CITATION: Maxwell -v- Commissioner of Corrective Services & anor [2000] NSWADT 22 DIVISION: Equal Opportunity Division APPLICANT Anthony Maxwell PARTIES: 1st RESPONDENT Commissioner of Corrective Services 2nd RESPONDENT Central Sydney Area Health Service FILE NUMBER: 991021; 991022 HEARING DATES: 03/11/99, 05/11/99 SUBMISSIONS CLOSED: 11/05/1999 DATE OF DECISION: 03/13/2000 BEFORE: Britton A - Judicial Member; Farmer L - Member; Bullock S - Member APPLICATION: Age Discrimination - In work - Aiding and Abetting MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Crombie -v- Commonwealth (unreported, Human Rights and Equal Opportunity Commission 20 November 1998); Commonwealth -v- Human Rights and Equal Opportunity Commission [1998] 3 FCA; CASES CITED: QANTAS Airways Ltd -v- Christie (1998) 193 CLR 280; Jamal -v- Secretary of Department of Health (1988) 14 NSWLR 252; Commonwealth of Australia -v- The Human Rights and Equal Opportunity Commission and Bradley ("Bradley") (1998) 158 ALR 568. (1998) 193 CLR 280. 14 [1999] HCA 63 (2 December 1999); Giorgianni -v- R (1985) 185 CLR 473. APPLICANT REPRESENTATION: D Hillard, solicitor RESPONDENTS T Anderson, barrister ORDERS: 1. The first respondent pay to the applicant within 21 days of the date of judgment, damages in the sum of $40,000.; 2. The first respondent conduct a full and proper risk management assessment of the position as to the inherent requirements of ASI no 97/MO88 within six weeks of the date of judgment.; 3. The first respondent assess the applicant for the position in accordance with the findings of that inquiry within four weeks of the date the risk management assessment referred to above is received by the first respondent.; 4. The complaint against the second respondent be dismissed REASONS FOR DECISION INTRODUCTION 1 Mr Maxwell was the recommended applicant for the position of Assistant Superintendent Industrial ("ASI") – Upholstery with the Department of Corrective Services (the "Department"). However the Department declined to appoint Mr Maxwell on the grounds that he failed the eyesight component of a pre-employment medical examination conducted at the request of the Department by the second respondent, Central Sydney Area Health Service, HealthQuest ("HealthQuest"). 2 On 17 February 1998 Mr Maxwell made a complaint to the President of the Anti-Discrimination Board. The complaint was investigated. Conciliation was unsuccessful. On 16 February 1999 Mr Maxwell wrote to the Anti-Discrimination Board requesting that his complaint be referred to the Administrative Decisions Tribunal. 3 The applicant alleges that the first respondent engaged in unlawful conduct by failing to appoint Mr Maxwell, the recommended applicant, to the position of ASI (Corcover, Upholstery), Position No 97/M088 on the grounds of his disability: s 49D(1)(b) of the Anti-Discrimination Act, 1977 ("the Act"). 4 Mr Maxwell further complains that HealthQuest aided and abetted the Department in its act of discrimination. 5 The first respondent agrees that Mr Maxwell was refused employment because he failed to meet the visual acuity standard imposed on applicants for the position. They say, however, that there was no unlawful discrimination against Mr Maxwell. Firstly, they argue that the respondent was acting in compliance with the Public Sector Management Act, 1988 and regulations made pursuant to it, in refusing employment to Mr Maxwell. Secondly, they state that, in any event, Mr Maxwell is unable to meet the inherent requirements of the job for which he applied. 6 The applicant argues that the "inherent requirements" defence is not available as the First Respondent has failed to prove that the Applicant's disability prevents him from performing the inherent requirements of the position. 7 The Applicant maintains that the First Respondent cannot rely on a claim that it was acting in compliance with clause 7 of the Public Sector Management (General) Regulation, 1988 because the HealthQuest medical assessment provided insufficient information to allow the Department to make a proper assessment of whether Mr Maxwell was capable of performing the inherent requirements of the position. THE ISSUES 8 The issues for resolution in this matter are: * First, was there some discrimination against Mr Maxwell on the basis of his disability? * Second, if there was discrimination, was it based on Mr Maxwell's inability to carry out the inherent requirements of the position for which he applied? * Third, if the discrimination was based on inability to carry out the inherent requirements of the job, would the provision by the respondents of services or facilities have enabled the applicant to carry out those inherent requirements? * Fourth, if the answer to this last question were yes, would the provision of those services or facilities (over and above those provided to other employees) have caused unjustifiable