Federal Court of Australia Praljak v Department of Defence [2021] FCA 1668 File number: QUD 233 of 2021 Judgment of: LOGAN J Date of judgment: 14 December 2021 Catchwords: ADMINISTRATIVE LAW – separate question – application for leave under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – where applicant's application to join the Australian Defence Forces refused on basis of medical ineligibility – where applicant claimed discrimination – whether either or each of s 53 or s 21A of the Disability Discrimination Act 1992 (Cth) allow for the discrimination subject of the application – where applicant has admitted permanent lower back condition and mental conditions – where evidence shows that all positions in Australian Defence Forces requires particular physical demands – where case has no merit – leave refused Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH, 46PO Disability Discrimination Act 1992 (Cth) ss 21A, 53 Motor Accidents Act 1988 (NSW) s 52 Cases cited: Catholic Education Office v Clarke (2004) 138 FCR 121 Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436 James v WorkPower Inc [2018] FCA 2083 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Salido v Nominal Defendant (1993) 32 NSWLR 524 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 14 December 2021 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr JAS Ford Solicitor for the Respondents: Norton Rose Fulbright ORDERS QUD 233 of 2021 BETWEEN: ADRIAN PRALJAK Applicant AND: COMMONWEALTH OF AUSTRALIA DEPARTMENT OF DEFENCE First Respondent CAPTAIN JE NOONAN Second Respondent order made by: LOGAN J DATE OF ORDER: 14 DECEMBER 2021 THE COURT ORDERS THAT: 1. Leave pursuant to s 46PO(3A) of the Australia Human Rights Commission Act 1986 (Cth) be refused. 2. Consequentially, the application be dismissed. 3. The applicant pay the respondents' costs of and incidental to the application, to be fixed by a Registrar if not agreed. 4. The time within which any application for leave to appeal, if available, or the filing of a notice of appeal, if such right exists, be extended to Friday, 4 February 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 In H.R. Kilbourne's work, Dr Johnson and War, the following exchange between Dr Johnson and his great companion, Boswell, is related: We talked of War. JOHNSON. "Every man things meanly of himself for not having been a soldier, or not having been at sea. 'BOSWELL'. Lord Mansfield [Chief Justice of England] does not. 'JOHNSON'. Sir, if Lord Mansfield were in a company of General Officers and Admirals who have been in service, he would shrink; he'd wish to creep under the table … No, Sir, were Socrates and Charles the Twelfth of Sweden both present in any company, and Socrates to say, "Follow me, and hear a lecture in philosophy;" and Charles, laying his sword, to say, "Follow me and dethrone the Czar:" a man would be ashamed to follow Socrates. Sir, the impression is universal; yet it is strange. 2 The applicant, Mr Adrian Praljak (Mr Praljak), wants to be a soldier or a sailor or an airman. He has attempted on many occasions to fulfil that wish. On each occasion his application for recruitment has been declined. One may trace Mr Praljak's interest in becoming a member of the Australian Defence Force as far back as an application he made in July 2001 to join the Royal Australian Air Force as a pilot. That particular application was rejected on the basis that he had not then finished year 12 of high school. 3 The subsequent history of Mr Praljak's endeavours to become a member of the Australian Defence Force is related in an affidavit made by the second respondent, Captain Jan Noonan CSC and Bar, RAN. Captain Noonan presently holds the appointment of Director, Military Recruiting for the Australia Defence Force. 4 Mr Praljak's most recent application to become a member of the Australian Defence Force was made on 12 August 2020. After some refinement, the focus of that application became recruitment for the purpose of engagement as a chef in either the Royal Australian Air Force (RAAF) or Royal Australian Navy; aviation ground crew, RAAF; and Army, (other ranks) non-technical roles. On 9 September 2020, and on the basis of answers as to his medical condition furnished in a questionnaire completed by him, he was assessed as Medical Class 4Q. That resulted in his recruitment application being refused. He appealed against that decision via internal review processes for which the Department of Defence recruiting policy provided. That yielded confirmation of the refusal decision, as did a further internal review appeal on 14 September 2020. 5 A sequel to this was that on 24 September 2020, Captain Noonan wrote to Mr Praljak advising that there was nothing further that could be undertaken in terms of his successful recruitment into the Australian Defence Force. In effect, his recruitment prospects were treated as conclusively barred. On 11 November 2020, Mr Praljak challenged this particular decision by way of representations to various senior officers within the Australian Defence Force. The response though, communicated via Captain Noonan, was that he was medically unfit for service in the Australian Defence Force. 6 In turn, a sequel to this was that on 13 November 2020 Mr Praljak lodged a complaint with the Australian Human Rights Commission. In that complaint he alleged disability discrimination contrary to the Disability Discrimination Act 1992 (Cth) by the Commonwealth, to which Captain Noonan was a party. After consideration within the Human Rights Commission, a view was reached on 18 June 2021 by a delegate of the President that Mr Praljak's complaint should be terminated pursuant to s 46PH(1)(a) of the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act). 7 On 12 July 2021, Mr Praljak filed an originating application in this Court in which he sought an exercise of Commonwealth judicial power to determine whether or not there had been unlawful discrimination in terms of the complaint which he made. Section 46PO(3A)(a) provides that an originating application of the present kind shall not be made unless the court concerned grants leave to make the application. On 19 October 2021, I directed that the question as to whether leave is required under s 46PO of the Australian Human Rights Commission Act for the making of the present application, and if so, whether such leave be granted be heard as a separate question. 