Forbes v Australian Federal Police

Federal Court of Australia (Full Court)|2004-05-05|Before: Black CJ, Sackville JJ

the appeal 1 This is an appeal and cross-appeal from a judgment of a Federal Magistrate in proceedings brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act'). In those proceedings the present appellant, formerly a police officer with the Australian Federal Police ('AFP'), claimed compensation and other relief from the Commonwealth by reason of unlawful discrimination, contrary to s 15 of the Disability Discrimination Act 1992 (Cth) ('Disability Discrimination Act'). The appellant's case was that the Commonwealth, through the AFP, had discriminated against her on the ground of disability, namely a depressive illness from which she suffered. 2 The learned Magistrate rejected the appellant's case insofar as it alleged unlawful discrimination in relation to her conditions of employment and to the AFP's refusal to re-employ her at the conclusion of her fixed term contract as a police officer. However, his Honour found that the AFP had discriminated against the appellant by withholding information about her medical condition from the AFP Review Panel ('the Panel'). The Panel had been convened to make recommendations to the Commissioner of the AFP as to whether the appellant should be re-employed at the expiration of her fixed term contract. The Panel recommended against her re-appointment and the Acting Commissioner acted on that recommendation. 3 The Magistrate made a declaration that 'the Australian Federal Police discriminated against the applicant in withholding relevant material from the AFP Review Panel which considered the future employment of the applicant with the Australian Federal Police in 2000.' His Honour also ordered the AFP to provide a written apology to the appellant in terms to be agreed between the parties or as determined by the Court. However, he declined to award the appellant any compensation in respect of economic or non-economic loss. He subsequently ordered that each party should bear her or its own costs.

PARTIES 4 The AFP consists of the Commissioner and Deputy Commissioner of Police, AFP employees and special members: Australian Federal Police Act 1979 (Cth) ('AFP Act'), s 6. However, as the Magistrate observed, it appears that the AFP is not an independent legal person. The Commissioner is empowered, on behalf of the Commonwealth, to engage persons as employees: AFP Act, s 24(1). The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees: AFP Act, s 23(1). 5 The Commonwealth was joined as the respondent to the proceedings determined by the Magistrate. His Honour observed that the Commonwealth was the proper respondent by reason of s 64B of the AFP Act. Section 64B makes the Commonwealth liable 'in respect of a tort committed by a member in the performance or purported performance of his or her duties as such a member in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment'. 6 It is not entirely clear that the proceedings can be characterised as 'in respect of a tort'. Be that as it may, the Commonwealth appears to have been the proper respondent to the proceedings by virtue of its position as the employer of the appellant. In any event, the Commonwealth accepts that if the actions of the AFP amounted to unlawful discrimination, it is liable for any compensation that might be awarded pursuant to s 46PO(4)(d) of the HREOC Act. 7 The Magistrate did not identify the source of power to direct 'The Australian Federal Police' to make an apology and the issue was not raised on the appeal. In view of the outcome of the appeal, however, it is not necessary to consider this issue further.

the contentions 8 It must be said that it is not altogether easy to follow the grounds on which the appellant seeks to challenge the Magistrate's findings and conclusions. The written and oral submissions recount in some detail the rather unfortunate history of the appellant's relationship with the AFP since 1997. However, the submissions do not identify clearly the errors said to have been made by the Magistrate insofar as he rejected the appellant's claims. 9 As we followed the argument, the appellant contended that the Magistrate should have found that the Commonwealth (through the AFP) had discriminated against her by 'fail[ing] to acknowledge that the psychiatric condition which the Appellant suffered was compensable when overwhelming expert opinion… pointed to the contrary.' The submission appeared to be that had such a finding been made, it would have led the Magistrate to conclude that the Commonwealth had discriminated against the appellant by failing to provide rehabilitation to enable her to recover and return to employment. 10 It was pointed out to the appellant's counsel during the hearing that in order to establish disability discrimination it is at least necessary to show that the AFP had treated the appellant less favourably than it would have treated its other employees, in circumstances that were the same or not materially different. Counsel for the appellant initially argued that this could be established simply from the fact that the medical reports unanimously acknowledged that the appellant had a serious depressive illness and recommended some form of rehabilitation. After further consideration, however, he acknowledged that it would require evidence that the AFP would have treated other employees with diagnosed medical problems (presumably not at that stage recognised by Comcare as employment caused) differently. Counsel for the appellant further acknowledged that no evidence had been led before the Magistrate to show that the AFP had provided rehabilitation or similar services to employees suffering from conditions other than depressive illness and that the appellant would need leave to amend the notice of appeal to raise this ground. Ms Henderson, who appeared for the Commonwealth, objected to leave being granted, on the ground that had the issue been raised before the Magistrate, the Commonwealth might have wished to adduce evidence. In these circumstances, the Court refused leave to amend. 11 The appellant also challenged the Magistrate's refusal to award compensation for the unlawful discrimination he found to have occurred. The appellant's counsel submitted that, while the task of assessing compensation for loss of a chance was difficult, the Court was obliged to undertake it. 12 Finally, the appellant challenged the Magistrate's failure to award costs in her favour, contending that costs should have followed the event. 13 The Commonwealth's cross-appeal challenged the Magistrate's finding that the AFP had discriminated against the appellant by withholding from the Panel information concerning her illness. Ms Henderson submitted that his Honour's conclusion was fatally flawed primarily, because he had made no finding that information had been withheld on the ground of the appellant's disability as required by s 5(1) of the Disability Discrimination Act. Rather, she submitted, the Federal Magistrate had actually found that the information had been withheld on the basis that it was irrelevant. She argued that the Disability Discrimination Act could not require an employer to disclose information about an employee's health that it considered to be irrelevant to the question of whether that employee should be offered a further contract of employment.

