizures, or with a known significant propensity to heart attack, is in a similar category. A visually impaired person, though physically capable of performing by rote the feeding of material into a press, clearly should not do so. A person vulnerable to asthma would not be fit to work in an environment which significantly exposed that person to a risk of a serious asthma attack, more particularly so where first aid or other assistance might not readily be at hand. Such examples can be readily multiplied. Such examples involve considerations that a person may not be able to perform the inherent requirements of particular employment for safety reasons, whether peculiar to that person or to others, and often both. There is no logical reason to confine such considerations to the safety only of the particular employee. Nor is it apparent that there is a clear line between physical capacity on the one hand and safety on the other; often the physical incapacity in a practical sense will be disclosed by reason of safety considerations. The contention that it is only the essential physical activities required in the employment which can identify its inherent characteristics is somewhat artificial. Once the essential tasks involved in a particular employment are identified, and there will inevitably be issues of fact as to whether a particular task is or is not one essential to the inherent requirements of that employment, or whether it is but a product of an employer's operational systems or procedures or organisational requirements, then the "physical capacity" to perform those tasks is one to be assessed against the particular individual's intellectual and physical characteristics and propensities. Within the range of matters which the expression encompasses is the capacity to do the tasks safely. There is no reason in logic or experience, or from the words of s 15(4) of the DD Act to exclude from consideration in appropriate circumstances considerations relevant to the safety of others. A person required to work as a driver, but who has no capacity to judge critical features such as speed or distance, or who has no capacity for rapid decision making, is not able to perform the inherent requirements of the job. That is because the inherent requirements are themselves directed to the safety of that person, of passengers in the vehicle, or other road users. If the person, through some medical reason - whether physical or psychological - cannot perform the work safely, then that will mean that the person cannot meet the inherent requirements of the particular employment. There is no necessary dichotomy between the inherent requirements of a particular employment and safety considerations relevant to that particular employment. That is not intended as a mandate to drive a horse and cart through the operation of s 15 of the DD Act by permitting the exception such a wide area of operation that the proscription is of little practical impart. The umbrella of safety will not automatically provide shelter from the operation of s 15. Its provisions, and the provisions of the DD Act generally, will often be the final refuge of the disadvantaged in our society. As the last protection of the more vulnerable members of society to the whims or caprices of others, such legislation should be construed if anything somewhat aggressively and any limitations upon its operation construed narrowly. It will be a matter of fact for each case to determine what are the inherent requirements of particular employment. That test will exclude matters relating to a particular employer's convenience; such matters might be relevant if the employer invokes s 15(4)(b) that, in that employer's circumstances, the accommodation of the person with the disability who can perform the inherent requirements of the particular employment nevertheless imposes an unjustifiable hardship on the employer. It is a question of objective fact whether the particular methods by which the purpose of a job is presently achieved or the particular way in which the work is performed reflects its inherent requirements or not. An employer's operational requirements are not necessarily, or even commonly, inherent requirements of the particular employment. That is so whether such operational requirements are directed to efficiency, cost of production, safety, or other considerations. If such matters do not comprise inherent requirements of the job, then the employer must endeavour, despite its existing systems, to accommodate the disability by modification or adjustment of systems or procedures; the employer will only be excused from failure to do so if they would impose an unjustifiable burden. Safety or health considerations may arise at that point. But that is not to say, for the reasons expressed above, that there will not be circumstances where the inherent requirements of the particular employment involving its competent performance will exclude a person or persons by reason of health or safety considerations from those who are able to carry out the inherent requirements of the particular employment. In my view the Commissioner erred in limiting the inherent requirements, as he did, only to the capacity to physically perform the relevant tasks. The protection which was otherwise said to be available under s 48 of the DD Act is not sufficient to militate against that conclusion. That is because it provides an exemption, in the structure of the Act, only if discrimination contrary to the DD Act has been otherwise made out. Its place in the Act, as one of the general exemptions available if otherwise unlawful disability discrimination is made out, does not suggest that the earlier and specific provisions identifying when unlawful disability discrimination will exist should be read down by reason of it. Furthermore, it is confined in its operation to discrimination reasonably necessary to protect "public health". That term is not defined in the DD Act, but it would not on its face encompass considerations relating to the safety of co-employees or others in a private workplace. Nor, in my view, does the existence of s 53 relating specifically to considerations relevant to the ADF provide any mandate for reading down the words of s 15 of the DD Act. The ADF did not, in the particular circumstances rely upon s 53 because there were at material times no relevant declarations by regulation to give life to the terms as defined and used in that section. If s 15(4) on its terms applies in the present circumstances, it would be an inappropriate construction of that subsection to construe it by exempting the ADF from its operation, if it is otherwise within its ambit, simply because of s 53. There is no warrant for so doing. Indeed, it would be discriminatory to do so. In addition, s 53 is intended on its face to provide, subject to appropriately expressed regulations, protection to the ADF when soldiers are or are to be engaged in combat or combat-related