hardship to the First Respondents? * Fifth, in any event, does the Anti-Discrimination Act apply to this decision? Or putting it more precisely, was the decision of the First Respondent made out of necessity to comply with requirements imposed on them by legislation or subordinate legislation? * Finally, if the Tribunal finds that the Department unlawfully discriminated against the applicant, did the Second Respondent aid and abet the First Respondent? Definitional Issues 9 Throughout the Inquiry it was apparent that the term "correctional officer" (previously known as "prison officer") was given different meanings by various witnesses. In the interests of clarity it is necessary to comment briefly on the use of these terms and the meaning the Tribunal intends to give to these terms in this decision. 10 Some witnesses interchanged the terms correctional officer, prison officer and custodial officer. 11 The Tribunal accepts the first respondent's argument, supported by s 30A of the Prisons Act, 1952 that industrial officers are also correctional officers or specialist correctional officers who work in the industrial division of correctional centres. 12 Confusion arises as there does not appear to be a commonly agreed term to describe those correctional officers who are primarily charged with custodial duties and are not industrial officers. Some witnesses referred to these officers as prison officers. 13 In this decision the term correctional officer will be used to describe both custodial and industrial officers. Custodial officer will be used to describe those correctional officers who usually work within the 'wing' of a prison and whose primary responsibility may be described as custodial duties, that is, the direct supervision and control of inmates. Industrial officer will be used to describe correctional officers who are usually employed in the prison workshop and whose primary responsibility is the occupational training of inmates. BACKGROUND 14 Much of the evidence before this Inquiry is not in dispute and is set out below. Employment history 15 The applicant was a capable and respected officer who was promoted on three occasions during his nine years of service with the Department. He has extensive experience both as a custodial and industrial officer. 16 He was employed first by the Department from March 1987 until July 1988 and later from February 1989 until March 1995 when he resigned to care for his wife who was seriously ill. 17 The applicant was employed initially as a custodial officer. He was appointed in early 1990 to the position of ASI at Parramatta Correctional Centre where he remained until mid 1993. 18 From July 1993 to October of that year he was appointed on a temporary basis to the position of Manager of Industries, Parklea Correctional Centre. In January 1994 he was appointed to a permanent position at Parklea Correctional Centre, again as Manager of Industries. In August 1994 he was transferred to the position of Manager of Industries, Parramatta Correctional Centre. 19 In October 1997, his wife having sufficiently recovered from her illness, the Applicant applied for the position of ASI (Corcover, Upholstery), position no 97/M088. This position was at a different location, Silverwater, but was essentially the same as the position he had held with the Department from 1990 to March 1996. Mr Maxwell was offered the position subject to a satisfactory medical assessment. HealthQuest Assessment 20 As the recommended applicant of the Selection Committee for the position of ASI no 97/MO88 at Silverwater Mr Maxwell submitted to a required HealthQuest medical assessment on 20 January 1998. Health Quest diagnosed Mr Maxwell's uncorrected vision as 6/24 in both eyes; corrected, 6/6, also in both eyes. This assessment was confirmed by Mr Maxwell's optometrist except that he diagnosed Mr Maxwell's uncorrected vision in his right eye to be 6/30. 21 Mr Maxwell's vision did not meet the HealthQuest minimum standard for Corrective Officers that is, no worse than 6/12 in the weaker eye, uncorrected (the "Standard"). He satisfied all other requirements of the medical examination. 22 The Department advised the applicant by letter, dated March 5 1998, that his "appointment to the position of ASI cannot proceed as HealthQuest had assessed him as unfit for the full range of custodial duties as a Correctional Officer because of reduced uncorrected vision." 23 HealthQuest had assessed Mr Maxwell's eyesight on two earlier occasions in 1986 and 1988. On both occasions his uncorrected visual acuity was 6/6 in both eyes. 24 The Department does not regularly test the eyesight levels of serving officers. The only regular testing occurs at the point of recruitment. Individual employees may be asked to submit to a medical assessment if their performance suggests that a health and fitness examination is required. 