the legislation 14 Section 46PO(1) of the HREOC Act provides that if a complaint has been terminated by the President under s 46PH (as the appellant's complaint was), the complainant may apply to the Federal Magistrates Court or to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. If the Court is satisfied that there has been unlawful discrimination, it may make such orders (including a declaration of right) as it thinks fit: s 46PO(4). The orders specifically mentioned include an order requiring the respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(d)) and an order requiring a respondent 'to perform any reasonable act… to redress any loss or damage suffered by an applicant' (s 46PO(4)(b)). 15 The objects of the Disability Discrimination Act are set out in s 3, as follows: '(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.' 16 The expression 'disability' is defined in s 4 of the Disability Discrimination Act. However, as there is now no dispute that the appellant suffered from a disability, in the form of a depressive illness, it is not necessary to extract the definition. 17 Section 15 of the Disability Discrimination Act provides as follows: '(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability…: (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (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…: (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.' 18 Two points should be made immediately about s 15. First, it is only unlawful for an employee to discriminate against a person on the ground of the other person's disability. Secondly, s 15(4) appears to have played no part in the proceedings determined by the Magistrate. 19 Section 5 deals with the concept of discrimination on the ground of disability. It provides as follows: '(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.' 20 Although s 6 of the Disability Discrimination Act is not directly relevant to this case, it should be noted that it expands the circumstances in which a person can be said to discriminate against another on the ground of a disability. Section 6 provides as follows: '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 the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply.' 21 Section 10 addresses the situation where an act is done both because of the aggrieved person's disability and for other reasons: 'If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason'.