8 There was no particular controversy today as to whether or not leave was required. The question at issue was whether leave should be granted. 9 The Human Rights Commission Act itself does not prescribe any criteria relevant to a consideration of whether or not to grant leave. There has been some earlier judicial consideration of what is entailed in deciding whether or not to grant leave. The relevant cases are Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436 (Eastman) and James v WorkPower Inc [2018] FCA 2083 (James v WorkPower). 10 In Eastman, Judge Cameron found assistance by analogy in a judgment of the New South Wales Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524 (Salido). In that case, it fell to the Court of Appeal to determine the meaning and effect of a provision in the Motor Accidents Act 1988 (NSW), s 52(4), by which, by leave, a particular limitation period might be extended. The then Chief Justice, Gleeson CJ, at 530, observed: There being no positive indication of the considerations on which a grant or refusal of leave is to depend, the limits of the discretion are to be found in the subject matter, and the scope and purpose, of the statute. R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at 49, O'Sullivan v Farrer (1989) 168 CLR 210, at 216. The other judges constituting the Court of Appeal, Kirby P and Powell JA, did not, as I read their Honour's judgments, give any grant of specificity to the observation made by the Chief Justice in terms of what fell off for consideration. In particular, Powell JA observed, at 541, that the question was: [If] so, whether, having regard to all the circumstances of the case, it is fair and just to grant, or to refuse, the application. 11 In James v WorkPower, Mortimer J stated, at [31]: Like other judicial discretions, empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena, see rules 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth)), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary according to the nature of the power in issue, and the circumstances which give rise to a request for its exercise. 12 Her Honour added, at [32]: The purpose of the leave discretion, taking into accounts its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by section 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission. 13 Though her Honour elaborated thereafter upon considerations arising from the text and structure of part IIB of the Human Rights Commission Act, that was to the end, as I read her Honour's reasons for judgment, of a conclusion that leave ought not to be granted unless a complaint is reasonably arguable: see [37]. I do not apprehend in that regard any difference as between the conclusion reached by Mortimer J, and that to which Cameron FCJ in Eastman. 14 The observation which Gleeson CJ made in Salido anticipates, perhaps not by coincidence, the authoritative contemporary statement in relation to statutory construction made by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 15 In my view, it is for Mr Praljak as the applicant to demonstrate that his case enjoys a sufficient prospect of success to warrant a grant of leave. He will not succeed in doing that unless he shows that the case is reasonably arguable. In James v WorkPower, Mortimer J sounded a cautionary note, with which I respectfully agree, in relation to leave applications. Her Honour stated at [39]: As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules. 16 That said, the parties to a particular proceeding may conceive it to be in their respective forensic interests to promote the disposition of a leave application on a particular basis. Each party in this proceeding promoted the disposition of the leave application on the basis that account should be taken of particular medical reports in evidence concerning Mr Praljak's condition, as well as a comprehensive affidavit made by Captain Noonan in relation to the particular requirements of contemporary service in the Australian Defence Force. Further, and without objection, Captain Noonan was cross-examined by Mr Praljak upon that affidavit. Whilst that course is not one which may be apt for every leave application, each party considered it to be apt for this particular leave application. In effect, the Commonwealth – and I use that term collectively to include Captain Noonan – exposed comprehensively its factual hand. Mr Praljak, in effect, asked me to assume that the evidence that he would lead would be that found in report of a well-credentialed psychologist, Dr Ashton. 17 The precise nature of the grounds of complaint, is not, with respect, altogether easy to discern from the originating application as pleaded. The grounds of complaint as pleaded are these: The Applicant claims that: 1. Firstly, I would like to outline the ADF values and behaviours, stated on the ADF website: Defence Values | About | Department of Defence Defence Values Our Values Service: The selflessness of character to place the security and interests of our nation and its people ahead of my own. Courage: The strength of character to say and do the right thing, always, especially in the face of adversity. Respect: The humanity of character to value others and treat them with dignity. Integrity: The consistency of character to align my thoughts, words and actions to do what is right. Excellence: The willingness of character to strive each day to be the best I can be, both professionally and personally. Our Behaviours To live Our Values I will: • Act with purpose for Defence and the nation. • Be adaptable, innovative and agile. • Collaborate and be team-focused. • Be accountable and trustworthy. • Reflect, learn and improve. • Be inclusive and value others. 