X v The Commonwealth [1999] HCA 63

High Court of Australia Gleeson CJ McHugh, Gummow, Kirby, Hayne and Callinan JJ X v The Commonwealth (B53/1998) [1999] HCA 63

Summary CATCHWORDS X v The Commonwealth Discrimination law - Disability discrimination - Appellant discharged from army on account of HIV-positive status - Discrimination admitted - Discrimination alleged to be lawful - Appellant alleged to be unable to carry out the inherent requirements of the particular employment - Meaning of "inherent requirements of the particular employment" in s 15(4)(a) of the Disability Discrimination Act 1992 (Cth) - Whether appellant "unable" to perform inherent requirements with reasonable safety. Discrimination law - Disability discrimination - Infectious disease - Whether s 48 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination on account of an infectious disease is lawful. Discrimination law - Disability discrimination - "Combat duties" and "combat-related duties" - Whether s 53 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination in relation to "combat duties" and "combat-related duties" is lawful. Administrative law - Application for order of review - Error of law - Whether applicant must show a different result was inevitable or merely open if no error was made. Words and phrases - "inherent requirements", "unable to perform". Administrative Decisions (Judicial Review) Act 1977, ss 5(1)(f), 16(1). Defence Force Discipline Act 1982 (Cth), ss 3(1) and 29(1). Disability Discrimination Act 1992 (Cth), ss 5, 15(2)(c), 15(4), 44(1), 48, 53. ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

2 December 1999 Gleeson CJ.

1. This is an appeal from the Full Court of the Federal Court of Australia. That Court (Burchett, Drummond and Mansfield JJ) [1] , allowing an appeal from Cooper J at first instance [2] , made an order setting aside a decision of the second respondent, the Human Rights and Equal Opportunity Commission, and remitted the matter to the Commission for further consideration.