background facts 22 The appellant became an officer in the Commonwealth Police (as the AFP was then known) on 27 March 1978. On 20 August 1990, her position was converted to a fixed term appointment, expiring on 25 August 2000. 23 Prior to December 1997, the appellant had an excellent record with the AFP. In that month, an incident occurred which involved a very sharp disagreement between the appellant and more senior officers at the Adelaide office of the AFP. The appellant disagreed strongly with an operational decision, left the office and, at the direction of her doctor, did not return to work. In fact, she did not return to work after 17 December 1997. 24 In consequence of a formal grievance submitted by the appellant on 12 January 1998, an internal investigation was undertaken into allegations made by her. The investigation concluded on 30 April 1998 that the allegations had no foundation. The appellant then wrote a letter to Senator Vanstone seeking further review of the grievances the subject of the internal investigation report. This prompted a further investigation by AFP internal security and audit, which concluded on 14 July 2000 that her allegations were unsubstantiated. 25 Shortly after the first internal investigation report was completed, on 10 May 1998, the appellant claimed compensation under the Safety Rehabilitation Compensation Act 1988 (Cth) ('SRC Act') for a 'major depressive disorder'. That claim was rejected on 20 November 1998. Following internal reconsideration, Comcare affirmed the decision to refuse compensation on 16 April 1999. The appellant challenged that decision in the Administrative Appeals Tribunal ('AAT'). On 13 June 2001, the AAT set aside the decision and decided that Comcare was liable to pay compensation to the appellant from 17 December 1997 until 6 October 1999. The latter date was selected because the AAT found that any depressive symptoms, which the appellant may have had on and after that date, could not be attributed to the particular work difficulty she had experienced in 1997. Rather, the symptoms, as at October 1999, related to the stress and anxiety of the various legal proceedings and the appellant's concerns about her alienation from her colleagues. 26 In the meantime, on 25 June 1999, the appellant applied to take three months leave without pay. This request was refused. On 29 September 1999, the AFP coordinator for the southern region directed the appellant to present herself for duty at the AFP Adelaide office. The letter stated that failure to attend would be interpreted as an intention to resign from the AFP. It appears that this direction was subsequently withdrawn. 27 Following some attempts at mediation, the General Manager, Professional Development, wrote to the appellant on 3 March 2000. He advised the appellant as follows: 'I have considered all aspects of your AFP employment and hold concerns that there has occurred a fundamental and irrevocable breakdown in the employment relationship, such that I have lost confidence in your continued suitability to remain a member of the AFP.' The letter invited the appellant, should she seek reappointment, to provide written submissions in relation to the concerns expressed in the letter. 28 After some further correspondence, the General Manager, Finance and People Management, wrote to the appellant's solicitors on 19 July 2000, providing particulars of what was said to have been the fundamental and irrevocable breakdown in the employer relationship. By letter dated 29 July 2000, the appellant made detailed written submissions responding to the particulars of concern provided by the AFP. These were supplemented by further submissions on 6 August 2000. 29 On 22 August 2000, a delegate of the Commissioner wrote to the appellant advising that it had been decided not to reemploy her at the completion of her current contract, which was due to end on 25 August 2000. 30 On 3 September 2000, the appellant requested a review of this decision by the Panel. The Panel was established pursuant to an agreement between the AFP and the Australian Federal Police Association. Its functions were to consider matters referred to it by the Commissioner or by the National Secretary of the Association and to make recommendations to the Commissioner in respect of those matters. In this instance, the members were an independent Chairman, a Deputy Commissioner of the AFP and a representative of the Association. 31 On 19 October 2000, the appellant made written submissions to the Panel. The Panel had the documents that had been before the primary decision-maker. The appellant, her professional reporting confidante and two other AFP officers gave oral evidence to the Panel. 32 On 30 October 2000, the Panel made a written recommendation to the Commissioner. The report of the panel noted that there were: 'a number of features of this matter which might perhaps have been handled better. It is possible that a better solution to this matter might have been achieved. We point to the fact that in 1998 [the appellant] sought to leave the AFP and her offer to do so was declined. Her complaints about the alleged incompetence of the Management of the Adelaide Office at the time were considered but her identity was disclosed…. [I]t would appear that such disclosure represents a breach of normal procedures for which there is no explanation available to the panel…. It is trite to observe that this is a difficult matter to decide. What we have attempted to do is to consider the matter on balance and to attempt to reach a conclusion which is consistent with the best interests of all concerned. If the panel were to recommend [that the appellant] should be reemployed at this stage and if such a recommendation were to be adopted, we are far from satisfied that it would be in the best interests of the AFP or [the appellant].' On balance, the Panel concluded that it was impossible to make a recommendation for the appellant's reemployment 'particularly at this time'. It added, however, that the AFP had some responsibility to her and suggested that further counselling should be made available to her by a professionally competent body in order to assist her future employment prospects. 33 The Panel concluded its report as follows: 'We wish to make it clear that our reason for not recommending [the appellant's] re-employment relates to our view that it would be impossible for her to resume her normal employment and to resume a contract of employment on a basis which would be satisfactory to all concerned. In other words, the conclusion we have reached is that there has been not only a breakdown in the employment relationship, but a breakdown of such magnitude that it is highly unlikely that the damage can be repaired.' 34 On 1 November 2000, the Acting Commissioner of the AFP accepted the recommendation of the Panel. 35 On 26 October 2001, prior to the Panel making its written recommendation, the appellant lodged a complaint with the Human Rights and Equal Opportunity Commission ('HREOC') in relation to alleged discriminatory conduct by the AFP. That complaint was augmented on 11 February 2002. The President of HREOC terminated the complaint on 28 February 2002, pursuant to s 46PH(1)(f) of the HREOC Act, on the ground that she was satisfied that the subject matter of the complaint had been adequately dealt with by another statutory body. The President had regard, in particular, to the decision of the AAT and to the decision of the Panel. 36 On 22 March 2002, the appellant filed the application in the Federal Magistrates Court under the HREOC Act seeking compensation and other relief against the Commonwealth. The judgment of the Court was delivered on 26 June 2003. A separate judgment on costs was delivered on 16 July 2003.