2. I would like to work for the ADF. I believe that I have skills and an attitude that the ADF and my country would be proud of. I note that the ADF will find positions already for those members who have become disabled during their service to the ADF/Australia. However, I do not think that it is fair to discriminate of prejudice people who already have a disability, from being able to work for the ADF. Discriminating against those with a disability from working for the ADF in adjusted and adapted roles, where suitable, would contradict the ADF values of: being adaptive, innovative and agile, being reflective, and to learn and improve, and being inclusive and valuing others, and values of; Courage, respect, integrity, excellence. These values are not just for the members of the organization, but the ADF as an organization as a whole. In not working towards accepting people such as myself to work for the ADF, the ADF contradicts its very own values. The options would be to get rid of the values, or to continue to live and act by those values and make positive change. These values aren't just for when things are easy, they are a way of engaging in the world, as an organization, regardless of the challenge ahead. Our nation, the ADF must be judged on our values and living by those values. Such changes as I am proposing, will be good for people with disabilities, good for the ADF, and good for the unity and connection of Australians with this important organization that protects our country. We should all have the reasonable opportunity to serve our country within the ADF. 3. Currently, there is a window of opportunity for the ADF to make progressive change. Currently, there is a Royal commissioning into people living with disabilities and associated discriminations. This opportunity would allow the ADF to align further with their own values, and with the Commonwealth disability discrimination act 1992 (CTH) (DDA) 1992, and relevant Human Rights acts. 4. I would be very open and motivated to assist the ADF with making these adjustments as the ADF adapts to the changing requirements and perspectives of our great nation. [emphasis in original] 18 In essence, however, as I thought became apparent from Mr Praljak's submissions, as well as particular questions posed in cross-examination of Captain Noonan, Mr Praljak's grievance was that the Australian Defence Force already finds positions for particular defence members who have become disabled in the course of their defence service. That being so, there ought necessarily to follow a conclusion that, in respect of recruitment, a like consequence should follow, such that a particular position should be identified, adapted to the particular disabilities. 19 It is helpful in understanding the occasion for the institution of proceedings to identify with precision why it was that the Australian Defence Force, via Captain Noonan, refused, and will hereafter refuse, to recruit Mr Praljak. The President's delegate stated: Reasons for my decision The DDA makes it unlawful to discriminate against individuals on the ground of disability in the area of employment, including in arrangements made for the purpose of determining who should be offered employment and in determining who should be offered employment. However, the DDA also contains exemptions which say that in specific situations, treating a person differently because of their disability in employment will not be unlawful discrimination. You claim that the 2018, 2019 and 2020 decisions regarding your unsuitability for military service and the decision to 'permanently withdraw' your application for service on the basis that Defence formed the view that 'due to your permanent disabilities you are and will continue to be unfit for service', amount to unlawful disability discrimination. However, I consider that the exemptions in sections 53 and/or 21A of the DDA apply to the subject matter of your complaint. Section 53 says that it is not unlawful to discriminate against a person on the ground of his or her disability in connection with employment in the ADF in a position involving the performance of combat duties, combat-related duties or peacekeeping service. The term 'combat duties' is defined in the Disability Discrimination Regulations 2019 (Cth) as duties which require or 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. The term 'combat-related duties' is defined as duties which require, or are likely to require, a person to undertake training or preparation for, or in connection with, combat duties and/or work in support of a person performing combat duties. I consider that the positions you have identified when applying to the ADF (including Legal Officer – Royal Australian Navy Full Time, Legal Officer – Australian Army Full Time, Legal Officer – Australian Army Full Time, Chef (Cook) – Royal Australian Air Force Full Time, Chef (Maritime Logistics Chief) – Royal Australian Navy Full Time and Aviation ground Crew (Ground Crew Aircraft Support) – Australian Army Full Time) would all satisfy the definition of 'combat related duties' as set out above. Therefore, I consider that section 53 applies to the subject matter of your complaint with the effect that decisions made to decline and/or permanently withdraw your applications for entry into the ADF because of your disabilities would not be unlawful. If I am incorrect about the application of section 53 to your complaint, I also consider that Section 21A of the DDA applies. Section 21A says that it is not unlawful to discriminate against a person on the ground of their disability if the discrimination relates to particular work and because of the disability the aggrieved person, the aggrieved person would be unable to carry out the inherent requirements of the particular work even if reasonable adjustments are made for the person. The information before the Commission supports that an inherent requirement of service in the ADF is that all candidates must be able to meet minimum requirements for entry. These minimum requirements appear to include the ongoing ability to participate in and undertake (whether in training, on exercise or on deployment), arduous physical activity 'including sustained load carrying, marching, running, and other physical training activities'. It also appears from information before the Commission, including the MILPERSMAN and repeated correspondence to you from Defence regarding your applications and appeals, supports that it is an inherent requirement of service in the ADF that a person is able to be deployed to or near war zones and dangerous operational environments at short notice. It also appears to be The information before me indicates that since 2018 you have been consistently advised that your disabilities are 'incompatible' with the requirements of service in the ADF as you have been unable on successive occasions to meet the minimum requirements for entry in the ADF because of your disabilities. It is noted that in his 2019 letter to you the Director General Defence Force Recruiting advised that your 'disabling fear of heights and claustrophobia', resulting in an inability to work at height and/or in enclosed spaces as well as work in multi-level buildings 'is not compatible with service life'. In that same letter