Williams v Cth of Australia [2002] FMCA 89 (7 June 2002)

Last Updated: 17 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS v CTH OF AUSTRALIA

[2002] FMCA 89

HUMAN RIGHTS - Disability discrimination - discharge from RAAF due to disability - insulin dependent diabetes - whether unlawful discrimination - s.15 and s.53 Disability Discrimination Act 1992.

X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177

Qantas Airways Limited v Christie [1998] HCA 18; (1998) 193 CLR 280

Human Rights & Equal Opportunity Commission Act (1986) Cth s.3

Disability Discrimination Act (1992) Cth ss.3, 4, 5, 8, 10, 11, 15, 53

Disability Discrimination Regulations 1996 Regs 3 & 4

Applicant:

GARY WILLIAMS

Respondent:

COMMONWEALTH OF AUSTRALIA

File No:

DZ 4 of 2000

Delivered on:

7 June 2002

Delivered at:

Melbourne

Hearing Dates:

12, 13 & 14 June 2001

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr M Grove

Solicitors for the Applicant:

Ward Keller

Counsel for the Respondent:

Mr R Tracey QC

Solicitors for the Respondent:

Australian Government Solicitor

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NORTHERN TERRITORY

DZ 4 of 2000

GARY WILLIAMS

Applicant

And

THE COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application GARY WILLIAMS ("the Applicant") claims that the Respondent unlawfully discriminated against him on the basis of a disability, namely Insulin Dependent Diabetes (IDD) by terminating the Applicant's employment with the Royal Australian Air Force (RAAF) on 3 March 2000 and/or discharging and/or declaring him medically unfit for further service (MUFS).

2. The Applicant was diagnosed as suffering from IDD on 2 October 1989.

3. The Applicant claims in his application that the decision to medically discharge him from the RAAF constitutes unlawful discrimination pursuant to the Human Rights & Equal Opportunity Commission Act (1986) Cth ("the HREOC Act").

4. It is contended by the Applicant that the decision to discharge him from the RAAF constitutes unlawful discrimination pursuant to provisions of the Disability Discrimination Act (1992) Cth ("the DDA").

5. It is claimed the Applicant suffers a disability as defined by s 4 of the DDA. At all relevant times the Applicant was a Commonwealth employee and the Respondent was the employer. It is claimed that the Respondent discriminated against the Applicant in that it treated the Applicant less favourably than it treated and treats persons in its employ who do not have diabetes as defined by s 5 of the DDA. The Applicant also relies upon indirect discrimination as defined by s 6 of the DDA and to the extent that it is necessary s 10 of the DDA. Essentially the claim of the Applicant is that the discrimination occurred as a result of the Applicant being discharged and/or dismissed due to his disability and that that conduct constitutes unlawful discrimination.

6. The issue of loss or damage has been deferred by agreement until the substantive issue has been decided by the Court. After the hearing further submissions in writing were received from the parties in relation to the issue of costs in human rights applications.

Background facts

7. In this application the background facts concerning the Applicant's enlistment, re-engagement, period of service and classification during the course of his employment are not in issue. A chronology has been usefully set out by the Respondent in its Amended Statement of Facts and Contentions which is also based upon affidavit material and exhibits attached thereto which have been relied upon in this application by the Respondent.

8. The Applicant enlisted on 6 October 1981 as an airman in the permanent Air Force of the RAAF. He was subsequently re-engaged for service in 1987, 1988, 1990, 1991, 1994 and 1996. It will be noted that after the initial six-year period of enlistment, the Applicant was re-engaged for service on a yearly basis in 1987/1988 and after diagnosis of the condition of IDD in 1989 was then re-engaged for 12-month periods from 1990 through to 1991. He was re-engaged for a period of three years to 1994 and a further two-year period to 1996. It is significant, in my view, that in 1996 following a medical examination which occurred in March of that year, the Applicant was recommended for re-engagement for a period of six years commencing October 1996.

9. Before the most recent six-year engagement term had been completed, the Applicant's service with the RAAF was terminated on

3 March 2000.

10. It is conceded that the Applicant had served 18 years and 5 months before being discharged from service. Had he completed the six year engagement commencing October 1996 he would have served over twenty years.

11. The Applicant in the present case had originally been mustered as an Airfield Defence Guard trainee. Upon completion of his training, he was then posted to No. 2 Airfield Defence Squadron to perform rifleman duties and was classified as a Leading Aircraftsman on 23 November 1983. On 12 April 1989, the Applicant was re-mustered as a Communications Operator (COMMSOP) reverting to the Aircraftsman classification. He was then posted to Base Squadron, Darwin.

12. The Respondent claimed, and it was not disputed, that since July 1991 the Australian Defence Force (ADF) had been undergoing a program of restructuring as a result of a Government endorsement and recommendations made in a report of the inter-departmental committee on the Wrigley Review of May 1991 to release service members from performing ADF support functions which could be carried out by civilians under a Commercial Support Program (CSP). It was submitted that one of the key objectives of the program was to maximise "combat capabilities by reducing the numbers of service personnel involved in the administrative and base support functions and by using commercial and civilian support and maintenance where operationally feasible, practicable and cost-effective to do so." (Defending Australia: Defence White Paper 1994, paragraph 6.8.) It is claimed that this led to a development of a policy for determining the minimum number of members required in uniform (MRU) for the ADF and a policy for the employment of civilian personnel in support of the ADF.

13. In 1993 an employment standard code was issued on Defence Instructions (Air Force) PERS 53-2 to provide for a system of determining the current and likely future medical fitness of members for RAAF employment.

14. Following the demise of COMMSOP, the Applicant on 1 January 1994 was re-mustered as a Communications Information Systems Controller (CISCON). On 1 July 1994, he was posted to 321 Air Base Wing, Darwin.

15. In this present case, a matter of significance is a Chief of Air Staff Directive issued on 14 May 1996 (CAS Directive 3/96) which informed members of the revision of the RAAF fitness policy and introduced a minimum Employment Standard (ES) whereby every member was required as a minimum to be:

"Medically fit for long-term employment to an activated Bare Base (eg. RAAF Curtin) and able to undertake base combatant duties".

16. On 30 May 1996 the revised Defence Instructions were issued (DI(AFF) PERS 53-1 AMDT No 1) and this confirmed the minimum ES as promulgated in CAS Directive 3/96 and amongst other matters set out the intended meaning of the terms used.

17. Apart from referring to the minimum ES the revised Defence Instructions provided the following definition of `deployability':

"6. Deployability An indicative list of activities and circumstances related to deployment, together with appropriate definitions, are listed at Annex B to this Instruction. Implicit in a deployed role is the requirement for personnel to undertake either ´combat', or ´combat-related' duties; these terms are also defined at Annex B. In addition to being required to undertake all pre-operational deployment actions, including vaccinations, the highest standards which are fundamental to deployment are that the medical fitness of the individual:

a. does not require uninterrupted access to medication, specialist care, dietary concessions or medical appliances;

b. is not prone to sudden deterioration which is likely to compromise the individual's health, impose an evacuation burden or reduce operational capability;

c. should not deteriorate in the range of environmental operational conditions under which the person may be expected to function during deployment; and

d. should not be at risk owing to the pre-existing medical conditions of co-workers in the unique circumstances of the ADF workplace."

18. For the sake of completeness the definitions listed in Annexure B to the Instruction which are relevant to the present case include the following:

"2. Combat Duties. For the purposes of the DDA 1992, subsection 53(2), combat duties are defined as those duties which require, or which are likely to require, a person to commit, or participate directly in the commission of an act of violence in the event time of armed conflict. Such duties are those which are generally understood to be undertaken by combatants directly engaged in armed conflict, which may be members of the Army, Navy or Air Force. Such duties are to be distinguished from those which are ancillary to combat.

3. Combat-related Duties. For the purposes of the DDA 1992 subsection 53(2), the following duties are declared to be combat-related duties:

a. duties which require, or which are likely to require, a person to undertake training or preparation for, or in connection with, combat duties; and

b. duties which require, or which are likely to require, a person to work in support of a person performing combat duties.

4. Long Term Deployment. Long-term deployment to an activated Bare Base environment is for a period which may extend up to 12 months.

5. Bare Base Environment. A Bare Base environment is considered to have many, if not all, of the following characteristics:

a. Geographically isolated.

b. Medical support is limited to General Practitioner-level care.

c. Social/psychological support is limited.

d. Logistic support is limited or delayed.

e. Evacuation is difficult and not readily achievable.

f. Basic facilities which may include:

(1) tent/hootchie accommodation;

(2) limited field or self-catering with no special diets available, and

(3) limited provision for hygiene.

g. Conditions are arduous and include:

(1) minimum 12-hour working day, often extended to 16 hours;

(2) irregular work/rest schedules with individuals likely to become chronically fatigued; and

(3) environmental extremes.

6. Base Combatant Duties. Work requirements of an activated Bare Base are different to normal Base activities and are undertaken by officers and airmen and airwomen. They are physically and psychologically arduous and involve extended work periods of patrolling, climbing, running, digging and similar tasks undertaken in environment extremes with associated disruption and likelihood of acute fatigue. Furthermore, significant stress is also associated with combat and related activities, particularly for support personnel. These tasks require strength, endurance and full mobility, and do not allow for any disability. Further tasks associated with Base Combatant Duties include:

a. erecting large tents,

b. filling sandbags,

c. building defensive barricades,

d. digging fox holes,

e. constructing outdoor latrines and showers,

f. loading and unloading supplies from vehicles and aircraft,

g. erecting radio antennae, power poles, camouflage nets, and

h. stretcher bearing".