the judgment of the magistrates court 37 The Magistrate noted that the appellant claimed that she had been discriminated against, contrary to s 15(1)(a) and (b) of the Disability Discrimination Act, by the AFP's refusal to re-employ her. She also claimed that the AFP had discriminated against her, contrary to s 15(1)(d) of the Disability Discrimination Act, by failing to implement a return to work program for her or to provide adequate counselling. 38 His Honour found that the appellant suffered from a depressive illness and that this illness constituted a 'disability'. She had suffered from the disability from 17 December 1997, the day she left the workplace. These findings are not in dispute. 39 The Magistrate quoted a passage from the AAT's reasons in the compensation proceedings under the SRC Act, as follows: 'The [AAT] comments that the AFP adopted a poor attitude with respect to the rehabilitation and support of the applicant. There is no evidence of a suitable return to work programme being considered at any stage. The AFP provided entirely inadequate support by way of counselling, which clearly should have been ongoing throughout the entire period. The [AAT] gained the impression from Ms Peisley's evidence [an AFP officer] that the AFP simply sat on its hands and waited to see what the applicant might do, rather than be proactive to attempt to assist the applicant. Mr Mannow [another AFP officer] contacted the applicant off his own bat, and whilst he is to be commended for that, it is a pity that his superiors did not initiate further and more intense assistance. Had such occurred, the situation in which both parties now find themselves may have been averted.' 40 The Magistrate rejected the appellant's contention that the conduct referred to in the AAT's reasons was discriminatory. After tracing in some detail the communications between the appellant and the AFP and the counselling services provided to her, the Magistrate concluded that: 'the conduct of the AFP is explicable by reasons other than disability discrimination. First, the AFP knew that [the appellant] was considering whether or not to resign and it was reasonable to give her time to consider her options. Secondly, the AFP was distracted by various grievances and complaints made by her which required investigation. Thirdly, although the AFP in some part or other of its organisation must have been aware of the medical reports concerning [the appellant], the AFP in Adelaide, which was responsible for making decisions concerning her future was, for most of the period, either kept in the dark by [the appellant], or led by the decisions and advice from Comcare to believe that her condition was not compensable and, by implication, not serious.' 41 The AFP had taken reasonable steps to assist the appellant to 'work through' her illness and to decide whether or not she wanted to return to work. Management could have done more, but their failure to do so was based not on her disability but on their belief that she had no disability. That belief turned out to be erroneous, but that did not become clear until the AAT's decision in June 2001: 'The conduct of the AFP, while it may merit some criticism, was not discriminatory. The AFP would have treated an able employee who was believed to be a malingerer no better than it treated [the appellant].' 42 The Magistrate accordingly found that the AFP did not discriminate against the appellant in relation to her conditions of employment. 43 The second aspect of the appellant's claim related to the failure of the AFP to reemploy her on the termination of her fixed contract of employment. On the basis of evidence given by the Chairman of the Panel, the Magistrate found that there could be no serious allegation that its 'decision' (sic- recommendation) was discriminatory. The decision of the Panel was 'unimpeachable' and provided an effective independent review of the previous decision made by AFP management. The decision itself was 'clearly based on the irretrievable breakdown of the employment relationship' and was unrelated to the health of the appellant. 44 The Magistrate identified a third question for consideration. This was whether the Panel was 'fully and properly informed of all material considerations by the AFP'. The Magistrate found that AFP management had taken a decision not to inform the Panel of the detail concerning the appellant's medical condition 'on the basis that it was irrelevant having regard to the advice from Comcare about the lack of a compensable injury'. The recommendation to this effect was put before the Panel which accepted and acted upon it. His Honour considered, however, that the AFP's recommendation was 'erroneous': 'In the first place, the relevant issue was not whether [the appellant] had a compensable injury for the purposes of the [SRC] Act but, rather, whether she suffered from an illness which impacted upon her capacity to work for the AFP. In addition, [the appellant's] illness was relevant to a consideration of whether the apparent breakdown of the employment relationship was irretrievable. The breakdown in the employment relationship might have been retrievable if [the appellant] could be expected to return to sound mental health.' 45 The Magistrate acknowledged that the appellant could have put forward the relevant material. But her reluctance to do so was understandable. In his Honour's view: 'the AFP was under an obligation to put before the review committee information concerning [the appellant's] illness. Its failure to do so left the review committee under the impression that [the appellant] was simply a disgruntled employee who had, by her own actions, irretrievably broken the employment relationship. Information about [the appellant's] condition would have more clearly explained the breakdown in the employment relationship and would have enabled the review committee to better consider whether that relationship could be restored. It could be expected in the ordinary course of events that the AFP would put before the review committee everything relevant to the performance of the task before it. In this case the AFP failed to do so. In failing to do so the AFP treated [the appellant] less favourably than it could be expected to have treated an able bodied employee. In my view, this amounts to a breach of s 15(1)(a) of the DDA in relation to the arrangements made for the purpose of determining who should be offered continuing employment in the AFP. The AFP may have formed the view that [the appellant] was a malingerer, but the review committee needed to make its own judgment about all relevant facts and circumstances. The conduct of the AFP in withholding information about [the appellant's] medical condition put [her] in a less favourable position [than] she would have been in if she had not suffered from a disability.' 46 The Magistrate went on to consider whether, at the time the AFP decided not to disclose the appellant's medical history to the Panel, she in fact suffered from a disability. He found that she did. 47 Finally, his Honour addressed the appellant's claims for compensation. He pointed out that the only discrimination he had found lay in the arrangements made for the decision on the appellant's continuing employment. He found that even if the appellant's full medical details had been put before the Panel, it was probable that the same decision would have been reached. The AFP's conduct in withholding the medical evidence caused the appellant to lose the chance that the Panel might have reached a different view. The Magistrate accepted, however, that the chance that the Panel would have reached a different inclusion was 'very small. It is probably less than 10 per cent and, in my view, it is impossible to value…. I find that [the appellant] has suffered no reasonable economic loss by reason of [the] discrimination'. 48 His Honour further found that although the appellant had suffered a great deal of emotional trauma following her departure from work, it would not have diminished even had the discrimination not occurred. Indeed, the withholding of the information protected her from distress. Accordingly, she had not suffered any non-economic loss meriting the award of damages.