25 Had Mr Maxwell applied for Position No 97/M088 as an internal applicant he would not have been subject to a medical examination. 26 The parties agree that Mr Maxwell's uncorrected visual acuity is a disability for the purposes of the Act. THE EVIDENCE Position Description 27 Relevant extracts are set out below of the position description for ASI No 97MO88. Primary Objectives - Manage the physical, financial and human resources of the Unit to achieve production targets, quality and customer service standards, and inmate development objectives. - Identify and respond to business and commercial market opportunities as well as manage key customer relationships to ensure Business Unit plans and objectives are achieved. - To achieve its objectives, the position concentrates on: Developing the Unit's business plan Monitoring and evaluating performance and initiating recovery actions where required Organising and managing physical, financial and human resources across the Unit's activities Leading, motivating and developing Team Managers Overseeing product quality and customer service Building and maintaining customer relationships Identifying and responding to market opportunities Managing relationships within and across Centres for the benefit of inmates and the Business Unit. Duties of Correctional Officers Mr Owens 28 Mr Owens commenced with the Department as a custodial officer in 1976 and held various positions within the Department throughout his career. At the time of giving evidence he held the position of Commander, Security and Investigations. 29 According to Mr Owens, the core business of Industrial Officers and ASIs was "as much the supervision of inmates as it is the business of other correctional staff. Industrial Officers and ASIs are responsible for the care custody and control of inmates in workshops, in exactly the same way as other correctional staff working in a wing…Industrial Officers and ASIs receive the same basic training as Correctional Officers." 30 During industrial action by non-commissioned staff, Commissioned Correctional Officers such as ASIs are required to undertake correctional duties. Staffing levels are then low and it is not uncommon for emergencies to arise. Mr Mumford 31 Since commencing with the Department in 1990, Mr Mumford has held various positions at a range of correctional institutions. At the time of giving evidence he was the Senior Recruitment officer - Custodial Recruitment. 32 He cited a number of examples in his experience where Industrial Officers were required to perform what he described as "security duties". In 1990 at Cessnock Correctional Centre, then classified as medium security, inmates refused to return to their cells, emergency procedures were implemented and Industrial Officers assisted with security tasks. In 1995, while working at a minimum security centre, St Heliers, on many occasions he found it necessary to require Industrial Officers to perform security duties outside the workshops. 33 His experience was that, irrespective of classification, all inmates present an unpredictable level of risk to themselves and others. Mr Maxwell 34 The applicant gave evidence that it was his experience that an ASI was essentially a managerial position that did not involve full custodial duties. Throughout his employment with the Department as an ASI, he and other ASIs were required to 'step into the shoes' of their custodial colleagues on a regular basis only during their custodial colleagues' monthly union meetings. The prisoners were locked in their cells during these meetings. 35 The only other time ASIs were required to perform the duties of Custodial officers was when members of the Custodial officer union were on strike. This, Mr Maxwell estimated, occurred approximately three times during the course of his employment with the Department. 36 In times of staff shortages, the practice of the Department was to strip staff from the industrial workshops to perform custodial duties. This usually applied to employees in lower ranking positions only as the union representing officers including and below the rank of Overseer, the Vocational Branch, considered custodial work to be within their domain. 37 In cross-examination, Mr Maxwell admitted that, as an ASI, he would need to intervene if an assault broke out between prisoners. He volunteered that he had done so in the past; that there were tools within the workshop that could be used as weapons and that part of the job of an ASI was to maintain a watchful eye on prisoners to ensure that order was maintained and that contraband was not passed. 38 Mr Maxwell also stated that every afternoon he performed an inventory to ensure that all tools remained in the workshop. On only one occasion was a tool found to be missing and that was later found, having been misplaced inside the workshop. Mr Maxwell said he had never been disciplined about contraband being smuggled from the workshop. 