you were also advised that your disc degenerative changes mean that the changes in your spine have a "high likelihood of becoming aggravated as a result of this activity [load, carrying, marching, running and other physical activity] rendering your physically incapacitated and unable to complete tasks…as a result, this diagnosis precludes you from entry into the ADF". Finally, you were also advised that should you have a desire to contribute to defence capability, you may wish to pursue a career within the Australian Public Service. Throughout 2020 you were also informed, as a result of your applications and subsequent appeals, that your permanent disabilities are considered to be incompatible with military service. On 28 September 2020, Dr Kotie Ras wrote to you confirming that your back condition makes you permanently unfit for military service. It appears that you then continued to write to Defence, including on 11 November 2020. In that correspondence you request, 'on special grounds' a fulltime employment role for yourself within the ADF. It appears that Captain Noonan's letter to you dated 13 November 2020 was in response to your 11 November 2020 correspondence referred to above, as well as reflective of the numerous previous decisions and letters to you from members of the ADF advising you that your disabilities are not compatible with military service. In the letter to you dated 13 November 2020, Captain Noonan advises you of the following: "In light of your permanent disability due to 'vertigo, acrophobia, claustrophobia, extreme anxiety and lower back injury' I find that you are, and will continue to be, permanently unfit for military service. As such, I have directed that your application for entry into the Australian Defence Force be permanently withdrawn. This has been noted on your recruiting dossier, and is an enduring direction". I do not consider Captain Noonan's letter amounts to unlawful disability discrimination in the context of your having already been advised on repeated occasions (both by first instance decisions and on appeal) that your permanent disabilities are not compatible with military service. Given the unique nature of employment in the ADF (including the minimum entry requirements for service and training and deployment requirements), and the restrictions you have as a result of your fear of heights and claustrophobia (including the medications you are required to take) and your multilevel degenerative spine condition, I consider it to be arguable that your disabilities mean that you are unable to perform the inherent requirements of a role within the ADF. I appreciate that this may be very disappointing for you. However, on the basis of the information before me, I consider that sections 53 and 21A of the DDA apply with the effect that the decisions made in relation to your applications for service within the ADF are not unlawful. 20 The essence of the occasion for termination, a view that either or each of s 53 and s 21A of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) were applicable is also the essence of what is entailed in Mr Praljak persuading the Court that there is a case for leave. 21 In other words, it is for Mr Praljak to demonstrate that there is a sufficient case to warrant a grant of leave in respect of a complaint, in circumstances where the Disability Discrimination Act by s 53 admits of discrimination in relation to combat and combat-related roles, and also discrimination in the case of a person who is unable to meet the inherent requirements of a particular position, notwithstanding reasonable adjustment. Section 21A of the Disability Discrimination Act provides: Exception--inherent requirements Inherent requirements (1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discrimination relates to particular work (including promotion or transfer to particular work); and (b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person. (2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work: (a) the aggrieved person's past training, qualifications and experience relevant to the particular work; (b) if the aggrieved person already works for the discriminator--the aggrieved person's performance in working for the discriminator; (c) any other factor that it is reasonable to take into account. (3) For the purposes of this section, the aggrieved person works for another person if: (a) the other person employs the aggrieved person; or (b) the other person engages the aggrieved person as a commission agent; or (c) the aggrieved person works for the other person as a contract worker; or (d) the other person and the aggrieved person are members of a partnership; or (e) both of the following apply: (i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation; (ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation. Opportunities for promotion, transfer and training and registered organisations (4) This section does not apply in relation to: (a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or (b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009). 22 Section 53 of that Act provides: 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. 7 Combat duties For the purposes of the definition of combat duties in subsection 53(2) of the Act, 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 are declared to be combat duties. 8 Combat‑related duties For the purposes of the definition of combat‑related duties in 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. 23 Mr Praljak's medical conditions are just a consequence of life's vicissitudes. He has a particular form of agoraphobia which is severe in relation to his inability to tolerate being above ground level. The particular details of that condition are related in Dr Ashton's report, as well as in various defence force medical documents. In addition, Mr Praljak had the misfortune – a misfortune which can fall to any of us in quite random circumstances – of being involved in a motor vehicle accident in 2014, which has left him with a permanent lower back condition. 24 As to that back condition, in a report of 8 December 2021, a consultant orthopaedic surgeon, Dr Khursandi, has opined in relation to Mr Praljak that, with regard to prognosis, there is a likelihood that Mr Praljak would experience chronic, intermittent back pain with stiffness in the foreseeable future, similar to his back symptoms since 2014, due to his longstanding, multi-level degeneration of the lumbar spine: He has a capacity to be employed in a sedentary occupation that precludes bending, lifting, pushing, pulling, maintaining the back in certain postures for long periods of time or travelling in vehicles for long periods. 