operation of the disability discrimination act: purvis V new south wales 49 The operation of the Disability Discrimination Act was recently considered by the High Court in Purvis v New South Wales (2003) 202 ALR 133 ('Purvis'), decided after the Magistrate delivered judgment in the present case. In Purvis, the appellant brought proceedings alleging that educational authorities had discriminated against his foster child, contrary to s 22 of the Disability Discrimination Act, on the ground of the child's disability. The child, aged 12, had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school principal and the Department of Education determined that the student should be enrolled in a special school and should be excluded from the school he was attending. By majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and Kirby JJ, dissenting), the High Court held that the exclusion of the student did not constitute discrimination on the ground of his disability, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way. 50 The joint judgment of Gummow, Hayne and Heydon JJ in Purvis identified three issues in the appeal (at 178 [191]-[193]). First, was the student's disability to be regarded as the disorder from which he suffered, or as the disturbed behaviour that resulted from the disorder? Secondly, was the comparison required by s 5(1) of the Disability Discrimination Act between the way the authority treated the child and the treatment that would have been accorded to a student who was not disabled but who had acted as the student had acted? Or was the comparison to be made with a non-disabled student who had not exhibited violent behaviour? Thirdly, there was an issue as to the relationship that had to exist between the disability and the alleged discriminatory conduct on the part of the educational authority. Their Honours resolved the second issue in a manner fatal to the student's case. 51 The joint judgment pointed out that the Disability Discrimination Act operates differently than other anti-discrimination legislation. The Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth), for example, require that people not be treated differently on the ground of sex or race; difference in sex or race is identified generally as an irrelevant consideration (at 180 [198]). By contrast, 'disability discrimination legislation necessarily focuses upon a criterion of admitted difference' (at 180 [199]). Hence the need for comparisons to be made with another person or group of persons 'with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different" or "disabled" or "disadvantaged"' (at 180 [200]). 52 Their Honours also pointed out that the form of the Disability Discrimination Act differs from disability discrimination legislation in other countries. Considerable care had to be taken, therefore, in applying what had been said about the aims or effect of that legislation to the construction of the Australian legislation (at 181 [206]). 53 For present purposes, their Honours' comments on the operation of s 5(1) of the Disability Discrimination Act are important. They said this (at 183 [213]-[214]): 'Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability" (emphasis added). The "comparator" identified by s 5(1) is "a person without the disability". The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act.' (Emphasis in original.) 54 The joint judgment then asked what is meant by the reference in s 5(1) to 'circumstances that are the same or are not materially different' (at 184 [217]). While s 5(2) amplifies the operation of that expression, it cannot be read as requiring the provision of different accommodation or services (at 184 [218]): 'there is no textual or other basis in s 5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled persons for the purposes of s 5'. 55 The student's argument was that his disturbed behaviour was part of his disability. The appropriate comparison was therefore said to be with a non-disabled person, whose behaviour was not affected by a similar disability. The required comparison, according to this argument, involved excluding all the circumstances constituting the disability. The joint judgment rejected this argument (at 185 [222]-[224]): 'It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. … There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.' (Emphasis in original.) 56 Thus the circumstances to be considered in making the comparison required by s 5(1) included but were not limited to the student's violent behaviour. According to the joint judgment, s 5(1) presented two questions (at 186 [225]):