39 He disagreed with Mr Owens' comment that the "core business of Industrial Officers and ASIs is as much the supervision of inmates as it is the business of other correctional staff..." or that the training provided to industrial and custodial officers was identical. He pointed out that Mr Owens had failed to mention that the inmates were locked in their cells when ASIs were required to work within the wings during industrial disputes. Mr Ruckley 40 Mr Ruckley is the Director of Correctional Services Industries (CSI) having held that position since October 1989. CSI is a business enterprise within the Department responsible for developing inmate employment opportunities. 41 In cross-examination he stated that while he did not disagree with the evidence of Messrs Owens and Mumford, he thought that it had a "certain flavour" which he did not endorse. "I wouldn't like it to be thought that a correctional industry officer in 1999 has a responsibility and a range of functions similar to what a warden did in 1901. [Mr Owens' statement] gives a flavour that we in fact have not progressed much from 1901" T45 at p17.. 42 Mr Ruckley had written to the Department's Executive Director of Human Resources in June 1998 asking that the decision not to appoint Mr Maxwell be reviewed - "Mr Maxwell has the capacities in a technical and commercial sense and has the attributes to resolve on-going problems at Silverwater Correctional Centre." 43 He agreed that that the Department currently required industrial officers to be Correctional Officers unlike "civilian" employees within the Department such as social workers, teachers and medical staff. 44 He described the position for which Mr Maxwell had applied as a middle management position. It requires a good understanding of the correctional system; significant leadership skills to motivate inmates; technical and business management skills and the ability to work with people and get the best from them. Mr Thorpe 45 Mr Thorpe has held the position of Operations Development Manager for CSI since 1989. In this position he was responsible for, among other things, staffing levels and the occupational health and safety of business units within the Department. 46 In his view the primary role of an industrial officer was to provide instruction and technical training and inmate supervision. 47 He said that unlike Custodial Officers, CSI positions were attached to nominated correctional centres. ASI, No 97M088, was a position attached solely to Silverwater, a minimum security prison. This position would be transferred only if the correctional centre closed or the market for a particular industry disappeared. In the case of a transfer, the Officer generally would be placed in an identical or similar position. 48 He answered yes to a question put by Ms Anderson as to whether he agreed with the Statements of Messrs Owens and Mumford. He agreed with the proposition that vigilance was one of the requirements of a correctional officer. Testing for Visual Acuity Messrs Ruckley, Thorpe, Owens and Mumford 49 These four witnesses gave evidence that many officers wore glasses in the course of performing their duties. Mr Ruckley estimated the number at approximately 20 per cent. This estimate was based on an informal survey undertaken by Mr Ruckley's assistant. Mr Thorpe agreed with this estimate. Messrs Owens and Mumford were unable to estimate a number. 50 All four witnesses agreed that the only eyesight testing of officers occurred before appointment. The Department did not carry out any routine or ad hoc eyesight testing of officers once they were employed. 51 Mr Owens gave evidence that two of the four serving Chief Superintendents of Industrial wear glasses. 52 Mr Thorpe said concerns within the Department about safety issues generally would be raised with him as Operations Development Officer. On no occasion had anyone raised concerns relating to officers wearing glasses. Messrs Ruckley and Owens also gave evidence that on no occasion had any one within the Department raised with them safety concerns relating to officers wearing glasses. Mr Maxwell's Visual Acuity 53 Mr Maxwell gave evidence that he had been wearing glasses at work since 1990. 54 He claimed that his glasses had never been dislodged in the course of his employment nor on any occasion was he unable to see through them for any other reason. "There was not a single occasion where I was unable to perform any of my duties because of my glasses or my reduced eyesight." Statement of Mr Maxwell,Exhibit H1at 14. 55 Messes Rutley and Thorpe had been aware that Mr Maxwell wore glasses while working but were unaware of any consequent problem relating to performance. 56 Mr Maxwell gave evidence that he wore glasses during the interview for position ASI, No 97M088. No member of the interview panel raised any concerns regarding his need to wear glasses. 