19. The revised Defence Instructions further provided under the heading "APPLICATION OF RAAF FITNESS POLICY" the following:

"17. ES Applicability. All personnel are allocated an ES in accordance with the definitions in DI(AF) PERS 53-2 - The Employment Standard Code. Those members performing combat duties or combat-related duties who are allocated a permanent ES below that which will permit deployment to an activated Bare Base and the undertaking of base combatant duties will, after the appropriate time allowed for cure and rehabilitation, be the subject of Employment Standard Review (ESR) action in accordance with DI(AF) PERS 53-10 - Employment Standards Committee Procedures. This action will, in considering a member's future employment, determine whether a member's duties are such that they are currently performing, or likely to perform combat or combat-related duties".

20. The Respondent submitted that apart from the minimum ES, the RAAF requires each member to maintain a level of physical fitness which is determined according to member's age group, sex and specialist trade or function. Defence Instructions (AF) PERS 53-13 Physical Fitness in the RAAF (DI AF) PERS 53-13) prescribes the standards of physical fitness of members of the RAAF, the methods of evaluating physical fitness and the programs to assist members achieving those standards.

21. On 2 May 1997, Defence Instructions (General) PERS 36-2; Australian Defence Force Policy on Individual Readiness (DI(G) PERS 36-2) was issued setting a minimum standard of individual readiness by which every member of the ADF was responsible for meeting in order to ensure readiness to deploy when required.

22. There is no dispute that in this matter the Applicant at all material times performed his duties as an Information Systems Controller or Communications Operator with due diligence and efficiency. There is no evidence to suggest, apart from some minor difficulties with shift work, that the Applicant was unable to perform his duties in a proper and workmanlike manner. In fact, on 17 January 1995 the Applicant was promoted to Corporal. He held the rank of Corporal at the time of his discharge.

23. It was explained to the Court that the role of CISCON was to provide communications and information systems support to deployed forces, higher command and national authorities. The work was performed in comfortable airconditioned centres, though during exercises the CISCON personnel may be required to live under adverse conditions and shift work is required in some work environments. It was suggested by the Respondent that all CISCON positions may be required to perform in a conflict and/or operational or field environment.

24. Between 1982 and 1984 the Applicant participated in 14 separate combat training exercises. In 1995 he participated in an exercise called "Green Exposure" where he was confined to command post duties. In 1996 and 1997 he participated in one week training exercises called "Black Cockatoo". On 8 September 1995 he completed a ground combat course as part of his training for combat duties.

25. After being diagnosed as suffering from IDD in 1989, the Applicant was reviewed by an RAAF Employment Standards Committee (ESC) and as a consequence of that review on 13 December 1990, the Applicant was allocated an ES as follows:

A4 - Medically fit for air transportation as a passenger

G5P - Unfit field/tactical deployments. Frequent shift changes/ irregular shifts. Ceremonial parades only at MO discretion.

Z5P - Medically unfit to serve at establishments that do not have ongoing access to specialist facilities.

26. It is noted that the ESC considered that the Applicant required permanent access to health care at a specialist level and his employability was limited to day shifts due to his requirement to learn to regulate his insulin.

27. On 13 August 1991, the Applicant was allocated by the ESC an ES of:

A4 - Medically fit for air transportation as a passenger

G9P - Combination of G7P - medically unfit for duties of his mustering (MUDM), and

G5P - Unfit field/tactical deployments. Frequent shift changes/ irregular shifts. Ceremonial parades only at MO discretion.

Z6P - Medically unfit to service overseas, and fit to serve in Australia only in cities which have a full range of specialist services

28. One matter in dispute is the application by the Applicant to be posted to RAAF Butterworth Malaysia on 30 June 1993. The application was refused on 4 October 1994 and it is asserted by the Respondent that it was then determined the Applicant was medically unfit for that posting. It should be noted that it would appear the basis for that decision at least in part was an advice from an appropriate person at the RAAF Base Butterworth suggesting, "There is no specialist endocrinologist in the Penang/Butterworth area or readily available in Peninsula Malaysia. There is no physician in Penang/Butterworth with an interest in endocrinology. There is no intensive care facility comparable to Australia (ie ventilation capability) in the Penang/Butterworth area should the need arise." The document refers to the Senior Medical Officer recommending therefore that a member with diabetes mellitus "is considered unsuitable, repeat unsuitable for posting/deployment to the Butterworth area". That report was disputed in a document relied upon by the Applicant said to be Datuk Dr CGA Fonseka, Chief Executive Officer of Selangor Medical Centre who refuted the suggestion concerning the availability of appropriate medical expertise in Malaysia and stated the following:

"TO WHOM IT MAY CONCERN

Specialist Care for Diabetes in Malaysia

This is to certify that Malaysia is able to offer specialists care for diabetes and all its attendant complications. E.g. retinopathy, nephropathy, neuropathy and other cardiovascular complications. Most government hospitals, all university hospitals and several private hospitals have either physicians trained in endocrinology or pure endocrinologists

Any suggestion to the contrary is untrue."

29. On 24 April 1995 the Applicant sought approval to exchange postings with another serviceman in Darwin at 2 Control and Reporting Unit (2CRU). That approval was denied on 8 May 1995 on the ground that the Applicant, according to his ES, was not medically fit to undertake field or tactical deployments and could not participate in the operations and tasks of the job at 2CRU. That job was to provide wide area and focal area surveillance and battle management or air defence control and coordination capability to meet ground and air defence operational and exercise training requirements. It included the supply of support flying operations in the Darwin/Tindal area and, when required, the Williamtown area.

30. After re-engagement on 4 March 1996, the Applicant was allocated an ES of A4 -- G5P (unfit field or tactical deployments) -- Z5P (medically unfit to serve at establishments which do not have ongoing access to specialist facilities). He was found to be "fully fit for base combatant duties".

31. On 29 May 1996, the Applicant applied to be posted to 1 Radar Surveillance Unit (1RSU) in Alice Springs. Although he was provisionally selected for the posting, the posting was then cancelled on 21 March 1997 following a determination the Applicant was unfit to undertake the duties of that posting which had included working and travelling alone to respond to out-of-hours callouts and working in remote and isolated areas with medical facilities being hours away.

32. Medical Fitness Board assessment was undertaken on 13 November 1997. An ESC record dated 25 November 1997 under the heading. "Clinical Summary" states, "This member has Insulin Dependent Diabetes. In accordance with the Surgeon General ADF recommendation, such individuals as permanently not employable. For ESC consideration."

33. The decision to discharge the Applicant was taken at a meeting of the ESC held on 3 February 1998. A minute of that meeting was prepared and appears to be signed by the Chairman and Secretary on 23 February 1998. It was decided that the Applicant was medically unfit on a permanent basis. In attendance at that committee was a representative of the Defence Health Service Branch (DHSB). It is relevant to set out an extract from the Minute as follows:

"The DHSB representative advised that CPL Wiliams was diagnosed as an Insulin Dependent Diabetic (IDD) in 1989. It is reported that control of his condition is poor mainly due to non-compliance with dietary and weight loss requirements. Specialist advice from DHSB is that the condition is unpredictable, even to those who have considerable experience with the disease and its management. Due to the nature of the condition, CPL Williams is considered to be unfit for deployment on a permanent basis as there is always the risk of an unpredictable and serious consequence if the condition becomes uncontrolled. Notwithstanding that the CPL maintains control by medication and medical assessment, unusual environmental factors come into play in a deployed situation. As CPL Williams requires immediate medical care in the event of a relapse and the RAAF has no control over environmental factors, he is considered to be non-deployable on a permanent basis. The DHSB representative further advised that IDDs require regular monitoring of their sugar levels, regular and controlled rest periods and regular meals in addition to their medication and medical support. These factors cannot be guaranteed in a deployed situation, even to a Bare Base."

34. A letter dated 26 February 1998 was forwarded to the Applicant notifying him of an ESC determination of 3 February 1998. It is appropriate to set out the relevant parts of that letter which indicate the basis upon which the decision was made to medically discharge the Applicant.

"1. You were assessed by a Medical Fitness Board (MFB) on 13 November 1997. As a result of this Board and subsequent consideration by the Employment Standards Committee ESC), it is with regret that I have to inform you that officially that your permanent medical disability, namely, Insulin Dependent Diabetes condition, has been assessed as preventing you from carrying out the full range of your Air Force duties. The ESC has therefore determined that you are medically Unfit for Further Service (MUFS). Consequently, action is to be taken to effect your discharge under the provisions of Air Force Regulation 115(n) - Medically Unfit for Further Service. Should there be no appeal, discharge is to be effected no later than four months from the date of this letter.

2. Notwithstanding the MUFS determination, you will continue to be employed, albeit with restrictions imposed by your condition, until discharge or finalisation of any appeal processes. Continued employment will be in accordance with the guidelines contained in DI(AF)PERS 7-1 and will be on a case team format with your OC and the Senior Medical Officer (SMO), and approved by Defence Health Service Branch (DHSB) (SO1 AVMED).

3. The demands of Service life dictate that serving members must be free of any disability likely to impact upon an individual's capacity to fulfil all Service responsibilities. Personnel must be able to carry out not only their specialist occupational function but also general military duties, invariably under arduous physical conditions and mental stresses associated with armed conflict. Moreover, military duties often involve lengthy periods under field conditions, in wide extremes of climate, with minimal medical support and potential for insecure lines of supply. The medical evidence in your case indicates significant restrictions on the performance of such duties with a poor prognosis for any improvement. Further, were you required to perform these duties and the full duties of your mustering, you would be at risk of aggravating your condition."

35. For the sake of completeness, I note that the Applicant appears to have exhausted all possible avenues of appeal prior to commencing a claim wherein he alleges that the decision to discharge him from the RAAF constituted unlawful discrimination. The Applicant lodged an appeal against the decision to discharge him with the ESC Appeals Committee. That appeal was heard on 13 August 1998 and was dismissed on the basis that no new evidence was presented to alter the original decision.

36. The Applicant submitted a Redress of Grievance on 21 September 1998 against the ESC decisions, which was forwarded to the Complaints Resolution Agency in Canberra on 2 October 1998. On

2 November 1999, the Deputy Chief of Air Force advised the Applicant that he was satisfied that the Medical Fitness Board and the ESC gave fair and proper consideration to accurately assessing the Applicant's medical fitness for continued employment with the RAAF and the Redress of Grievance was thereby dismissed.