25 Captain Noonan's affidavit addresses both the impact of back issues as well as Mr Praljak's fear of heights and related antipathy for enclosed spaces. It should also be stated that her affidavit records that on more than one occasion – and the more than one occasion entails a degree of indulgence on the part of the Australia Defence Force – Mr Praljak has undertaken but failed to pass an aptitude test designed to assess those suitable for general service officer commissioned rank. That also is a factor which informed the decision which resulted in the complaint to the Human Rights Commission. 26 It is desirable to set out in full what Captain Noonan deposes to be the reasons for non-progression of Mr Praljak's recruitment application and the decision to withdraw, permanently, a consideration of any further recruitment applications. Reasons for Non-Progression and decision to withdraw Mr Praljak permanently 53. A prescribed level of medical and physical fitness is a fundamental requirement for entry to and retention in Defence. The employability and deployability of Defence members is a critical component of military capability and workforce management, which emphasises the essential physical requirements and functional capacity to perform specific tasks necessary in different operating environments. All Defence members face the possibility of deploying to or near combat zones should hostilities occur. As well as facing the possibility of service in hostile areas, Defence members participate in other forms of operational activities where a degree of personal risk still exists. Such duties include, but are not limited to, major exercises, search and rescue missions, regional disaster relief and humanitarian assistance activities. Mr Praljak's medical conditions prevent him from being able to maintain a base level of individual preparedness to be able to deploy at short notice on operations or exercises. 54. To be able to fulfil their duties, Defence members are required to undertake, to varying degrees, arduous training during initial entry courses and on an ongoing basis throughout their career. 55. While there are some 300 specific roles within Defence, all of them involve; (a) Rigorous initial and ongoing training; and (b) Being deployable to serve Defence's defence requirements. 56. I have created a table identifying the 300 or so specific ADF rotes, annexed to this affidavit and marked "JN13." In that table, in the columns headed "Aptitude", I have identified whether from Mr Praljak's most recent aptitude test results he was considered apt to be offered the role I have also identified: (a) for the Army, whether the role is a combat or combat support role; (b) whether Mr Praljak's medical assessment permits him to undertake a role. 57. Where a role is marked "not assessed," it is because there are additional testing requirements which Mr Praljak did not complete. 58. While some roles appear to be more onerous than others, when it comes to matters of medical fitness, there is a potential to be deployed for combat in all roles, and candidates must be fit to do so. Navy roles 59. All naval roles include the potential to be deployed on a ship. Most Navy personnel will be posted to a ship or fleet unit for up to two to three years at a time, every five years or so. Other ADF members (that is, non-Navy) may be posted to a ship or fleet unit for comparable timeframes only once or twice in their career. During each sea posting, ADF members can be expected to be at sea for up to eight months of the year and/or on deployment for up to six months at a time. Whilst at sea their social and psychological support is limited to that which can be provided by supervisors. Members who are likely to require more than this level of social or psychological support are therefore not suited for service in the maritime environment; 60. Typical duties associated with the maritime environment for all personnel serving at sea include: (a) baseline work and activities of daily living, sometimes in heavy sea states; (b) boat transfers from ship to ship, ship to shore, or vice versa, sometimes in heavy sea states; (c) handling heavy lines for mooring alongside, or during replenishments at sea; (d) manual stores handling, often in confined spaces; (e) damage control exercises and incidents, typically while wearing breathing apparatus with or without thick and heavy protective clothing; and (f) casualty movement during exercises and real incidents. 61. Ships consist of multiple confined workspaces, with access via large and heavy steel doors and hatches, the latter having to be opened or closed while climbing up or down steep ladders. As a general rule, members with medical or physical conditions that limit their ability to function in confined spaces or to use ladders are not suitable for service in the maritime environment. 62. All Navy personnel undertake damage control training and work, including dealing with floods, fires, toxic gas and chemical, biochemical, radiological or nuclear incidents. Other ADF members who are posted to the maritime environment may also be called upon to undertake these duties. Fighting floods entails carrying, cutting and positioning heavy timbers. Firefighting involves wearing breathing apparatus (which weighs over 20 kg), with or without thick and heavy protective clothing. Toxic gas incidents also require the wearing of breathing apparatus, while evacuating casualties through narrow doors, small hatchways and steep ladders. Chemical, biochemical, radiological or nuclear incidents entail the use of full-face masks, gloves and protective clothing. The work associated with damage control is therefore physically and psychologically demanding. 63. Restrictions that are not compatible with deployment (seagoing for all naval personnel) include: (a) If a member is unfit for climbing, they cannot ascend and descend a ladder bay on a ship. (b) If a member is unable to undertake fire-fighting activities they cannot form part of Damage Control teams on board a ship and cannot deploy. 