duties; there will clearly be a wide range of employment activities of soldiers within the ADF which do not fall within those activities. It was, in my view, not intended that s 15(4) should in those circumstances not be available to the ADF at all. I also note the submissions that, in some way, the different expression as to the circumstances in which disability discrimination is not unlawful with respect to sporting activities (s 28(3)), or with respect to education (s 22(4)), somehow throws light on the proper meaning of s 15(4) of the DD Act. Section 28(3) relevantly provides: "(3) Subsection (1) does not render unlawful discrimination against a person: (a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or (b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or ..." and s 22(4) provides: "This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority." In my view, those provisions do not assist in the proper construction of s 15(4) of the DD Act. What is apparent is that the legislation has separately addressed the circumstances in which disability discrimination will not be unlawful in various fields of human endeavour, (ss 15-29) and has identified those circumstances differently for the several fields of activity dealt with. The fact that, for example in ss 22 and 28 there is no provision similar in terms to s 15(4) does not carry any suggestion that s 15(4) ought not to be given its proper meaning or should be read down in some way. If some of the general exemptions canvassed in Div 5 of Pt 2, ss 45-54, have in a practical sense a greater significance to activities such as sporting activities because s 28 does not have an expression equivalent to s 15(4), there is no reason to not give s 15(4) its proper effect. Indeed, that the various fields of human endeavour or activity are separately dealt with in ss 15-29 of the DD Act tends to suggest to my mind that each should be separately construed to give proper weight to its words. If, by virtue of the particular activity, eg a professional sportsperson, more than one of the provisions of ss 15-29 might apply (and I do not decide whether in such a case that consequence would necessarily follow), then each provision would apply according to its terms. The limits on the careful exercise of one practice will not lead to the view that parallel limits apply on the lawful exercise of another practice: Malone v Metropolitan Police Commissioner [1979] Ch. 344 at 372. Accordingly, in my view, the inherent requirements of a particular employment may in appropriate circumstances involve considerations as to the physical environment in which the particular work is to be performed and as to health and safety considerations in relation to the employee, fellow employees and others. That is not to say that any risk of injury to the employee or to others per se defines one boundary of the inherent requirements of a particular employment. Unfortunately, risk of illness or injury is commonplace. This is not the occasion to state definitively what degree, or increased degree, of risk of illness or injury either to the employee or to others is necessary for its consideration to prescribe an inherent requirement of the particular employment. As the Court said in Christie (above), the identification of those requirements is a matter of objective fact to be determined in all the circumstances of a particular case. My conclusion does not provide any mandate for an employer, under the aegis of safety considerations, to impose or create inherent requirements of a particular employment where they do not truly exist. Counsel for the appellant contended that the learned judge at first instance had fallen into error in concluding that the appellant neither sought, nor could have obtained, a finding that it was an inherent requirement of the employment as a soldier that the complainant be able to "bleed safely", as a soldier is in no different position to any other person in employment. Material presented on the appeal, without opposition, does confirm that his Honour was in error in his understanding of the appellant's case before the Tribunal. The explanation for his Honour's conclusion lies in the fact that the Commissioner did not refer to, or make findings on, such evidence because it was unnecessary for him to do so in the light of his conclusions as to the proper scope of s 15(4)(a) of the DD Act. There has been no adjudication on such evidence. Unless the Court restores the view of the Commissioner as to the narrow scope of operation of s 15(4) of the DD Act, the proper course will be to allow the appeal on this limited ground, and to remit the matter to the Commissioner for further hearing and determination in accordance with these reasons. It is sufficient for present purposes simply to note that it is accepted that, before the Tribunal, the appellant did seek a finding that it was an inherent requirement of employment as a soldier that he or she be able to 'bleed safely', in the sense that there be no significant risk to others including fellow soldiers of HIV infection, and further that there was evidence presented to the Tribunal upon which that finding was sought. That material included medical evidence as to the nature of HIV and its stages and the treatment including medication, and evidence as to the risks of bleeding injury in the activities associated with employment in the ADF, and of the risk of transmission of the AIDS virus to others, including other soldiers, if such bleeding injury occurred, either by treatment procedures or simply by accidental contact, and as to the consequences of its transmission. As noted earlier, that material also included detailed evidence as to the requirement for all soldiers to be deployable to perform combat or combat-related duties, and to undertake the training necessary to equip them to do so, and the reasons for that requirement both at a theoretical level and by illustration from recent past experience; and that all enlistees are trained as soldiers first. It was upon that last mentioned material that both the Commissioner and the learned judge at first instance found that the particular employment as a soldier in the ADF required the complainant to go anywhere and to perform any lawful duties required including combat, combat-related and peacekeeping duties as, when and where required by the ADF. For those reasons, in my view, this appeal should be allowed and the matter remitted to the Commissioner for further consideration as to the inherent requirements of the particular employment in the light of these reasons. I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Date: 13 January 1998 Counsel for the Appellant: Mr R Tracey QC with him Mr T Howe

Solicitors for the Appellant: Australian Government Solicitor

Solicitors for the First Respondent: Hill & Taylor Counsel for the Second Respondent: Ms C Holmes

Solicitors for the Second Respondent: Legal Aid Office (Queensland)