37. A complaint was lodged by the Applicant with the Defence Force Ombudsman who found that on 25 January 2000 that the decision of the Deputy Chief of Air Force was reasonable, given the medical evidence.

38. The Applicant then pursued his claim on 25 August 2000 by lodging a complaint with the Human Rights and Equal Opportunity Commission (HREOC) against the Respondent, alleging unlawful discrimination. That complaint was terminated by HREOC on the ground that the delegate was satisfied that the complaint was covered under the exemption provided in s 53 of the DDA, which rendered not unlawful the actions of the ADF in discharging a member on the basis of his disability where the member performed combat or combat-related duties. The Applicant sought a re-consideration of the decision by HREOC on 3 November 2000, but then on 9 November 2000 HREOC resolved not to reconsider the decision.

Relevant legislation

39. It is necessary to consider all the relevant legislation. It should be noted that in its Statement of Facts and Contentions filed 18 April 2001 the Respondent had conceded discrimination. In those contentions the Respondent stated:

"The Respondent concedes that by discharging the Applicant from the Permanent Air Force on grounds that he was MUFS, the Respondent discriminated against the Applicant because of his disability, but it contends that the discrimination was not unlawful."

40. When the matter commenced on the first day of hearing, although the transcript is less than clear on the point, I understood Counsel for the Respondent to indicate that the instructions had changed and that the concession had been withdrawn. Again, although the transcript is not clear, I further understood however that the Respondent does not dispute that diabetes is a medical condition which would constitute a disability under the DDA. As I understood it the Respondent whilst conceding that it may be necessary for the Applicant to establish disability discrimination it was content to rely substantially upon s 53 of the DDA on the basis that if the Respondent is able to rely on that section then as a matter of law there is no need for the Court to consider the various provisions of the legislation in order to determine whether in fact unlawful discrimination has occurred.

41. The Respondent was granted leave to file an Amended Statement of Facts and Contentions which did not include the concession regarding discrimination. The document was filed on the second day of the hearing.

42. The following are relevant sections of the HREOC Act, the DDA and regulations thereof:

HUMAN RIGHTS AND EQUAL OPPORTUNITY ACT 1986

"3 Interpretation

(1) In this Act, unless the contrary intention appears:

alleged unlawful discrimination means;

(a) in relation to a complaint - the acts, omissions or practices that are alleged in the complaint and that would, if proven, constitute unlawful discrimination; and

(b) in relation to an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part IIB - the acts, omissions or practices that are alleged in the application and that would, if proven, constitute unlawful discrimination.

DISABILITY DISCRIMINATION ACT 1992

"3 Objects

The objects of this Act are:

(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.

4 Interpretation

(1) In this Act, unless the contrary intention appears:

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.

disability discrimination has the meaning given by sections 5 to 9 (inclusive).

discriminate has the meaning given by sections 5 to 9 (inclusive)".

5 Disability discrimination

(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.

6 Indirect disability discrimination

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.

10 Act done because of disability and for other reason 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

11 Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are not to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.

15 Discrimination in employment

(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 or a disability of any of that other person's associates:

(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 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.

(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises in which the first-mentioned person resides.

(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

53 Combat duties and peacekeeping services

(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."

DISABILITY DISCRIMINATION REGULATIONS 1996

Combat Duties

3 For the purposes of subsection 53(2) of the Act, the following duties are declared to be combat duties, namely, duties which require, or which are likely to require, a person to commit, or participate directly in the commission of, an act of violence in the event of armed conflict.

Combat -related Duties

4 For the purposes of subsection 53(2) of the Act, the following duties are declared to be combat-related duties:

(a) duties which require, or which are likely to require, a person to undertake training or preparation for, or in connection with, combat duties;

(b) duties which require, or which are likely to require, a person to work in support of a person performing combat duties."

Applicant's evidence

43. The Applicant gave evidence and adopted Affidavits sworn by him on 16 November 2000 and 20 February 2001. The evidence and Affidavit material confirmed the background to which I have already referred.

44. Essentially the Applicant described his duties as being tasks which may be regarded as Communications Information Systems Controller. He described how in that position he would distribute messages from the RAAF Base Darwin to appropriate departments or people. Material would sometimes involve classified information. He performed those duties in Darwin from about 1990 for a period of approximately seven years. In late 1997 the Applicant started performing duties which he described as Information Technology and that this involved troubleshooting and problem solving issues with software or hardware for the users of the RAAF Base Darwin and on a couple of occasions he attended the Royal Australian Navy Base at HMAS Coonawarra. One of the Applicant's main duties in the Information Technology area was the implementation of a network system for the RAAF Base.

45. When he received information in February 1998 that he had been declared medically unfit for further service the Applicant said that he was "quite shocked, upset disappointed". He stated that he "couldn't believe after so many years service to the RAAF that you can just be treated so poorly". He otherwise described the appeal process to which I have already referred. After discharge on 3 May 2000 the Applicant described employment which he had obtained which is not directly relevant to the issue currently under consideration. He is currently a storeman with the Northern Territory police.

46. In relation to the effect of diabetes upon his ability to perform duties with the RAAF, the Applicant stated, "Diabetes has never inconvenienced me at any time and I think that has been documented by my boss in the IT field". During the course of his evidence the Court asked the witness, "You say never caused you difficulties with any aspect of your work that you were required to perform in the RAAF?" The Applicant answered, "Not ever. Never indeed - when I say that, I have never had a hypoglycaemia case. I have never needed say instant medical treatment or assistance in that sense. So I have been able to go to work every day, do my job and go home just like a normal RAAF employee."

47. The Applicant is required to take insulin and self-administers that by the use of a syringe. He described how he self-administers the insulin prior to breakfast and it is administered to the stomach. The syringe has a small needle of approximately one centimetre in length. The Applicant self-administers the insulin three times a day usually before meals. The process takes 10 seconds and after completed the Applicant ensures that the syringe is rendered useless and disposed of correctly. Apart from the self administration of insulin prior to meals the Applicant when asked about any other routines which need to be followed as a diabetic stated, "You have just got to monitor your health as in the type of food you eat. You want to eat good healthy food. I maintain sport for fitness's health is, fitness or running - some sort of activity as a major part of maintaining your health, lifestyle and not having complications occur." He does a sugar test three or four times a day. This is performed by the use of an implement which he called a pen and as he described it, "You stick it into your finger so you prick your finger, stick the blood on to a little strip and a machine gives you the amount of sugar in your blood. The various machines differ between how long they take, 12 to about 26/28 seconds."

48. Under cross examination the Applicant agreed that when he joined the air force he knew that he had an obligation to serve anywhere within Australia and that he would be required to serve anywhere overseas. He accepted that he had taken an oath to serve in accordance with the relevant legislation during his career with the air force and that by taking that oath he had committed himself to the possibility that he could be required to serve in the air force anywhere in Australia or overseas.

49. The Applicant agreed under cross examination that he understood there was a policy adopted within the Defence Force under which the tasks that had been performed within the Defence Force to that point were all reviewed to determine which of them could be ´civilianised'. A number of positions as a result of that review were transferred from uniform members to civilian employees. He agreed there had been a change in policy which effectively meant that all uniformed personnel who remained in the service had to be deployable which meant for air force personnel that everybody had to be physically fit for deployment to an air base and perform combat duties. He agreed under cross-examination that if he does not observe the prescribed regime of regular meals, regular insulin and monitoring that he may have some "sort of diabetic complication occur". By this he meant a ´hypoglycaemia case' where he could become unconscious.

50. The Applicant appeared to concede that over the past five years he had complained about the lack of refrigeration facilities during a ground combat course in August and September of 1995 and that he had further complained about rations not being available. Specifically he conceded that he wrote in a Minute during the course of one exercise that "for 3 days I was left wondering would I survive the exercise and due to shortage of rations and expectations of me to run around delivering messages during Wednesday and Thursday in over 30 degrees heat I expected at any time to experience a hypoglycaemia condition." He further conceded that during the course of the exercise he was able to cope due to the fact that other officers had placed him in areas where he would not be in the sun or working in the sun to thereby ensure sugar levels were not abused. That comment had apparently been written some five years earlier and when asked to further elaborate on the issue of the extent to which diabetes causes a person to be more susceptible to exposure to the sun the Applicant stated, "I think when I made that statement, that is, going back 5 years or something ago when I was less experienced as a diabetic. At the moment, like I play one day cricket in Darwin on a Sunday. That is 40 overs of running around in 30 odd degrees heat at times. So I think if I can run around the field like any other person, I don't think the sun directly affects me within say, an immediate or in a time period." The Applicant agreed that insulin is kept in a refrigerated state and that he would need access to the insulin before meals.

51. In answer to questions from the Court the Applicant indicated that when re-engaged in 1990, 1991. 1994 and 1996 that his diabetes was "alright" so that he kept being re-engaged for a short period. In relation to the issue concerning the posting to Butterworth in Malaysia, the Applicant indicated that he had been to Malaysia every year for about the last ten years and had never sought or needed to seek out medical treatment whilst visiting Malaysia. Since being diagnosed as a diabetic the Applicant has not been requested to be deployed overseas.

Respondent's evidence

Peter James Clark

52. The Respondent called Wing Commander Peter James Clark who is a medical practitioner. He adopted an affidavit which he had sworn on

8 June 2001. He gave evidence that he is professional adviser to the Air Commander Australia for the RAAF and that his job is to provide "inward professional advice which medical issues pertaining to operational deployments".

53. The witness referred to his past responsibilities which included being Director of Air Force Medicine within the Office of the Surgeon General ADF between 1995 and 1997. Part of the responsibilities in that position included representing the RAAF Health Services as a Committee member of the ESC which examined the capacity of RAAF personnel with medical conditions to be retained within the service.