57 Mr Mumford gave evidence that had Mr Maxwell taken leave without pay rather than resigned from the Department, he would not have been subject to an eyesight test as an internal applicant for the position. Dr Gapper 58 Dr Gapper is the Director of HealthQuest and the NSW Government Medical Officer and has been since 1987. She stated that, in 1993, the Department commissioned HealthQuest to undertake a job demand analysis and determine appropriate standards for pre employment medical assessments of Correctional Officers (the "1993 survey"). 59 In developing these standards she: * Reviewed a wide range of relevant written information including workers compensation statistics and position descriptions for all levels of prison officer; * Inspected five of the prisons in the Long Bay complex with the then Deputy Director, Dr Jagger; Administered a job demand questionnaire to a representative sample group at the Long Bay complex. 60 Dr Gapper said she was unaware of any means by which glasses or contact lenses could be fixed to prevent dislodgment. 61 In her opinion: * a Correctional Officer is not fit to carry out the duties of the position if their uncorrected visual acuity is worse than 6/12 in the weaker eye; * if the glasses or contact lenses of a person with visual acuity of 6/12 were dislodged, that person would be rendered unfit to carry out the duties of a Correctional Officer. Dr Jagger 62 Dr Jagger is the Director of Medical Services at Canterbury Hospital. She had held the position of Deputy Director of HealthQuest between 1990 and September 1998 and continued with HealthQuest on a part-time basis until January 1999. 63 In her opinion the duties of a Correctional Officer required vigilance at all times. Accordingly, good uncorrected visual acuity is necessary for "security, adequate identification of individuals, prompt risk identification use of firearms and evidentiary purposes." 64 She concurred with the opinions expressed by Dr Gapper that a Correctional Officer must have a minimum of 6/12 in their weaker eye to carry out their duties and that it was not possible to secure visual aids so as to guarantee against dislodgment. 65 The eyesight standard of 6/12 in the weaker eye had been in place before 1993 and was confirmed by HealthQuest as the minimum acceptable eyesight level necessary for correctional offices following the 1993 survey. The Standard is set by the World Health Organisation and is accepted internationally as the level below which there is visual impairment and disability. 66 Dr Jagger's uncorrected visual acuity was 6/24 in the left eye; 6/12 in the right, making her uncorrected vision better than Mr Maxwell's. She gave evidence that, with her glasses off, facial features were blurred at a distance of 10 feet and that she had difficulty in seeing the detail of equipment. 67 She was aware of the Department's failure to subject serving officers to regular eyesight testing. A couple of meetings had been held between HealthQuest and the Department in 1995 in an attempt to address the issue. She was unaware of any action taken by the Department as a result. 68 In answer to a question from the Tribunal, Dr Jagger said that she was troubled by the Department's failure to monitor eyesight standards amongst serving officers. However she was mindful that correctional officers were not typical of the general population, having been screened for eyesight problems at the point of recruitment. According to Dr Jagger, deterioration of distant vision will generally make itself evident by early adulthood. She agreed with the proposition put by the Tribunal that the Department was in effect deploying a risk management type strategy. 69 She was unaware of any performance problems relating to officers wearing visual aids. She did not specifically recall asking those officers wearing glasses surveyed during the 1993 survey whether they had experienced any problems carrying out their duties. She recalled some general discussion about the possibility of glasses being smashed during a fight and the consequent risk of injury. As a result HealthQuest recommended to the Department that officers wear polycarbonate lenses. Dr Mahadev 70 Dr Mahadev is employed as a Senior Medical Officer at HealthQuest. He carried out a standard pre-placement medical assessment on the applicant on 20 January 1998. 