X. v. The Commonwealth

The applicant alleged that his discharge from the Australian Regular Army on the basis of his HIV positive status constitutes unlawful discrimination.

Decision | 02 December 1999
High Court of Australia, HCA 63

Facts

The applicant was enlisted as a general enlistee in the Australian Regular Army in November 1993. He had previously acknowledged that he had to undergo HIV testing and that he would be discharged from the Army if he tested positive, in accordance with the Australian Defence Force Policy which states that “[…] personnel with HIV infection are to be discharged”. In December 1993, he tested positive for HIV. As a result of his diagnosis, he was discharged. The applicant subsequently lodged a complaint with the Human Rights and Equal Opportunity Commission (the “Commission”) on the ground that his discharge from the Army based on his HIV status constituted unlawful discrimination under the Disability Discrimination Act (the “Act”). The Commonwealth claimed that the applicant’s discharge was lawful in light of section 15(4) of the Act, which establishes an exception where “the person because of his or her disability would be unable to carry out the inherent requirements of the particular employment”.

The Commission held that the applicant had been discriminated against on the basis of his HIV status. The Commonwealth appealed the decision to the Federal Court of Australia, which concluded that the Commission had made an error of law on the grounds that the applicant could not carry out the inherent requirements of his job due to his HIV–positive status. The applicant subsequently appealed the decision to the High Court of Australia.

Decision and Reasoning

The majority of the Court held that, even though the applicant enjoyed good health and was symptom free, the Commission had made an error of law in concluding that the applicant could carry out the inherent requirements of his job. The Court stated that such requirements “[…] are not confined to the performance of the tasks or use of the skills for which the employee is specifically prepared”. The Court added that three conditions must apply for discrimination not to be rendered unlawful:

First, a causal relationship between the disability and the inability to carry out the inherent requirements of the employment must exist.

Secondly, a clear inability to carry out such requirements, not just a difficulty, must be demonstrated.

Thirdly, a 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 “. The particular employment refers “[…] not only [to] 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.”

In this case, the Commission should have taken into consideration “the places and circumstances in which the tasks of a soldier are to be performed”. The Court therefore dismissed the appeal and remitted the matter to a differently constituted Commission.