54. In his Affidavit he recited the brief to the ESC setting out the minimum criteria or circumstances under which a member with IDD would be fit for deployment. He relied upon that document prepared by another witness Wing Commander Dines and applying that criteria formed the view that if an individual was unable to satisfy that criteria then any deployment of that individual to an activated Bare Base for a period of up to 12 months without properly catering for his medical condition would put the individual at an unacceptable risk of potentially serious medical complications including death. He went on to say in his Affidavit that it was his opinion that "even where measures could be taken that are practical and realistic for the circumstances to cater for insulin dependent individuals the individuals would still be at a greater risk of both short and long term complications arising from the presence and management of the condition compared to other deployed members without apparent medical conditions". The witness in his Affidavit made reference to general observations concerning military operation and relied upon his past experience in other parts of the world and this is referred to in other evidence referred to below.

55. Under cross-examination Wing Commander Clark confirmed that he was not a specialist in diabetes.

56. He referred to a posting in Rwanda as a medical practitioner where a rifle company provided security and although he had a personal weapon issued on arrival, which when he attended the hospital was locked in a secure container, and then collected it after his work had been completed in the hospital.

57. Wing Commander Clark gave evidence that the air force from time to time restricts personnel from performing certain tasks and duties because of medical conditions and explained the procedure of the Employment Standards Committee. He recalled that there was a period of approximately 12 months beyond which it needed to be considered whether an individual was ever going to get better or not.

58. In considering the role of the ESC Wing Commander Clark was asked whether one looks at the individual management regime or simply at conditions such as IDD and exclude the person from being eligible to remain in the service. He indicated that the prevailing part would be simply the analysis of the condition and a decision made that the person is no longer eligible to remain in the service. He referred to administrative inconsistencies in the past and highlighted the problem of a person such as the Applicant being employed over a period of time with a condition where it was never suggested that he should no longer be in the service but then a decision was made to categorise that person as being unfit for service. He specifically referred to a change in the deployment of Australian armed forces and mentioned examples of East Timor and Rwanda. He confirmed that Dr Howard, a specialist endocrinologist who had prepared a report indicating that the Applicant was handling shift work well and demonstrated a capacity to plan requirements in advance was in fact a medical practitioner with a long association with the military and understands what is involved in military deployments. He referred to certain medical conditions being the subject of exceptions but stated in relation to IDD, "At the end of the day, insulin dependent diabetes is probably the central medical condition where there has to the best of my knowledge never been an exception to this rule".

Amanda Jane Imrie Dines

59. Wing Commander Amanda Dines is employed as a medical practitioner at Duntroon. She adopted an affidavit sworn by her on

20 April 2001. The affidavit essentially recited the chronology of events leading up to the decision that the Applicant was medically unfit for further service. Reference was made to the fitness level prescribed under the Defence Instruction (Air Force) PERS 53-1(DI(AF) PERS 53-1) which provides that the member be medically fit for long term deployment of up to 12 months to an activated Bare Base as defined and be able to undertake combatant duties.

60. The witness confirmed that on 25 November 1997 she prepared a report for the consideration of the ESC in relation to the medical condition of the Applicant. In the clinical summary of that report the author states, "This member has insulin dependent diabetes. In accordance with the Surgeon General ADF recommendation, such individuals as permanently non deployable."

61. In her Affidavit Wing Commander Dines otherwise recites the appeal chronology following the ESC determination on 3 February 1998. Wing Commander Dines states, "From my assessment of the Applicant's health records, I do not consider that the Applicant's medical history over the period from when the Applicant was first diagnosed with IDDM to his discharge would indicate that he was medically fit for long term deployment of up to 12 months to an activated Bare Base".

62. The witness confirmed in cross-examination that as a medical practitioner she had not dealt with diabetic patients in military practice but has a number of private diabetic patients in her civilian practice. She gave evidence that insulin is now produced which does not require refrigeration. She confirmed that insulin which diabetics use is very specific and that as a medical practitioner she is not deployed with insulin as part of the normal drugs which are taken on exercises but did indicate that the range of drugs taken includes medication for people with a range of problems including gastrointestinal upsets, cold, headaches and mild allergies. The drugs include pain killing medication. She described a wide range of medical equipment which is usually taken on exercises and that the items taken depend upon an assessment made prior to departure.

63. Wing Commander Dines said she had reviewed the Applicant's medical file. She confirmed that she had never consulted the Applicant personally. When asked a number of questions about the practical consequences of a diabetic missing a meal after having taken insulin in anticipation of that meal, the witness replied, "Well you would expect that their blood sugar would dip and they would start to develop symptoms or just collapse within a matter of a few hours". She then agreed that the way around that might be to ingest some food.

64. In a general brief to the ESC prepared by Wing Commander Dines on

9 June 1998 (the brief) she notes that IDD is one of two types of diabetes, the other being non-insulin dependent. It is further noted that maintenance of blood glucose requires balancing dietary intake, physical and insulin supplementation. She refers to short term complications associated with the condition which include hyperglycaemia as a result of excessively high blood sugar and hypoglycaemic difficulties which are a result of low blood sugar following treatment with insulin or insulin producing medications. Other long term complications were referred to in the brief and it was noted that strict control of blood sugar and other cardiovascular risk factors reduce those long term complications but may increase the risk of hypoglycaemia and susceptibility to hyperglycaemia.

65. The witness confirmed in the brief that people with IDD have an absolute requirement for insulin and notes consistent with her oral evidence that insulin is now available which does not require refrigeration. In the brief she states, "Personnel must use insulin pens to be considered fit for deployment". After being injected with insulin then people with IDD have an absolute requirement for appropriate food, according to the brief, and the author states that ration packs are not suitable in the long term though they may be used for brief periods. She further states, "Personnel must be able to manage their condition whilst on rations packs and using the food usually provided on employment to be considered fit for deployment." After noting that timing of meals cannot be guaranteed on deployment the brief states, "Personnel must be able to manage their conditions with irregular meal breaks to be considered fit for deployment."

66. In relation to exercise, the brief states, "Personnel must be able to maintain control of their condition without regular exercise and with an irregular work/rest schedule to be considered fit for deployment." For the control of blood glucose the brief states, "Personnel must be able to manage their condition without frequent glucose monitoring to be considered fit for deployment."

67. The brief further provides that, "Personnel must have demonstrated their ability to manage their condition without hypoglycaemic episodes in a wide variety of conditions over a prolonged period to be considered fit for employment."

68. In the conclusion to the brief Wing Commander Dines states the following:

"1. Personnel with IDDM are more likely to be incapacitated in the deployed environment.

2. The deployed environment adversely affects the ability of personnel with IDDM to control their disease.

3. The incapacitation of personnel with IDDM may adversely affect mission completion and the safety of other personnel.

4. In exceptional circumstances, it may be acceptable to personnel who meet stringent control and stability criteria to be deployed to bases where there is

* immediate access to medical officer level care

* no realistic expectation that the individual be taken hostage, prisoner, or prevented from having access to medication, food and medical support, and

* no safety implications to the member or other personnel should the member be incapacitated."

69. Wing Commander Dines was cross-examined in relation to the medical history of the Applicant. In particular reference was made to an Employment Standard Review (ESR) which had referred to a hospital admission of the Applicant in 1995. That admission was to allow intensive intervention involving a physician and dietitian in relation to the Applicant's diabetes. In cross-examination Wing Commander Dines agreed that there was only one admission in the records which showed that it was for hypoglycaemia and apparently that occurred in 1999. She agreed that there was no evidence in the documentation that the Applicant had suffered other symptoms consistent with that condition such as thirst or excessive drinking, frequent urination or dehydration, coma or fatigue. In passing it should be noted that the ESR to which reference was made in 1995, after referring to difficulties the Applicant had experienced in the control of his diabetes, also notes that the Applicant had taken part in two "one week Black Cockatoo Ground Defence exercises" since that time with no report of difficulties."

70. Wing Commander Dines was taken to a document dated 29 January 1998 which was an Employment Standard Review referred to in the Affidavit of a witness Donna Margaret Hopkinson (Folio 320) where under the heading "Functional Disabilities" it is provided as follows:

"Excellent diabetic control and a detailed knowledge of self management is required to maintain normal function in the deployed environment. CPL Williams has not displayed these qualities and is a liability in that environment, at risk of the medical complications of hyper - and hypo - glycaemia, which can be fatal."

71. After referring to that extract the following exchange occurred between the Court and the witness:

"Am I right in saying this, that is a person had that excellent diabetic control and the detailed knowledge of self management, there would not be a problem upon going in service, is that what that suggests and if that is the case of looking here of not so much of having the condition per se but not managing it correctly? - - - That statement suggests that there are circumstances in which a diabetic might be considered fit to operate in the deploy environment. And I think that one of my summaries that I wrote in my - that is included in my affidavit also refers to the conditions under which it might be possible for a diabetic to be able to function in the deploy environment.

... As I understand it, if I read that document folio 320 combined with your brief remark then there isn't a blanket prohibition on insulin dependent diabetics continuing to be employed? - - - That is correct."

72. During the course of her evidence after expressing a view that some one with insulin dependent diabetes is not fit to be employed in an operational environment, whether the diabetes is controlled or not. The witness stated,

"In a real military operation there is too much potential for unpredictability, and that's what military operations are all about. And it is my view that some one with insulin dependent diabetes is really not in the position to be able to cope with that. If I had someone, for instance, working with me who had insulin dependent diabetes, as their Commander I would always have to be concerned about not just managing my operation but managing their condition. And I am a doctor. The other thing, I suppose - the other reason I formed that view is that I am a doctor and I am the sort of doctor that would be in the field environment. An endocrinologist would not be in the operational environment and I actually have an interest in diabetes and even I am concerned about my ability to provide the same level of safety and medical care to a diabetic as I provide to my diabetic. In my view, a diabetic is more likely to get sick if they - they might get sick from their diabetes. If they get sick for some other reason and just a normal illness, they are more likely to have a complication and have difficulties that could be life threatening. And if, heaven forbid, they get shot not only do we have to manage their gunshot wound and other injuries, but we have to also concern ourselves with the management of their diabetes on top of that. And in my view, them having diabetes places them at a significantly greater risk of dieing on the battlefield or in operation."