71 The chronology of the 20 January assessment was as follows: * Mr Maxwell completed a standard HealthQuest self-assessment form; * Mr Maxwell was examined by Nurse Williams who recorded her assessment on a standard HealthQuest medical examination form. She noted on the report, "job more supervisory in Industrial establishment. Needs report from optometrist"; * Mr Maxwell met and was examined by Dr Mahadev; * Immediately after this interview, Dr Mahadev discussed the assessment with Dr Gapper and at that point became aware that HealthQuest's policy required the applicant to meet their medical standards for a correctional officer. Under Nurse Williams' comments, as set out above, Dr Gapper wrote "NB needs also to meet the standards for a correctional officer"; * Noting Mr Maxwell's reduced visual acuity, Dr Mahadev completed an interim health certificate on 20 January 1998 indicating that the complainant was "temporarily unfit for duties". Mr Maxwell was referred to his local optometrist; * Dr Mahadev issued a final health assessment certificate on 13 February 1998 that assessed the complainant "Unfit for the duties of the position but fit for other tasks". Under the heading "Additional Comments" Dr Mahadev wrote "Mr Maxwell is considered unfit for the full range of custodial duties as a correctional officer because of his reduced uncorrected vision. Mr Maxwell's corrected vision is acceptable for duties of an ASI Upholstery supervising low security prisoners in an industrial setting provided the risk of his glasses being dislodged in fulfilling this role is negligible…." 72 In cross-examination Dr Mahadev conceded that when he examined Mr Maxwell, he knew little of the Applicant's work history and was unaware that he had in fact worked as an ASI. Nor was Dr Mahadev aware of the duties of the position for which Mr Maxwell had applied except in the most general sense. He had not been provided with a copy of the position description. He was aware from a document received by the Department before the examination, Request for Services, that the position was described as a correctional officer. 73 Dr Mahadev explained that he wrote on the final Health Assessment certificate that the applicant was "unfit for the duties of the position for which he applied but fit for other tasks" because he became aware that "the complainant needed to meet the health standard required for the position of correctional officer". 74 Dr Mahadev explained that he had not intended for his written comments on the final certificate (that the applicant's "corrected vision is acceptable for duties as an ASI supervising low security prisoners in an industrial setting provided the risk involved of his glasses being dislodged in this setting is negligible") to indicate the applicant was fit for those custodial duties involving supervision of prisoners and maintaining security. "On the contrary I understood that such duties were performed by the three Overseers that he would have working for him and that his supervision of prisoners would be related to the work they performed." 75 At no time during the course of his interview did he ask the applicant had he at any stage been unable to perform the duties of a correctional officer because he was wearing glasses. 76 Dr Mahadev had made no enquiries of the Department as to whether Mr Maxwell had been unable to perform the duties of his previous position because of his uncorrected vision. 77 He concurred with the opinions of his colleagues, Drs Jagger and Gapper, that a Correctional Officer needs to have a level of uncorrected visual acuity of no less than 6/12 in the weaker eye. In his opinion the risk of dislodgment of glasses was not negligible for correctional officers. 78 Dr Mahadev confirmed that Mr Maxwell would have been considered fit for the duties of the job by the HealthQuest assessment if he had not failed to meet the eyesight standard. 79 In answer to a question of the Tribunal, he replied the Department made no approaches to him in relation to modification of Mr Maxwell's duties. FINDINGS OF FACT Duties of Industrial Officers 80 An issue in dispute between the parties was the extent to which industrial officers are required to undertake "full custodial duties", that is, direct supervision of inmates without the assistance of custodial officers. Mr Maxwell claimed that the Department had overstated the extent to which industrial officers perform full custodial duties. It has been his experience that industrial officers were required to fulfil such tasks only on rare occasions. 81 This contrasts with the evidence of Mr Mumford who claimed that in his experience it was not unusual for industrial officers to be required to undertake full custodial duties. 82 It is uncontested that industrial officers are required on occasion, such as during a strike or union meetings, to fill in for custodial officers. We accept the evidence of Mr Maxwell that in such cases inmates are generally locked in their cells. 83 The inference of the evidence presented by the respondents was that industrial officers were regularly required to perform full custodial duties. The evidence advanced by the applicant suggested that such duties were peripheral. 