X v. Commonwealth

X was discharged from the Australian Defence Force (ADF) after he tested positive for HIV, in accordance with an ADF policy that sought to avoid transmission of HIV between soldiers. He subsequently filed a complaint with the Human Rights and Equal Opportunity Commission (the Commission), claiming his discharge constituted unlawful discrimination under the Disability Discrimination Act 1992 (the Act).  It is unlawful under the Act to discriminate against an individual on the basis of a disability, including in employment. However, section 15(4) of the Act creates an exception whereby it is not unlawful discrimination if, because of an individual’s disability, he or she is unable to carry out the “inherent requirement of the particular employment” or would require assistance to do so, the provision of which would place an unjustifiable hardship on their employer.

The Commission held an inquiry and found that X’s employment had been terminated unlawfully. The Commonwealth appealed the decision to the Federal Court. The Federal Court held that the Commission had made an error of law in its interpretation of the phrase “inherent requirements of the particular employment” contained in section 15(4). It ordered that the matter be remitted back to a differently constituted Commission. X then appealed to the High Court of Australia.

During each stage of the proceedings, HIV was considered to be a ‘disability’ in accordance with the Act. The Commonwealth, in fact, conceded that X had been discriminated against on the basis of this disability. They argued, however, that the discrimination was not unlawful because X was unable to perform the inherent requirements of his particular employment. The Commonwealth argued that deployment was an inherent requirement of service in the army. Because of the risk of injury during training or combat, and because in the case of X, injury could also lead to transmission of HIV to another soldier, X could not be deployed and therefore could not perform an inherent requirement of his employment.

The central question in the appeal was how the phrase “unable to carry out the inherent requirements of the particular employment” would apply to an HIV-positive soldier.

The majority of the Court held that the Commissioner had made an error of law in his interpretation of section 15(4) of the Act. The Commissioner had interpreted the phrase “inherent requirements of the particular employment” too narrowly by limiting it to the “tasks or skills for which [the Appellant was] specifically prepared” (para. 105). The Commissioner should have instead considered “the places and the circumstances in which the tasks of a soldier are to be performed” (para. 106). However, the Court did not go on to determine what the inherent requirements of employment as a soldier in the ADF would be.

The Court did observe that in order for discrimination to be lawful under section 15(4) of the Act, a number of elements must be taken into account:

• There must be a causal relationship between the disability and the inability to carry out the inherent requirements of the particular employment.
• An inability to perform the inherent requirement of the particular employment, not simply a difficulty, must be demonstrated.
• Reference must be made to the “inherent requirements of the particular employment.”

• The “inherent requirements” are the “characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral” (para. 102).
• The “particular employment” includes “not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on” (para. 103).

At the original hearing of the matter before the Commission, it was held that deployment was not inherent but rather an incident of employment in the army. On appeal, the question of whether deployment was an inherent requirement was not decided. However, the Court held that an employee must be able to perform the inherent requirements of their particular employment with safety to themselves and to those whom they come into contact in the course of their employment.

The Court did not determine whether or not the acknowledged discrimination was unlawful in this case; the court did not examine the level of risk that a soldier living with HIV might pose to his fellow soldiers; nor did it examine the correctness or otherwise of the Army’s policy to discharge soldiers living with HIV. The Court declared that these were “not questions that can be resolved in the present appeal.” Only Justice Kirby attempted to quantify, albeit briefly, the risk of transmission of HIV and thereby X’s ability to carry out the inherent requirements of the job.

The appeal was dismissed and it was ordered that the matter be remitted back to the Commission, differently constituted, for further hearing in accordance with the Court’s interpretation of the Act.

“Section 15(4)(a) contains a number of elements that must be taken into account in seeking to apply it. First, the inquiry is whether ‘because of [the person’s] disability’ he or she would be unable to carry out the inherent requirements of the particular employment. That is, the search is for a causal relationship between disability and being unable to carry out the inherent requirements of that employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated. Thirdly, the requirements to which reference must be made are the ‘inherent requirements of the particular employment’.” Para. 101.

“To give but one example, if a person confined to a wheelchair could readily act as a counter clerk if a ramp were installed at one place in the office in which he or she was to be employed, it may well be open to conclude that the person could carry out the inherent requirements of the particular employment if that facility were provided. The question then would be whether provision of the ramp would impose an unjustifiable hardship on the employer. By contrast, however, a person would, on the face of it, be unable to carry out the inherent requirements of an employment that required the employee to work for extended periods at an isolated outstation thousands of kilometres from medical services if that person required weekly treatment from a city clinic for some disability.” Para. 104.

“As we have said, inability to perform must be assessed practically. In particular, we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment.” Para. 109.