73. The witness agreed that this had become a more important issue since the change on the deployment standard was set back in 1996.

74. Despite the fact that Wing Commander Dines had not medically examined the Applicant she was prepared to indicate in her evidence that having looked at the medical file that the Applicant was unable over 11 years to demonstrate he had the ability to control his position or his condition to any reasonable degree. It was indicated in evidence that there is a military doctrine which provides for people to be able to get to surgery within what is called `the golden hour, or at least the golden 6 hours". I took this to mean that if someone in the context of the question was the victim of a gunshot wound then evacuation could occur to a unit with a surgical capacity to undertake operative care.

75. During the course of re-examination the witness gave evidence concerning the Applicant's haemoglobin AIC which is a measure used to give a picture of the longer term control of diabetes. The higher the haemoglobin AIC the more rapidly and more severe the long term complications of diabetes are expected to occur. Reference was made to a report from Dr Howard dated 3 June 1999 which suggested the Applicant's "recent HBA 1C of 10.7% was disappointing". The same report however goes on to say, "However, bearing in mind that he had an episode of diabetic ketoacidosis associated with a non specific gastrointestinal infection only two weeks before this blood was taken perhaps the HBA 1C does not truly reflect his averages over the last couple of months". The witness was also asked to consider a further report from Dr Howard dated 9 December 1999 where review occurred of the Applicant's HBA 1C. In that further report the doctor said, "Control seemed to be better but there are still some unexplained hypoglycaemic swings through the day, for which I cannot find adequate reason".

76. Further evidence was given by the witness in relation to the preparation for medical supplies if the witness were posted as a medical officer to an air base. Pre-packed supplies are organised, according to her evidence, from Randwick in Sydney and then forwarded to the relevant base. Insulin is not amongst the drugs which would be in the medication material. When asked what arrangements would need to be made to ensure that there was an insulin supply for an insulin dependent diabetic the witness stated,

"Well the diabetic themselves would have to have a medical check and be provided with the insulin that the diabetic was going to require for the period of the deployment. And in addition to that, we would probably - we would make plans to ensure that additional insulin above what the diabetic was programmed to need would be available, and that insulin would be of the type that the diabetic needed. So, for instance if something happened and a fridge broke down or some one dropped and broke the diabetic's insulin we would have a secondary storage in our pharmacy to provide the diabetic with a backup supply. In addition to that, in our normal emergency kit we would have to add the insulin that we would use to treat a diabetic if they required urgent surgery or became acutely unwell, because that may be different".

77. The witness described the consequences of difficulties which may arise both in short term and long term for a person suffering IDD and in particular made reference to what may happen at a Bare Base environment.

78. On the issue of storage of insulin the witness indicated that "in practical terms most diabetics that go on a trip around northern Australia probably just - you know they probably don't leave it in a hot car but they probably just carry it around in their handbag or their backpack". She then referred to the problem that the insulin may not be as effective if not stored in the correct way.

79. When asked specifically to refer to examples of deployment to a Bare Base for 12 months the witness agreed that the closest real example she would provide was in Dili which in fact involved a current deployment of 6 months. She indicated that the current military policy is to deploy for 6 months and that the 12 month policy relates to the defence of Australia. Apart from the example of Dili the witness indicated that, "When we deploy in exercise, exercises are typically between - you know - they are between 2 and about 8 weeks". Another example was given of Somalia which was not an airforce operation but rather an Army operation and was not regarded as a Bare Base.

Kelvin Loch Mitchell

80. Group Captain Mitchell is a Director of Personnel Airmen with the Department of Defence and adopted affidavits sworn by him on 3 May 2001 and 31 May 2001. In the first affidavit he produced a series of documents which assist in setting out the chronology to which I have referred. The second affidavit sworn 31 May 2001 again referred to the fitness standards of the RAAF and the implementation of those standards. He further exhibited documents which relate to the Applicant's service history.

81. In his evidence in chief Group Captain Mitchell referred to tests to be applied to determine whether a member is operationally ready. He referred to Employment Standard being sufficiently high, that is a specialist job, must be a certain standard and that they should be medically and dentally fit for deployment, physically fit for deployment, weapons qualified and individually ready. Where there are any deficiencies then he indicated that attempts would be made to correct those deficiencies and he distinguished between problems which may be beyond a member's control and those within the member's control. In relation to the Applicant he referred to the Applicant having a medical condition but being able to "perform his duties satisfactorily". He then mentioned that "Certainly after the mid 90's when the more firmer determinations were made then the issue of his deployability was brought sharply into focus".

82. Under cross-examination Group Captain Mitchell was referred to the RAAF Re-Engagement Agreement dated 4 March 1996 and in particular taken to the following passage in that document:

"If there are circumstances which prevent the airman or airwoman from carrying out their obligation to serve anywhere within Australia or overseas whenever required which have not been acknowledged by airforce office this re-engagement agreement is not to be completed and a full report is to be submitted immediately to airforce office."

83. The same passage had appeared in the 1994 Re-Engagement Agreement and this was acknowledged by the witness. As I understood his evidence he was concerned to emphasise that since 1996 there has been a change so that everybody who is ready for re-deployment actually wears an operational readiness badge. He agreed that apart from the medical condition the Applicant otherwise fulfilled all the requirements for deployment

84. When taken to (DI)(AF) PERS 53-1 Amdt No 1 and the reference to ES applicability, the witness, after being referred specifically to determination as to whether a member's duties are such that they are currently performing or likely to perform combat and combat-related duties agreed that there was a distinction to be made between those members who are performing combat duties and/or combat related duties and those who are not.

85. Under cross-examination Group Captain Mitchell agreed that the definition of a Bare Base environment makes no mention of any suggestion that meals would not be available at regular times and indeed does not actually mention the issue of food although some reference has been made to logistic support being limited or delayed and that there may be irregular work/rest schedules. It can perhaps be added that the document does refer to the result of those irregular schedules being individuals likely to become chronically fatigued.

86. Group Captain Mitchell was asked to refer to the definition of "base combatant duties" in PERS 53-1 Amdt No 1 dated 30 May 1996 which refers to the tasks requiring strength, endurance and full mobility and that those tasks "do not allow for any disability". He was asked to compare that to the more recent Defence Instructions (Air Force) issued 27 April 2002 (DI(AF) OPS 4-48 where under the definition of "base combatant duties" the words "do not allow for any disability" have been deleted. He agreed under cross-examination with the proposition that in 1996 the Air Force took the view that absolutely nobody with a disability would be able to perform base combatant duties and was then unable to explain why in the more recent document issued in the year 2000 the policy appeared to have changed. He did not think the omission of the words to which I have referred could be regarded as "some sort of slip".

87. A distinction was made between the fitness of the Applicant in relation to an ability to perform base combatant duties and whether he was fit for deployment. Group Captain Mitchell agreed that this meant that the Applicant was medically unfit for long term deployment. Group Captain Mitchell was not aware of the actual duties performed by the Applicant at the time of his discharge though he was aware that the Applicant had worked in the Information Technology support area of the RAAF Base Darwin.

88. The witness was referred to a Minute dated 17 February 2000 from Colonel Boyd addressed to the Director of Personnel Airmen and marked "Attention Flight Sergeant Nicholson". That letter is from Northern Command which is a joint organisation based in Darwin. It requested deferment of the discharge of the Applicant and stated in part the following:

"... if his date of discharge could be extended by six months to the end of August the member would be of huge benefit in covering the period in which the other services are trying to fill vacant billets. As a member of the ASJCOMMCEN, CPL Williams would not be required to deploy and the reason for his MUFFS would not have any affect on his working capacity".

89. The reason for the request it was agreed was due to a shortage of C Communications Information Systems Controllers. The request, it was agreed in evidence by Group Captain Mitchell, was denied. The witness confirmed that an operational readiness badge should now be worn by all persons in uniform save if for some temporary reason they are able to comply with the individual readiness requirements. He confirmed that it had been considered that diabetic members would not be deployed and indicated that consideration was not given to the provision of refrigeration or special packs for insulin dependent diabetics having regard to the medical advice which he interpreted as being the RAAF should not even consider deploying diabetics on to an activated Bare Base situation. In response to questions from the Court the witness indicated that he thought that the Applicant had been caught up in a general policy decision not to deploy insulin dependent diabetics. He stated, "There was a line in the sand drawn for insulin dependent diabetics but my responsibility as part of the membership of the Employment Standards Committee was to give that guidance then look at each case on its merits." He acknowledged that persons with a visual impairment who require the assistance of spectacles are one category of members who are deployed.

90. The witness referred to the facts of the present case appearing to be "an anomaly" where the Applicant had an assessment in March 1996 for the purpose of considering re-engagement which was to occur from 6 October 1996 and in the meantime a Directive on 14 May 1996 which ultimately led to the discharge of the Applicant.

Donna Margaret Hopkinson

91. An Affidavit of Donna Margaret Hopkinson sworn 2 May 2001 was received as an exhibit and the witness was not required for the purpose of cross-examination. The deponent produced relevant RAAF health records in relation to the Applicant. That material contains references by medical practitioners and the Applicant in relation to dietary and weight control. An undated comment from Dr AM Berrill states that the Applicant "has demonstrated to me that he has good insight into his condition and has an ability to self manage". Reference was made to the Applicant being overweight and Dr Berrill in the same report states, "In 1996 he was 86 kgs with a BMI of 27.5 and is presently 83 kgs which translates as a BMI of 26.5. Certainly this is a lot better than many diabetics and indeed better than many non diabetics. BMI of 26.05 is only 0.5 above upper limit of normal." It is however evident from a number of reports in the material that there had been difficulties controlling the diabetes by the Applicant and in 1997 was given advice by a psychologist in relation to dealing with the diabetes. At that time it was noted that he was playing sport regularly, specifically squash and golf and that he had planned to start playing cricket when the season starts. The report from that psychologist was dated 8 April 1997.