84 While there was some conflict in the evidence on this point, the difference was essentially one of emphasis (or as Mr Rutley described it, one of "flavour"). It is self evident that it is impossible to predict accurately the extent to which an industrial officer would perform full custodial duties. This will be determined by the operational requirements of the correctional centre where the officer is located and factors outside the control of the Department, such as an industrial campaign by the union covering custodial officers, Prison Officers Vocational Branch. On balance however the Tribunal finds that full custodial duties would represent a very small proportion of the duties undertaken by industrial officers. 85 It is uncontested that industrial officers are required in the course of their "normal" duties to supervise inmates and be vigilant at all times. The Tribunal agrees with Mr Mumford's statement that the mere fact that inmates may be in an industrial workshop located outside the wing of the prison does not lessen the need for constant supervision and surveillance. Again, the difference in the evidence on this point is essentially one of emphasis. Duties of ASI, No 97M088 86 The position description supports the assertion of the witnesses for the applicant that ASI No 97/M088 is a senior management position primarily charged with "managing the physical, financial and human resources of the Unit". The incumbent is directly supervising three overseers who would be responsible primarily for inmate supervision. On limited occasions, most notably during a strike, the occupant may be required to fill in for custodial officers. The extent to which this may be necessary cannot be measured precisely and will be determined by the operational requirements of the Department. Testing for Visual Accuity 87 It is uncontested that many correctional officers, custodial and industrial, wear glasses or contact lenses in the course of performing their duties. The Tribunal accepts Mr Ruckley's estimate of 20 per cent. 88 It was also uncontested that serving officers are not subject to eyesight testing. Officers are tested only at the point of recruitment. The Tribunal accepts the evidence of Mr Mumford that because there is no ongoing testing, the Department is unaware of the visual acuity levels of serving officers. 89 The Tribunal agrees with the proposition advanced by Mr Hillard for the applicant that the wearing of glasses or contact lenses by officers was of no practical concern to the Department. The Tribunal considers it highly relevant that Messrs Owens, Rutley and Thorpe were unaware of any officer unable to perform their duties satisfactorily because they wore visual aids. These officers had many years of experience and had worked across the range of correctional institutions from maximum to minimum. 90 The Tribunal accepts Mr Maxwell's evidence that, on no occasion since he commenced wearing glasses in 1990, did his glasses become dislodged or that for some other reason was he unable to see while wearing them. We also accept his evidence that at no time did he experience difficulties in performing his duties because he was wearing glasses. 91 The Respondent was at pains to point out that there is no evidence available on the level of Mr Maxwell's uncorrected visual acuity following his 1988 eyesight test until HealthQuest's most recent test in 1998. However, this observation does not in any way diminish the fact that at no time did Mr Maxwell's glasses become dislodged or in any way prevent him from maintaining full corrected visual acuity while he performed his duties. Further, throughout this period, on no occasion did any one within the Department indicate to Mr Maxwell or others that wearing glasses adversely affected the performance of his duties. The Eyesight Standard 92 It is uncontested that in 1993, HealthQuest, at the request of the Department, undertook a detailed assessment of the work performed by correctional officers. The objective of the survey was to develop appropriate health and fitness standards to be used in pre-employment medical assessments. 93 Mr Hillard suggested that there is no formal documentation held by HealthQuest setting out the minimum HealthQuest standard for uncorrected visual acuity. It is our view that little turns on this. It is clear from the evidence that 6/12 in the weaker eye was the standard recommended by HealthQuest and accepted by the Department Dislodgment 94 We accept the evidence of Drs Jagger and Gapper that at present there is no known method by which visual aids may be secured in a practical sense. It is self evident that it is possible for visual aids to become dislodged. It is equally evident as stated by Dr Jagger, that correctional centres are "unpredictable and hostile places" and that correctional officers are required to be vigilant in carrying out their duties. 95 The evidence of Drs Gapper and Mahadev was, to use the words of Dr Mahadev, that the risk of dislodgement "is not negligible". 