How, in those circumstances would the educational authority have treated a person without the student's disability?
If the student's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of the student's disability? 57 The Commissioner's decision in favour of the disabled student was flawed because it failed to identify the circumstances which led to his treatment. There had been no determination of how a person without the disability would have been treated in circumstances that were the same or not materially different from the circumstances surrounding the student's treatment. 58 Although it was unnecessary to consider the third issue, the joint judgment briefly addressed the requirement in s 5(1) of the Disability Discrimination Act that the aggrieved person be treated less favourably because of that person's disability. Some authorities had taken the view that the phrase 'on the ground of' did not require an examination of intention or motive (for example, Waters v Public Transport Corporation (1991) 173 CLR 349, at 359-360, per Mason CJ and Gaudron J), while the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, had treated as decisive the aim of the council in acting as it did. The joint judgment made this comment (at 187 [236]): 'For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".' 59 Callinan J agreed with the joint judgment 'with respect to the "comparator" issue and the bearing that their Honours' construction of s 5(1) of the Act has on it' (at 197 [273]). 60 Gleeson CJ held that the comparison required by s 5(1) of the Disability Discrimination Act was with a non-disabled student who exhibited violent behaviour. The statute required a comparison with a student without the disability, not a student without the behaviour (at 137 [11]). 61 His Honour also held that the ground of the authority's action in relation to the disabled student was that student's violent conduct and the principal's concern for the safety of other students and staff members. In identifying the basis of an impugned decision, he considered it is proper to take account of the objects of the Disability Discrimination Act and the scope and purpose of the legislation (at 138 [14]). A decision-maker may therefore identify and act on a threat to the safety or welfare of persons for whom the decision-maker is responsible. 62 McHugh and Kirby JJ in dissent took a different view from the majority on a number of issues. In particular, their Honours held that the circumstances of the alleged victim of discrimination must be excluded from the circumstances of the comparator insofar as those circumstances are related to the prohibited ground (at 162 [119]). Since the disabled student's disability gave rise to the behaviour, it was incorrect to regard the appropriate comparator as one who exhibited the behaviour that the disabled student did. The proper comparator was a student who did not misbehave. 63 Their Honours took the view (at 171 [160]) that in determining whether there has been discrimination 'on the ground of' the alleged victim's disability, 'it is necessary to consider why the discriminator acted as he or she did, [but] it is not necessary for the discriminator to have acted with a discriminatory motive'. The focus must be on the 'real reason' for the act. 64 The disabled student had been treated less favourably because of his behaviour. Since his behaviour was a manifestation of his disability, he had been discriminated against on the ground of his disability. It was not to the point that the principal may have had a benevolent motive in seeking to transfer the student to a special school.

the cross-appeal 65 It is convenient to consider first the cross-appeal in the light of the principles stated in Purvis. It follows from the language of ss 5 and 15 of the Disability Discrimination Act that a finding of unlawful discrimination could properly have been made in the present case only if