92. Amongst the material attached to the Affidavit of Donna Margaret Hopkinson was a Minute dated 30 April 1998 from TK Austin WGCDR. In the Minute the author states by way of comment in relation to the Applicant's appeal against the decision that he be discharged due to his IDD the following:

"In my opinion the difficulty arises from the current deployability guidance of being able to perform all reasonable military duties on an activated Bare Base for a prolonged period of time. An activated Bare Base does, in reality, have a medical support structure not unlike that on most fixed bases and has reasonable access to pharmaceutical resupply. In all by exception circumstances deployed personnel will have access to messing facilities and the work cycle would not exceed 12 hours per day for other than very short periods. While the level of physical activity may be greater than normal, there is no reason to believe that CPL Williams will not be able to adjust both his diet and insulin levels to maintain equilibrium. His track record suggests that he has been able to do this successfully over the past 9 years.

I believe that the RAAF is currently unclear as to the true standard of deployability that should be applied. Many of the criteria listed in the CAF Directive are more akin to those applicable to front line army personnel or those deployed into remote locations where conditions are extremely primitive and health support is almost non existent. Clearly the RAAF is becoming more often involved in these types of operations and I have no doubt that CPL Williams should not be deployed into these scenarios. This notwithstanding, the current stated criteria is deployment to an activated Bare Base.

... In conclusion I believe that CPL Williams is medically fit to perform his normal duties on an activated Bare Base, albeit while requiring increased access to medical support. While I have some serious reservations about his fitness to deploy into a tactical scenario other than a Bare Base, I believe he does meet the current RAAF criteria for deployability. Further, I believe that the RAAF currently does not have sufficient experience with members suffering from IDDM working in an operational scenario and permitting CPL Williams to remain on an unrestricted active service is the only way in which this experience will be gained."

Applicant's submissions

93. The Applicant submitted that IDD is a disability pursuant to s 4 of the DDA.

94. It was submitted that the Respondent treated the Applicant less favourably than a person without that disability, that is because of his diabetes he was treated less favourably than the Respondent would treat a person without the disability. As I understand it the basis upon which it is said that the Respondent has satisfied the definition of disability discrimination in s 5 of the DDA is that by discharging the Applicant due to his disability he has been treated differently from a member of the RAAF who would have been permitted to conclude his re-engagement term.

95. In the written submissions on behalf of the Applicant it was submitted that the Applicant also relies upon s 10 of the DDA if the Respondent were to assert that the decision to discharge the Applicant had been done for two or more reasons then as I understand the submission the Applicant relies upon the fact that one of the reasons for discharge is the disability of the Applicant.

96. The Applicant further relied upon indirect discrimination as defined in s 6 of the DDA.

97. In essence, however, it would seem that the Applicant's main submission is that he was the subject of unlawful discrimination by the Respondent as a result of his discharge and/or dismissal from the RAAF.

98. It was submitted that unlawful discrimination has occurred in breach of s 15 of the DDA. Reference was made to s 15(4) and the Court was invited to consider the whole of that sub-section and in particular reliance was placed on evidence to suggest that the Applicant was able to carry out the requirements of his particular employment and that services or facilities required by the Applicant arising out of his disability, whilst perhaps not being required by persons without the disability, would not be requirements the provision of which would impose an unjustifiable hardship on the Respondent. Emphasis was placed on the words "particular employment" in sub-s 4(a). I was referred to the High Court Decision in X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177 ("X v Commonwealth") where in the joint judgment of Gummow and Hayne JJ at p 208 the Court states:

"Section 15(4)(a) contains a number of elements must be taken into account in seeking to apply it. First, the enquiry 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 ´inherent requirements of the particular employment'.

The reference to ´inherent' requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to `inherent' requirements would deal with at least some, and probably all, cases which in a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work."

99. It was submitted on behalf of the Applicant that whilst he may have some difficulty in carrying out some duties including employment requiring him to be medically fit for Bare Base or combatant duties, there is no evidence of inability to actually perform that employment because he was not actually deployed to a Bare Base.

100. It was submitted that there is no essential element of the particular employment that the Applicant had been required to perform that he could not perform as a result of his disability.

101. It was submitted that the Applicant had legal capacity to perform his duties (See Qantas Airways Limited v Christie [1998] HCA 18; (1998) 193 CLR 280) ("Christie's case"). It was further submitted that there is no indispensable requirement that the Applicant could not achieve - Christie's case at p. 310 per McHugh J.

102. In the present case it was submitted that the Applicant's particular employment was as a Communications and Information Systems Controller/IT Technician. He was able to perform those duties. When considering what is meant by "particular" it was submitted by the Applicant's representative and I should have regard to the judgment of Gummow J in Christie's case where at p 314 His Honour states:

"The phrase in s 170DF(2) `the particular position' emphasises that the sub section is directed to the precise case in question, not to a general class of persons of which the employee comprises one member."

103. The Court in Christie's case was dealing with the Industrial Relations Act 1988. However, it was submitted that the passage to which I have just referred applies to the present case when considering the Disability Discrimination legislation even though the Industrial Relations legislation refers to "particular position" as opposed to "particular employment".

104. In referring to the High Court Decision in X v Commonwealth it was noted that "X" at the time of discharge was at the stage where he was completing week 5 of recruit training and that a health and safety issue had arisen in relation to his disability namely being HIV positive. It is also noteworthy in that case that prior to discharge the solider had not been allocated any employment stream or trade. This is in contrast to the present application where the Applicant had been engaged for a 15 year period and his duties specified for at least 10 years to involve quite specific tasks which were consistent during the times of his re-engagement in at least 1994 and 1996 specifically. It was argued in essence that the Applicant was involved as an information technology member of the Air Force and was perfectly able to carry out the inherent requirements of that particular employment. In the alternative even if deployed for 12 months at a Bare Base he could have managed albeit under some difficulty to comply with that requirement.

105. It was submitted that the Commonwealth must satisfy both the requirements of s 15(4)(a) and (b) and that even if the Commonwealth could show that the Applicant was unable to carry out the inherent requirements of his particular employment it must also show that it would be unjustifiably hard upon the employer to provide services or facilities in order to carry out those requirements.

106. While some reference was made to lack of control of the diabetes of the Applicant it was submitted that there had not been any event or episode other than one or two in combination with other illnesses and no suggestion that the Applicant was unable to perform duties of his particular employment or indeed that he could not, albeit with difficulty, have performed deployment duties at a Bare Base for 12 months.

107. In considering the issue of unjustifiable hardship I was referred to s 11 of the DDA and it was submitted that hardship is not simply a question of difficulty but rather as defined in the Oxford Dictionary `hardness' means "hardness of fate or circumstance, severe suffering or privation".

108. It was submitted on behalf of the Applicant that ss 15(4) and 53 create defences and that if discrimination is made out it is prime facie unlawful and is therefore incumbent upon the Commonwealth to provide evidence and bear the onus in relation to the Defences.

109. Reference was made to s 53(1)(a) as being the relevant provision in the circumstance of the present case. It was submitted that the employment, engagement or appointment must be in a position involving the performance of combat duties, combat related duties or peacekeeping service. It was argued that it is important to make the connection between the employment, the engagement, the appointment and in the position. An example was given of a fighter pilot who clearly would fall within the ambit of the provision as that person is employed or engaged or appointed as a fighter pilot which is clearly a position involving the performance of combat duties. It was submitted that the Applicant was not employed, engaged or appointed in a position involving the performance of combat duties. Indeed it was argued that his engagement in 1994 and 1996, the performance of combat duties was expressly disclaimed. It was submitted that the Applicant was not employed, engaged or appointed in a position which involved the performance of combat duties. Applying the definition of combat duties which appears in the Disability Discrimination Regulation, it was submitted that the Applicant was not employed, engaged or appointed in a position involving the performance of those duties. Hence it was argued that s 53 does not apply to the present case.

110. It was further submitted that the effect of an argument that all personnel in the RAAF are involved in combat duties or combat related duties will be to effectively apply the Defence Instruction of 30 May 1996 and this would undermine the effect of the DDA because all the RAAF needs to do is to determine that everybody is performing combat duties in some manner in order to avoid the application of the discrimination legislation. It was argued that to avoid the consequence of the DDA the RAAF needs to place a person in a position which involves the actual duties referred to in s 53. The Defence Instruction of 30 May 1996 it was submitted does not create a blanket appointment of all or employment of all persons involved in the performance of combat duties but sets minimum employment standards. It was submitted that those standards simply mean personnel have to demonstrate an ability to perform combatant duties and not necessarily that the position of all persons in the Defence Forces will involve combat duties or combat related duties.

111. It was finally submitted on behalf of the Applicant that having regard to the evidence the Commonwealth had not satisfied the Court of the matters contained in s 15(4)(b) or alternatively s 53 and that accordingly the Applicant has been discriminated against because of his disability and that that discrimination is unlawful leading to an entitlement to compensation under the DDA.

Respondent's submissions

112. The Respondent relied upon an Amended Statement of Facts and Contentions during the course of final submissions made on its behalf.

113. It was argued on behalf of the Respondent that the conduct in dismissing the Applicant was not unlawful in the circumstances because the Applicant by virtue of his disability would be unable to carry out the inherent requirements of his particular employment pursuant to s 15(4)(a) of the DDA.

114. In the alternative it was submitted the conduct was not unlawful because in order to carry out the inherent requirements of his employment the Applicant would require services or facilities that are not required by persons without a disability and the provision which impose an unjustifiable hardship on the Respondent (See DDA

s 4(4)(b)).