64. So for instance, one role in the Navy is as a musician in the band. At first blush, you might think musicians would not need to be as deployable as, say, a Commando. But, at times the Navy band is deployed on ships (as are all Navy personnel). While on board, musicians have multiple duties, such as those listed in paragraph 62 above. The ship may be re-deployed to a conflict or emergency situation at a moment's notice. In that case, everyone on board needs to be prepared and ready to protect the ship and perform those potentially dangerous and arduous duties. The special arrangements of the type discussed further below simply cannot be accommodated in the type of situations which may face all Navy personnel. Army roles 65. The Australian Army operates in remote areas with limited access to support services, such as medical, dental, psychological and chaplaincy services. Army members must have no medical impediment to being able to endure the strain and fatigue of field duties and must be fit for duty anywhere. In addition to meeting the medical standards required for their military occupation they must also be able to complete training and successfully perform combat or combat-related duties. In general, personnel applying for entry to the Army will not be permitted to have any medical restrictions. Army members must be capable of being trained to undertake a forced march carrying a normal combat load (in excess of 40 kilograms) and personal weapon. Army members must also be capable of performing combat drills during or at the end of the march. They must also be able to run, climb, crawl and swim. Army personnel are required to adapt, overcome and thrive in situations of adversity, risk, complexity and danger. Army personnel may need to be deployed using one of the ADF's ship or aircraft assets. Typical duties associated with deployment include: (a) carrying heavy loads including combat backpacks for prolonged periods followed by preparation of a defensive position or base camp local defences, such as setting up tents, and field latrines; (b) intensive pushing, digging, dragging heavy equipment, climbing and filling of sandbags; (c) hard physical work including manual stores handling, frequently in confined spaces; (d) assisting with casualty evacuation (manual carrying of casualties on stretchers) during exercises and real incidents. 66. The Army have developed Physical Employment Standards for each of the Army employment categories. The Physical Employment Standards Assessment (PESA) assesses the capability of individuals to meet the minimum level of physical capacity required by Army members to perform their duties. It is a task-based assessment, which is gender and age neutral. There are two baseline standards: (a) All-corps (AC). Based on the requirements of performing a range of basic military tasks including preparing defensive positions, local patrolling, fire and movement and conducting casualty evacuation; (b) Combat arms (CA). Based on the higher physical demands of conducting combat operations, or operating in a high threat environment. This baseline is applied to most combat arms employment categories, but may also be applied for specific roles in support of combat operations. 67. All soldiers must complete the AC standard before completing recruit training at the Army Recruit Training Centre. All Army officer cadets must complete the AC standard prior to graduating from the Royal Military College - Duntroon. Specialist Service Officers, such as Legal Officers, must pass the AII-Corps within 12 months of completion of their First Appointment Course. 68. The activities undertaken in the PESA focus on the four key physical capabilities, Muscular Strength. Muscular Endurance, Aerobic Capacity, and Anaerobic Capacity. Each element has been derived from the detailed analysis of common military tasks, and bears direct relevance to the many common tasks it represents. These four activities are: (a) Weight Load March. This assessment requires members to march a specified distance with a specified load in a specified time. It tests both aerobic power and load carrying capacity. Marching with load is a common military task that is expected of all Army members. This assessment also provides coverage for all other tasks where aerobic power is the dominant capacity limiting performance. The Combat Endurance March is done with a designated 45kg load and 15 kilometres must be no faster than 2 hours 45 minutes and no slower than 3 hours. (b) Fire and Movement. The Fire and Movement assessment test the anaerobic demands in a repetitive task simulation. It assesses the ability to perform high intensity, short duration tasks that may be expected when operating as a member of a section in contact. (c) Lift and Carry. The Lift and Carry tests local muscular endurance. This assessment tests local muscular endurance. It requires Army members to carry two 22 kg jerry cans or two 22 kg kettle bells for a prescribed distance in 25 m bounds. It is based on the requirement for all Army members to be capable of conducting a stretcher carry. (d) Box lift and Place. The Box Lift and Place is a task simulation linked to the muscular strength requirement of manual material handling. This is a test of muscular strength and requires personnel to lift a box from the ground so the top of the box is level to shoulder height then lowered to the ground under control. Air Force roles 69. Air Force personnel may need to fly to establish a presence in a conflict or emergency zone. All members of the Air Force (permanent and reserve forces) must be capable of undertaking the full range of military duties expected of them. These duties include specialist occupational functions and general military duties performed under the arduous physical and mental stresses associated with armed conflict or peace keeping responsibilities. Medical fitness for general activities involves a capacity to: (a) undertake general training for, and be prepared to, engage in ground defence, including weapons proficiency; (b) undertake sustained physical effort in emergencies such as those likely to occur during operations, major disasters and in survival situations. 70. Significant stress is 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 foxholes; (e) constructing outdoor latrines and showers; (f) loading and unloading supplies from vehicles and aircraft: (g) erecting radio antennae, power poles, and camouflage nets; and (h) stretcher bearing. 