the treatment accorded to the appellant was less favourable, in circumstances that are the same or are not materially different, than the treatment the AFP would have accorded to an AFP officer without the appellant's disability; and
the treatment accorded to the appellant was 'because of [her] disability' (that is, because of the depressive illness from which she suffered). 66 The Commonwealth's argument on the cross-appeal focused upon the latter requirement. Ms Henderson contended that the Magistrate had simply made no finding that the AFP's decision (or recommendation) not to divulge details of the appellant's medical condition to the Panel was because of her disability. 67 This contention is, in our view, plainly correct. The Magistrate criticised the AFP's recommendation to the Panel that the details of the appellant's medical condition were irrelevant. His Honour pointed out that the issue was not, as the AFP apparently thought, whether the appellant had a compensable injury for the purposes of the SRC Act. He also pointed out that the appellant's illness was relevant to a consideration of whether the apparent breakdown of the employment relationship was irretrievable. The Magistrate thought that the AFP was 'obliged' to put the material before the Panel. While the AFP may have thought that the appellant 'was a malingerer', the Panel needed to make its own judgment. 68 It is, however, one thing for the AFP to have misunderstood its responsibilities to the Panel or to the appellant (if that is what the Magistrate intended to convey). It is quite another to conclude that the AFP's actions were 'because of' the appellant's depressive illness. The Magistrate made no such finding. 69 In Purvis, there was disagreement as to whether the motives of the alleged discriminator should be taken into account in determining whether that person has discriminated against another because of the latter's disability. Gummow, Hayne and Heydon JJ thought that motive was at least relevant. Gleeson CJ thought that motive was relevant and, perhaps, could be determinative. McHugh and Kirby JJ thought motive was not relevant. All agreed, however, that it is necessary to ask why the alleged discriminator took the action against the alleged victim. 70 In the present case, therefore, it was necessary for the Magistrate to ask why the AFP had withheld information about the appellant's medical condition from the Panel and to determine whether (having regard to s 10) the reason was the appellant's depressive illness. His Honour did not undertake that task and therefore failed to address a question which the legislation required him to answer if a finding of unlawful discrimination was to be made. His decision was therefore affected by an error of law. 71 Ordinarily an error of law of this kind would result in the proceedings being remitted to the Magistrate's Court for the necessary factual findings to be made. In this case, however, the findings made by his Honour are inconsistent with a conclusion that the AFP's recommendation that the medical information not be disclosed to the Panel was made because of the appellant's disability. The Magistrate found that the AFP in Adelaide, which was responsible for making decisions concerning the appellant's future, was led by the advice of Comcare to believe that his condition was not compensable and therefore not serious. The AFP's failure to do more to assist the appellant 'was based not on [the appellant's] disability but, rather, on a belief that she did not have one'. 72 The Magistrate also quoted a minute prepared by an AFP officer for the AFP's General Manager, Finance and People Management, dated 10 August 2000. This recorded the following: '[The appellant] made a worker's compensation claim to Comcare in relation to her illness. The principal grounds given in support of the claim are generally similar to those given in support of her allegation against then GMCR and DOCR. Comcare has twice rejected the claim and she has appealed this decision to the AAT. A hearing is set down for 21 to 23 August 2000 in Adelaide. As you are aware a settlement offer has been made by the AFP but to date has not been accepted. As Comcare advice to the AFP is that no compensable injury exists I suggest the issues and medical evidence in relation to [the appellant's] claimed illness are not relevant to your considerations as to her suitability for engagement as an employee.' His Honour found that this recommendation was put before the Panel and accepted by it. Although finding that the recommendation was 'erroneous', he did not suggest that the minute did not accurately record the view that the details of the appellant's medical condition were irrelevant to the deliberations of the Panel. Indeed, the Magistrate specifically found that AFP management made the decision not to give the Panel more detailed information about the appellant's medical condition because the information was thought to be irrelevant. 73 In view of these findings, it would not be open to the Magistrate to conclude that the AFP's conduct in not disclosing details of the appellant's medical condition to the Panel was because of the appellant's depressive illness. On the contrary, the findings make it clear that the AFP acted as it did because its officers thought that the appellant was not seriously disabled. In short, the AFP acted as it did not because of the appellant's disability, but for other reasons. 74 For these reasons, the cross-appeal must be allowed. 75 The Commonwealth's submissions on the cross-appeal did not challenge the Magistrate's finding that the AFP's conduct in withholding information about the appellant's medical condition put her in a less favourable position than she would have been in had she not suffered from a disability. Had the finding been challenged, it would have been necessary to follow the approach mandated by s 5(1) of the Disability Discrimination Act. As Purvis shows, s 5(1)requires the circumstances attending the treatment of the disabled person to be identified. What is then to be examined is what the alleged discriminator would have done in those circumstances if the person concerned had not been disabled. 76 The Magistrate did not approach the matter this way. Rather, he seems to have concluded that the appellant had been put in a less favourable position than if she had not been disabled simply because she had lost the opportunity of putting evidence concerning her medical condition before the Panel. The circumstances attending the AFP's treatment of the appellant would seem to have included the AFP's genuine belief that the appellant, despite her claims to have suffered from a serious depressive illness, did not in fact have such an illness. That belief was in fact mistaken, but it explains the AFP's decision to regard the information concerning the appellant's medical condition as irrelevant to the question of her re-employment. This suggests that the appropriate comparator was an able-bodied person who claimed to be disabled, but whom the AFP genuinely believed (correctly, as it happens) had no relevant disability. If this analysis is correct, it seems that the AFP treated the appellant no less favourably than, in circumstances that were the same or were not materially different, it would have treated a non-disabled officer. 77 Since the point was not fully argued it is not necessary to express a final view on it.