115. The Respondent further relied upon s 53(1)(a) of the DDA.

116. It was argued that as a serving member of the Australian Defence Force in the permanent Air Force of the Australian Air Force that the terms of the Applicant's service are governed largely by statute and regulations together with lawful directions and general orders of the Chief of Defence or the Chief of Air Force or respective delegates made from time to time. (See s 9(a) of the Defence Act 1903).

117. The Applicant, it was submitted, is bound by lawful commands of superior officers as and when they are made and he served pursuant to his oath to resist the Crown's enemies and faithfully discharge his duty according to law. Although it was conceded the Applicant was mustered to perform the function of a Communications Information Systems Controller it was said that that function was to be formed within the context of military duties of an Air Force service. Within that context of military duties the Applicant was required to be capable of being deployed for periods of up to 12 months to isolated areas with basic facilities and little support and to carry out functions or perform other functions as ordered under arduous conditions and be involved as required in combat duties which could range from guard duties to building barricades to participating in acts of violence in armed conflict. The Respondent relied upon the chronology to which I have referred and in particular made reference to the Directive given on 14 May 1996 which set the employment standard for the minimal level of fitness said to be required of every member of the RAAF which referred to earlier provides, "medically fit for long term deployment to an activated Bare Base (eg RAAF Curtin) and able to undertake base combatant duties".

118. The Respondent in submissions stressed that the 1996 Directive had not been superseded by later Directives to which the Applicant's representative had referred but indeed remains in force.

119. It was submitted that it is necessary to have regard to the nature of the business of the employer, the manner of the organisation and the circumstances in which the tasks of the employee are to be performed (see X v Commonwealth at 189-190). Reference was made to the Affidavit evidence and general propositions as in relation to the task of Australian Defence Forces including the RAAF and the requirement that each member as an essential part of military duties needs to be medically fit and capable of long term deployment at short notice, carrying out his or trade or specialist functions under the physical and mental stresses associated with armed conflict wherever he may be deployed and being involved in combat at least to defend the base at which he may be deployed.

120. Given the nature of the Air Force and the circumstances in which the Applicant was required to be capable of carrying out his tasks, the minimum employment standard set was an essential and intrinsic element of the Applicant's Air Force service and therefore it was submitted an inherent requirement of the Applicant's employment (Christie's case at p 295 per Gaudron J (with whom Brennan CJ agreed on this point( 305 per McHugh J; 318 per Gummow J).

121. On the evidence it was submitted that the Applicant was not medically fit for long term deployment to an activated Bare Base or base combatant duties because of his IDD. This was due to problems with the regular supply of insulin, difficulties even if insulin was provided in protecting it from extremes of heat which may cause degradation of the insulin, irregular breaks, arduous conditions, irregular meals, difficulty administering insulin wearing for example biological and chemical protective clothing, being placed in environments where it would be difficult to properly control IDD and risk of post injury infections and other complications for persons who suffer from IDD. It was said that there may be no medical specialist available to monitor the Applicant's condition and further that the Applicant's IDD was unstable and he had a history of difficulty in controlling his blood sugar levels and this would increase the risk of serious injury and death to the Applicant if he were to be on long term deployment.

122. The Respondent relied upon X v Commonwealth and submitted that a result of the Applicant's medical condition he would be unable to go on deployment to an activated Bare Base for long term periods of up to 12 months with reasonable safety for himself and without real risk of injury and death to himself.

123. It was noted that the regulations which defined combat duties and combat related duties commenced on 5 February 1996 and this was prior to the May 1996 Directive.

124. It was submitted on behalf of the Respondent that the RAAF could not provide services or facilities to the Applicant without unjustifiable hardship. This was in the context of the Applicant being safely deployed to the activated Bare Base on a long term basis of up to 12 months. It was said that the RAAF would have to provide regular and continuing review of a medical officer, provide specialist training for medical staff to monitor the Applicant, modify the emergency medical kit, modify requirements for pathology services, modify pharmacy supply schedule, provide increased refrigeration capacity, provide and arrange regular endocrinologist review, provide access to a dietitian, provide the Applicant with a regular supply of fresh suitable rations and confine the Applicant's work to duties involving regular rest periods and protection from extreme environmental conditions.

125. The provision of these extra facilities would constitute unjustifiable hardship and require an unreasonable amount of resources to be set aside to cater for the Applicant including provision of additional personnel, services, facilities and if those facilities were not available then there would be a risk that the Applicant could suffer permanent or serious injury due to his medical condition. In the alternative it was argued that any service or facility which would enable the Applicant's continued employment with the RAAF would necessarily result in his avoidance of the inherent requirement that he be medically fit for long term deployment to a Bare Base.

126. In relation to s 53 of the DDA it was submitted that the Respondent's decision to terminate the services of the Applicant was not unlawful because even if it were to be assumed that the termination was discriminatory and ordered because of the Applicant's disability that that discrimination occurred in connection with the Applicant's employment in the Defence Force in a position which involved the performance of combat and combat related duties (See s 53(1)(a) of the DDA). It was argued that the Applicant was in a position involving the performance of combat duties or combat related duties as defined by the regulations to which I have referred. Because following the Directives all members of the ADF are required to be involved in combat or combat related duties and to be certified as maintaining individual readiness to deploy as requested or engage in combat or combat related duties as ordered. It was submitted that before discharge the Applicant had been required and did participate in combat exercises or combat related duties and had been trained for combat duties and that prior to that discharge he had been in a position which involved performance of combat related duties.

127. It was submitted in any event that on all the evidence including medical material the Applicant's IDD was poorly controlled. It was then submitted that the ESC came to the correct conclusion based upon the evidence before it in relation to termination of the Applicant's service.

128. It was further submitted that even if I were to find that the Applicant's position involved no combat duty responsibilities that the Respondent could still rely upon Regulation 4(b) of the Disability Discrimination Regulations because the Applicant is performing his duties in the Air Force and by its nature the Air Force has a communication facility in Darwin as part of its military tasks and therefore it could be said applying the regulation the Applicant was involved in combat duties because he was a person working in support of persons performing combat duties.

129. Although s 53 had no application in the case of X v Commonwealth I was referred to p 197 of the judgment of McHugh in that case where His Honour states:

"In my opinion, s 53 simply defines an area which the Executive can remove from the jurisdiction of the Commission. The section recognises that certain exigencies apply to combat and combat related duties that are unlikely to apply to any other area of employment. For an area of activity not contained in the regulations (either because no regulations have been made or because the activity falls outside the terms of the regulation), therefore, the Commission retains its jurisdiction to test the lawfulness of an act of discrimination according to the criteria contained in the general provisions of the Act. However, once an activity falls within the ambit of a valid regulation, all enquiry as to the lawfulness of discrimination within that activity is foreclosed."

130. The Respondent submitted therefore that the Commonwealth has a good defence under s 53 of the DDA and on that basis alone the application should be dismissed. Reliance however was placed upon, as indicated earlier, s 15(4) of the DDA. It was accepted by the Respondent that an analysis of that section involves looking at both sub paragraphs (a) and (b). Reference was made to the decision of Gaudron J in Christie's case and in particular I was referred to page 295 where Her Honour says,

"A practical method of determining whether or not a requirement is an inherent requirement in the ordinary sense of that expression is to ask whether the position would be essentially the same if the requirement were dispensed with."

131. It was submitted therefore that in the present case the requirement is deployability and that that has been a requirement of the job since 1996.

132. Counsel was referred by the Court to the decision on re-engagement on 4 March 1996 which imposed a restriction that the Applicant was unfit for field and tactical employment and it was indicated that in the absence of submissions to the contrary I would conclude that would mean unfit for Bare Base deployment. Whilst conceding that that is the case it was then submitted that because of that classification after the 1996 new minimum standard the Applicant was then called on to show cause why he should be retained and as I understand it unless the restrictions in re-engagement could be lifted then he could not possibly meet the minimum employment standard. The Directive in May 1996 in any event was submitted in the circumstances takes precedence and binds all service personnel.

133. It is noted however during the course of submissions that Counsel for the Respondent submitted that "Our principle submission is that it turns on the facts of this particular case because there is no Defence Instruction or no policy of the Air Force that says that everybody who suffers from insulin dependent diabetes is incapable of deployment". It was agreed that there is no policy decision made by the RAAF specifically in relation to people suffering from IDD.

Reasoning

134. In the present case I have little difficulty in finding that the Applicant suffers from IDD and that for the purposes of the relevant definitions of the DDA this can be interpreted as a disability.

135. There is no doubt that the Applicant was discharged from the RAAF due to the disability. Whilst initially conceding that discrimination had occurred under the DDA and then relying upon s 53 of that Act it is noted that concession was withdrawn by the Respondent.

136. I find in the present case that the Applicant after being diagnosed as suffering IDD on 2 October 1989 continued to be employed with the RAAF until his services were terminated on 3 March 2000. During that period of time and indeed earlier, the Applicant had essentially performed tasks which could be described as Communications Operator and I accept his evidence that his duties were performed mostly in comfortable airconditioned centres and that there is no evidence to suggest that the Applicant performed his duties in a manner which could be described as anything other than with due diligence and efficiency. I find that the Applicant performed his duties in a proper and workmanlike manner and that on 17 January 1995 was promoted to the rank of Corporal which he retained up to the date of discharge. I accept that the Applicant has been able to attend work every day and as he described it, "Do my job and go home just like a normal RAAF employee".