71. I have not deposed to the potential combat or combat serving roles each of the 300 roles in the ADF may face, although I am happy to speak to them if required. But as a general proposition, ADF personnel need to be prepared to deploy to challenging, often unique situations, and their meeting minimum medial, fitness and other service requirements gives some assurance of their ability to meet those challenges as they arise. Back issues 72. During 2016 - 2019, on each occasion Mr Praljak completed a MHQ it was assessed by DFR medical staff that Mr Praljak's self-reported lower back problems would prevent him and place him at risk of further injury in undertaking basic military training and deployments, regardless of whatever role he might ultimately have otherwise been suitable to fill (and I make no concession that he would ultimately be suitable, other than by reason of his medical issues). 73. Health assessments at the recruitment phase ensure that operational capability is not degraded by pre-existing medical conditions that may be exacerbated by the tasks that entrants undertake during their service. For instance, entrants with pre-existing back conditions pose a capability risk for duties that entail carrying heavy packs for extended periods. Fears of heights and enclosed spaces 74. Throughout his application process, Mr Praljak has suggested that various concessions could be made to accommodate his self-reported phobias. The adjustments that Mr Praljak has proposed have included being drugged before boarding a plane and having a team of people around him to assist him and deploying to 'any country in the world' by boat. The suggestions Mr Praljak has made would require the diversion of considerable resources which, even if they were theoretically available, would divert the attention and function of other ADF personnel, reducing defence capability. Even if such adjustments could be made, it is my assessment Mr Praljak could not reliably perform typical defence duties safely in a deployed or operational setting, and he would be placing himself and others at risk, such that the relevant operation/mission may be compromised. Such arrangements in my view could not be accommodated by the ADF, and certainly not reasonably. 75. The alternative, to shelter Mr Praljak from any deployment, exercise or training involving stress on his tower back, heights, air-travel or confined spaces, to the extent of keeping him on the ground floor of a building, not only could not be accommodated but would not in any way serve the functions of the ADF, which is to have a defence capable force available to defend Australia. 76. Mr Praljak has raised the issue of concessions being made for current ADF members who become wounded or injured or developed a physical or mental illness white serving. When a serving Defence member develops limitations to their employability or deployability as a result of injury or medical condition, Defence will provide appropriate service conditions and rehabilitation support in an effort to return them to full deployability. If a Defence member becomes no longer employable or deployable, Defence will transition them to civilian life. 77. Taking into consideration Mr Praljak's phobias, including a fear of heights and confined spaces, and his lower back injury, he would be unable to fulfil the requirements that could reasonably be expected of him in his general military duties in the maritime, land or air domains. Resources 78. As I stated above, Defence receives some 70, 000 applications each year to fill around approximately 7,000 to 8,000 positions. The assessment process for recruits is very intensive. Defence has finite resources to conduct that recruitment process. 79. I made the decision to permanently note Mr Praljak as unsuitable for service following his multiple medical assessments, all of which determined he was unsuitable for service (save for his original 2002/3 application). The assessment of Mr Praljak's continual applications, in circumstances where his medical conditions appear not to have changed nor improved, diverted the resources of DRF and the ADF which in my view would be better deployed to the assessment of other candidates. 80. Even if Mr Praljak was to overcome his medical issues, that would by no means guarantee he would be a suitable candidate for any particular role, nor advance through the balance of recruiting steps which he had not yet undertaken in the approximately 19 years over which he applied for ADF entry. Entry into the ADF is competitive, and any one required role may have many applicants. 27 As against this, Mr Praljak points to views expressed by Dr Ashton in his report of 9 October 2021 in which Dr Ashton states – making it overt on the face of so doing that the points are "from a perspective of advocacy for Mr Praljak, who seeks to establish a functional workplace for himself which also utilises his skillset". The following: 1. I note that Mr Praljak would seek to gain a non-combat role, and that he has university level training in law. Regarding the inherent requirements of his potential duties, it is not clear to me that Mr Praljak would not be able to perform the duties of a non-combat based role, despite his acrophobia. However, it may require the ADF to make suitable adjustments to allow Mr Praljak to perform a meaningful role within the ADF where he can still fulfil the inherent requirements of his duties in that role. Such adjustments might include Mr Praljak being based on the ground floor. Within a suitably environment, Mr Paljak's acrophobia is unlikely to impact the inherent requirements of such a role. 2. Regarding unjustifiable hardship on the potential employer for suitable adjustments for Mr Praljak to be able to perform the inherent requirements of his potential role / duties, it appears reasonable to assume that simple adjustments could be made to assist Mr Praljak in performing his role successful. Further it appears reasonable to assume that any hardship would be very minimal in the case of Mr Praljak, and would better be described as a simple planning and logistic exercise for his location and parameters to his role. Furthermore, any such minor level of hardship may be argued as being justifiable due to it leading to Mr Praljak being able to perform the inherent requirements of his potential role, without any significant risk to other or the organisation, however, with significant fain to all parties involved. For any such perceived barrier/s to Mr Praljak being able to perform such a role while being able to perform the inherent requirements, a suitable solution be found prior to dismissing the line of inquiry. 