Refusal to Re-Employ 78 The appeal against the Magistrate's decision that the failure to reemploy the appellant was not because of her disability is closely related to the subject of the cross-appeal and so it is convenient to deal with this ground of appeal first. The Magistrate's decision reflects two interrelated findings. First, the Panel's decision was based on its view (independently of the medical evidence) that the employment relationship between the appellant and the AFP had irrevocably broken down. According to his Honour, there could be no serious allegation that the decision was discriminatory (by which we take his Honour to mean that the Panel's decision was not based on the appellant's disability). Secondly, the Panel's decision was 'on its face unimpeachable' and provided an 'effective independent review of the decision previously made by the AFP management'. 79 Counsel for the appellant contended in oral argument that the Panel's conclusion was based on the appellant's absence from work and that this absence in turn was a manifestation of her depressive illness. Thus, so it was argued, the decision not to reemploy her discriminated against her on the ground of her disability. 80 The Magistrate found that the appellant's absence from work for a period of over two years was 'clearly important in establishing [the] breakdown' of the relationship between herself and the AFP. If the Disability Discrimination Act makes it unlawful to refuse re-employment to someone because of their lengthy absence from work, where that absence is due to a disability, the appellant's submission would have force. The difficulty is that the appellant must establish that the AFP treated her less favourably, in circumstances that are the same or are not materially different, than it treated or would have treated a non-disabled person. The approach of the majority in Purvis makes it clear that the circumstances attending the treatment of the disabled person must be identified. The question is then what the alleged discriminator would have done in those circumstances if the person concerned was not disabled. 81 Here, the appellant was not reappointed because the history of her dealings with the AFP, including her absence from work for nearly three years, showed that the employment relationship had irretrievably broken down. There is nothing to indicate that in the same circumstances, the AFP would have treated a non-disabled employee more favourably. On the contrary, the fact that the Panel did not know of the appellant's medical condition indicates very strongly that it would have refused to reemploy a non-disabled employee who had been absent from work for a long period and whose relationship with the AFP had irretrievably broken down. 82 For these reasons, the Magistrate has not been shown to have erred insofar as he concluded that the AFP did not discriminate against the appellant on the ground of her disability.

Failure to Provide Adequate Counselling or Rehabilitation 83 As has been noted, the Magistrate rejected the appellant's claim that the AFP unlawfully discriminated against her on the ground of her disability by failing to provide her with sufficient counselling and support to deal with her depressive illness. His Honour found that the AFP's conduct (or failure to act) was 'explicable by reasons other than disability discrimination'. Although his Honour did not frame this finding in the precise language of s 5(1) of the Disability Discrimination Act, clearly enough he considered that the AFP did not act as it did 'because of [the appellant's] disability', but for other reasons. 84 The appellant's counsel did not specifically challenge this finding. The thrust of the appellant's argument was that the AFP had refused to act on medical reports supplied by or on behalf of the appellant to AFP management. But we were not taken to any evidence that the AFP had declined to provide support to the appellant because she suffered from a depressive illness or other disability. As the Magistrate found, the AFP acted in the way it did, for three reasons: it wanted to give the appellant time to consider her position; it was distracted by the appellant's various grievances and complaints; and the AFP in Adelaide, acting on its understanding of Comcare's advice, did not believe that the appellant had a serious disability. Given that the central question is why the appellant was treated as she was (Purvis, at187), the answer, on the Magistrate's findings, is: 'for reasons other than her disability'. 85 It may be that the appellant's submissions on the appeal proceeded on the unstated assumption that ss 5 and 15 of the Disability Discrimination Act require an employer to provide different or additional services for disabled employees. If this were correct, the failure to provide a seriously depressed employee with appropriate counselling services might constitute less favourable treatment for the purposes of s 5(1). Purvis, however, firmly rejects such a proposition. It is true that s 5(2) provides that a disabled person's need for different accommodation or services does not constitute a material difference in judging whether the alleged discrimination has treated a disabled person less favourably than a non-disabled person. However, s 5(2) cannot be read as saying that a failure to provide different accommodation or services constitutes less favourable treatment of the disabled person for the purposes of s 5(1): Purvis, at 164 [218], per Gummow, Hayne and Heydon JJ; at 158 [104], per McHugh and Kirby JJ. 86 The appeal must therefore be dismissed.

CONCLUSION 87 The appeal must be dismissed and the cross-appeal allowed. The declaration and order for a written apology by the learned Magistrate on 26 June 2003 must be set aside. In lieu therefore, an order must be made dismissing the application. 88 The appellant must pay the costs of the appeal and cross-appeal in this Court. The costs order made by the Magistrate on 16 July 2003 must be set aside. In lieu thereof, an order must be made that the appellant pay the Commonwealth's costs of the proceedings in the Magistrates Court. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Solicitor for the Respondent: Australian Government Solicitor

Disability and Discrimination Act 1992(Cth)ss 3, 4, 5, 6, 15, 22

Human Rights and Equal Opportunity Commission Act 1986(Cth)ss 46PH, 46PO

Safety Rehabilitation Compensation Act 1988(Cth)

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