137. I am satisfied that from the date upon which the Applicant was diagnosed as suffering from IDD he did have periods of time where his control of the condition was varied and difficult to manage. There is no evidence however before me that the lack of control of the condition was sufficient to suggest that the Applicant was incapable of performing his normal day to day duties as described. I also accept the evidence of the Applicant that he was able to complete combat courses as part of his training for combat duties in September 1995 and had completed one week training exercises called "Black Cockatoo" in 1996 and 1997. He was found to be fully fit for base combatant duties on 4 March 1996 though I accept that his employment standard of A4-G5P meant he was unfit for field or tactical deployment. On the material before me it is clear that the Applicant has never been selected for tactical deployment and on the balance of probabilities I find that it was unlikely that he would be so selected given the nature of his occupation up to the date of discharge. It seems to me that it is appropriate to gain some insight into the reality of the Applicant's deployment by noting that he was rejected when he applied for a posting to Malaysia albeit it on grounds which I find somewhat tenuous, that is the unavailability of appropriate medical care.

138. I find that the only change of circumstances in reality which occurred in relation to the Applicant's engagement was the introduction of the Directive issued on 14 May 1996 (CAS Directive 3/96) which introduced the minimum employment standard requiring every member as a minimum to be "medically fit for long term employment to an activated Bare Base (eg RAAF Curtain) and able to undertake base combatant duties". Consistent with my findings it is clear that whilst the Applicant was physically able to undertake base combatant duties it was the deployment to an activated Bare Base which appeared to present some difficulty.

139. In a matter of this kind it is appropriate in my view to consider each case on its merit and I accept the concession made by Counsel for the Respondent that there is no general prohibition in place which would prevent IDD members from continuing in the armed services. The condition however as a matter of practice on the evidence before me seems to have been designated as one of those conditions where there would be little compromise and that certainly appears evident from the material before me concerning the ESC Determination of 3 February 1998. As stated by Group Captain Mitchell "There was a line in the sand drawn for insulin dependent diabetics".

140. In my view it is relevant in applications of this kind to bear in mind the object of the DDA which includes elimination as far as possible of discrimination against persons on the ground of disability in the area of work. There is no suggestion that the Commonwealth of Australia and/or its armed forces are automatically excluded from the operation of the legislation and the achievement of its objects.

141. I find that in the present case there has been for the purposes of the DDA discrimination based upon the Applicant's disability in that he was not re-engaged and indeed was dismissed from the service due to his disability and to that extent was treated less favourably than a person without a disability. The issue which has to be resolved is whether the disability discrimination which I have found has been unlawful.

142. It is clear to me that throughout his employment with the RAAF the Applicant, apart from some training and a few exercises, has not been engaged in activities which could properly be described as combat duties or combat related duties save and except that it might be said that in his position involving communications he was at least involved indirectly in supporting other persons who were performing combat duties.

143. In a case of this kind it is my view that one should not approach the task in a narrow and unduly legalistic manner. If one were to interpret combat related duties as including all activities which involved support of a person performing combat duties then it would clearly cover the whole of the Australian Defence Forces. This would effectively mean that the definition set out in the Disability Discrimination Regulations would be all encompassing and would not provide for any discretion for the Court to exercise in relation to what might be alleged as unlawful discrimination arising under the DDA.

144. It is clear in my view discrimination in employment pursuant to s 15 of the DDA provides that discrimination is unlawful where an employer discriminates against an employee on the ground of the employee's disability by dismissing the employee. Section 15(4) may be relied upon by the Respondent where the person is already employed if it can be established that because of the disability the person would be unable to carry out the inherent requirements of the particular employment or in order to carry out those requirements would 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.

145. In the present case I accept that it is appropriate to look specifically at the inherent requirements of the particular employment which the Applicant had performed prior to discharge. It is clear in my view that whilst there may have been a Directive concerning deployment to a Bare Base facility which may have involved combat or combat-related duties, the finding which is open to me as a matter of fact in the present case is that that was not an inherent requirement of the particular employment of this Applicant. It had not in fact been an inherent requirement of the particular employment throughout the period of the Applicant's engagement with the RAAF in the communications/ information technology occupation. It is clear on the evidence before me that there is no immediate prospect and nor has there been a past prospect of the Applicant being posted overseas and/or deployed to a Bare Base facility for 12 months. Indeed there does not appear to be any current posting for that period of time as the current postings are for a 6 month period and that is for specific personnel.

146. On the material before me I am not prepared to find that in analysing the particular employment of this Applicant that there are inherent requirements of that employment that he should perform combat or combat related duties in any real or actual day to day sense. At its highest there is a requirement or minimum employment standard which has been artificially imposed on all defence personnel which cannot in my view simply apply to each and every occupation regardless of the practical day to day reality of the inherent requirements of the particular employment of the member concerned. Whilst I note the evidence of Wing Commander Clark in relation to specific postings overseas including East Timor and Rwanda, I do not regard that evidence as particularly relevant to the specific circumstances of the employment of the Applicant. It is however consistent with the general thrust of submissions made for and on behalf of the Respondent, which I reject, that the theoretical potential requirements of members of the RAAF should be used as a basis upon which an analysis of the particular employment and inherent requirements of the particular employment can be assessed for this Applicant.

147. Hence in my view it is open for this Court to find and I do so find that combat or combat related duties were not an inherent requirement of this particular employment. The Applicant was engaged and re-engaged for that employment and indeed remained in that employment on and after 1996. He had received a promotion during the course of his employment and there is no evidence to suggest that he was not capable of continuing to perform the inherent requirements of his particular employment. The Minute dated 30 April 1998 from TK Austin (WGCDR) in my view accurately assesses the capacity of the Applicant. The author there stated, as indicated earlier in this judgment, that he believed "CPL Williams is medically fit to perform his normal duties on an activated Bare Base, albeit while requiring increased access to medical support". The author goes on to state, although he has some serious reservations about the fitness to deploy the Applicant in a tactical scenario other than a Bare Base that he believes he "does meet the current RAAF criteria for deployability". In a practical sense based upon the evidence before me that conclusion appears valid.

148. In applying what the Court said in X v Commonwealth in relation to

s 15(4) it is my view that a proper assessment of the inherent requirements of the particular employment would properly lead to the conclusion that the Applicant was indeed able to satisfactorily undertake that employment and that removing the need for tactical deployment and/or deployment for up to 12 months at a Bare Base would not detract from the inherent requirements of that position. I emphasise however that when I refer to the particular position I am considering precisely the employment undertaken by the Applicant. In my view this is consistent with the passage relied upon by the Applicant from Gummow J in Christie's case at p 314 of that decision.

149. In the alternative relying upon sub-paragraph (b) of s 15(4) I find that in any event if from time to time the Applicant was required to be deployed to a Bare Base facility then the provision of facilities to enable him to properly treat and regulate his insulin dependent diabetes would not in all the circumstances impose unjustifiable hardship on the Respondent. Again, the practical reality is that in this modern age the insulin does not need to be refrigerated, the reality of the training was described by the evidence of one witness as being activity which would involve no more than 12 hours duration and this against the backdrop of an Applicant who is actively involved in sporting activities, has not had any episodes in relation to his condition which would suggest an inability to perform the deployment with appropriate and suitable precautions.

150. I do not accept in the current circumstances that to provide regular meals and/or backup supplies of insulin on the occasion when the Applicant is deployed to a Bare Base facility would involve an unjustifiable hardship on the employer.

151. Therefore even if I were to find that the inherent requirements of the particular employment did involve deployment to a Bare Base facility and thereby involve combat or combat related duties then I am prepared to find on the material before me that sub-paragraph (b) of

s 15(4) of the DDA applies. It is appropriate to have regard to a further passage from X v Commonwealth where McHugh J stated at p 190 the following:

"Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the sub-section is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15."

152. Applying what McHugh J said in X v Commonwealth to the present case I have concluded that the Applicant was able to carry out the inherent requirements of his particular employment. If I am wrong about that then I do not accept that in the present case unjustifiable hardship would be suffered by the employer in making services or facilities available to the Applicant to ensure control of his diabetes on occasions where he may be deployed to a Bare Base facility. Certainly there is no suggestion of hardship during the course of the Applicant's normal employment in the airconditioned facilities at Darwin where the Applicant clearly had the capacity to self manage his condition despite fluctuations from time to time which would lead to a conclusion that there was not good control throughout the whole period of time after which the condition had been diagnosed.

153. In relation to s 53(1)(a) of the DDA it is clear from the decision of

X v Commonwealth that that section is not an exclusive code concerning discrimination against employees of the Defence Force. Although it defines an area where the executive can remove from the jurisdiction of the Human Rights and Equal Opportunity Commission that it is still appropriate to make an assessment of the reality as to whether or not the member, and in particular that the Applicant in the present case in truth and in fact can be described as a person in a position involving the performance of combat duties, combat related duties or peacekeeping services having regarding to the relevant definitions. To conclude that any work in support of persons performing combat duties would encompass the activities of the Applicant and thereby remove from the jurisdiction of this Court the application of the discrimination provision of the DDA in my view is too general having regard to my findings of fact as to the reality of the Applicant's employment.

154. It is apparent to me having regard to the chronology of events that there does indeed appear to be some difficulty encountered by the RAAF in dealing with a scheme which appears to encourage employment of civilians to perform tasks which were otherwise performed by RAAF members. In seeking to achieve that objective little or no consideration has been given to accommodate existing members who may after enlistment be diagnosed with a condition which could be regarded as a disability. To apply a `blanket' immunity from the application of the DDA simply on the basis of a general interpretation of combat related duties would be inconsistent with the day to day reality of the Applicant's inherent requirements of his particular employment in my view is not sustainable. If that were the case then s 53 would only need to say that this part does not render it unlawful for a person to discriminate against another person who is employed, engaged or appointed in the Defence Forces. The section clearly contemplates the distinction between combat and non combat personnel and for the reasons stated I am not satisfied that on the evidence in this particular case that the Applicant could be regarded as a person who could be said to be in a position involving the performance of combat duties or combat related duties.

Conclusion

155. Accordingly it follows that I should find that by dismissing the Applicant the Respondent did so on the basis of the Applicant's disability namely IDD and in contravention of the DDA has committed an act of unlawful discrimination.

156. It has been agreed that I shall deal separately with the issue of compensation, if any, which may arise from this decision.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 June 2002