3. Regarding non-inherent portions of the potential role, it would be reasonable to assume that a simple and clear plan could set parameters or restrictions to his potential role and duties. It may be sound to assert that any necessary non-inherent portions of a role should be statistically probable to a significant degree in his role, and that it could not be easily adjusted for to avoid, for it to carry sound logical weight. Further, the non-inherent portions of the role may not pose any significant risk to himself or others. 4. Regarding risk, there appears to be limited risk to others in regards to any impacts that Mr Praljak's acrophobia poses to his potential role, or that the limitations/adjustments to his role would have on other employees or the organisations, should his role require limitations or adjustments to allow for him to perform that inherent requirements of his potential role. 5. Regarding potential role adjustments, it could be explored if any other ADF employees have any adjustments for disabilities, and if so, could comparable measures be put in place to assist Mr Praljak perform a suitable role? The ADF likely has a department who specialises in making adjustments for employees with different; difficulties, return to work requirements, and disabilities. 6. Finally, in the spirit of inclusiveness for Australians, and within the ADF, the question may be asked: How could the ADF make reasonable adjustments to allow Mr Praljak to perform the inherent requirements of his role whilst minimising risk to himself and others? Considering the range of skills, knowledge, managed risks, and abilities of the ADF, it is difficult to imagine how the ADF is unable to make this request work from a practical and pragmatic perspective. [emphasis in original] 28 The difficulty, as I see it, in relation to a grant of leave is that there has been – and I see it as an insurmountable difficulty – an engagement of permissible discrimination. There is no doubt there has been discrimination, but on analysis, and that is offered by Captain Noonan, each of the roles within the Australian Defence Force for which Mr Praljak either specifically sought enlistment or beyond that entail particular physical demands. That is so even in respect of postings within Australia because those carry with them the contingency of deployment by air or sea. The combination of the particular disabilities which Mr Praljak has encountered make it inherently unlikely, in my view, that he could in any way succeed in proving that the discrimination was unlawful, having regard to s 53 of the Act. 29 It is also patent that there are inherent requirements of defence force service. Even, for example, those of serving as a legal officer, for which, in terms of formal, professional admission, Mr Praljak has qualified that is so, because such officers are also subject to the particular physical demands as outlined by Captain Noonan, which append to those in the Australian Army. It became apparent in oral evidence that even military chaplains must be able, if need be, to deploy, and in so doing, to engage in such tasks as latrine digging, or hard forms of field work. 30 The occasion for extensive quotation from Captain Noonan's affidavit is to demonstrate the nature and extent of the difficulty in establishing unlawful discrimination. 31 Section 21A also, in my view, presents in this case an insurmountable obstacle in relation to the prosecution of the complaint through to a hearing and determination at trial. There are just inherent requirements entailed in defence service which make, in combination, Mr Praljak's particular difficulties incapable of reasonable adjustment. 32 As to what is entailed in reasonable adjustment, the position was authoritatively stated by Sackville and Stone JJ in their joint judgment in Catholic Education Office v Clarke (2004) 138 FCR 121, at [115]. Informed by that exposition, the adjustments of the kind to which Dr Ashton refers are aspirational rather than grounded in practical reality. Of course, an adjustment must be something more than just convenient, or inconvenient, and it must be nothing more or less than reasonable. 33 But however one approaches the evidence that is likely, having regard to Dr Ashton's evidence and Mr Praljak's own evidence, the question of reasonable adjustments, there are just features, as is so apparent from Captain Noonan's evidence, of all forms of defence service, which make, in combination, Mr Praljak's particular difficulties incapable of reasonable adjustment. It is inherently unlikely that there is any case whatsoever which could be made with any reasonable prospect of success that there are reasonable adjustments. It is important to remember that the focus of the case is not on generality or a theoretical outcome, or even of outcomes in other defence services cases, but rather upon Mr Praljak's particular disabilities. 34 The test in relation to s 21A is an objective one. Approaching the case in that way, it is just not possible to see how any reasonable adjustment could be made. In these circumstances, to allow the case to proceed would be to divert unnecessarily the judicial resources of the Commonwealth. 35 There is no dishonour for Mr Praljak in such an outcome. In times of war or defence emergency, there are many callings in national defence beyond the uniformed services in respect of which Mr Praljak's intellectual attainments could be deployed to the benefit of national defence. Proof perfect of that was offered during the Second World War in the establishment of the General Communications Headquarters at Bletchley Park, which was staffed by civilians assisted by service personnel and performed, as history now records, outstanding service in relation to the derivation of electronic intelligence. But these are decisions made in the context of particular national emergencies. 36 When all is said and done, there are comprehensive particular inherent feature requirements for both combat and combat-related roles. These extend even to those that might think they are in benign postings and appointments. But when push comes to shove, those in such postings or appointments, have to pick up a rifle, dig a fire trench, and engage in physical activity. 37 It only comes to this. I do not consider that the case is one which enjoys sufficient prospects of success to warrant a grant of leave. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 16 February 2022