96 In reaching this conclusion, HealthQuest has ignored the practical experience within the Department. Dr Jagger conceded that the extensive 1993 survey that set the benchmark for health and fitness levels within the Department paid scant attention to the issue of officers wearing visual aids. This was despite the fact that HealthQuest was aware that a number of officers wore glasses and that no post-entry eye sight testing was carried out by the Department. 97 On balance we find the risk of dislodgment to be negligible. Application of Standard to Applicant 98 It is clear from the evidence of Dr Mahadev that on January 20 1998, when he met with the applicant, his knowledge of position No 97M088 and Mr Maxwell's history with the Department was incomplete. His appreciation of the distinction between an ASI and a custodial officer was, in the Tribunal's view, inadequate. 99 Dr Mahadev did not ask the applicant whether his glasses had become dislodged at any time in the course of his previous employment with the Department or whether for some other reason he was unable to see through his glasses in the course of carrying out his duties. 100 The Tribunal finds Dr Mahadev's note on the final Health Assessment Certificate that "Mr Maxwell's corrected vision is acceptable for duties as an ASI supervising low security prisoners in an industrial setting provided the risk of dislodgment…is negligible" somewhat difficult to understand given that before he issued the certificate he was advised by Dr Jagger that an ASI must also meet the health standards of correctional officers. It is also difficult to reconcile with his oral evidence that the risk of dislodgment of glasses was not negligible. RELEVANT LAW The Legislation 101 Section 4 of the Act defines "disability" to mean (among other things) "total or partial loss of a person's bodily or mental functions or of a part of a person's body" or "the malfunction, malformation or disfigurement of a part of a person's body". 102 Section 49A of the Act provides: A reference to a person's disability, is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 103 The Act makes it unlawful to discriminate against a person on the ground of disability in determining who should be offered employment: s 49D(1)(b). Section 49D (1)(b) is qualified by Section 49D(4) which provides: Nothing in subsection (1) (b) or (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 that disability and the provision of which would impose an unjustifiable hardship on the employer. 104 In determining what constitutes "unjustifiable hardship", Section 49C requires all relevant circumstances of the particular case 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. 105 Section 54(1) provides a defence to behaviour which would otherwise be unlawful discrimination: Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act. 106 Pursuant to the Public Sector Management Act 1988, regulations may be made by the Governor-in-Council. The Public Sector Management (General) Regulation 1988 cl.7 provides: (1) A person may not be appointed to an officer's position before his or her fitness to carry out the duties of the position has been confirmed by a health assessment. (2) The health assessment is to be in the form considered necessary by the appropriate Department Head. This may include (but is not limited to) any one or more of the following: (a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make him or her unfit to carry out the duties of the position; (b) a medical examination by a medical practitioner approved by the Department Head; (c) an examination by a medical practitioner, an optometrist or other appropriately qualified health care professional, approved by the Department Head, of a particular aspect of the person's health likely to detrimentally affect his or her capacity to carry out the duties of the position. Case Law "Inherent Requirements" 107 Much attention has been given to the meaning of the phrase "inherent requirements". A useful summary of the principles is to be found in Crombie v The Commonwealth of Australia. Crombie v Commonwealth unreported, Human Rights and Equal Opportunity Commission 20 November 1998. In that case, Commissioner Johnston (referring to the equivalent Commonwealth legislation) distilled the following propositions from the recent case law: (a) The sense of that ["inherent requirements"] should not be given a narrow reading, rather it should be given its natural and ordinary meaning; Commonwealth v Human Rights and Equal Opportunity Commission [1998] 3 FCA (13 January (1998) per Burchett J at [188-190]; QANTAS Airways Ltd v Christie (1998) 193 CLR 280 per McHugh J at 305, 307. (b) The inherent requirements primarily are those which are essential and indispensable to carrying out the particular employment QANTAS v Christie ibid per Gaudron J at 294-5; Gummow J at 310 but are not confined to the essential functions of that employment situation; Jamal v Secretary of Department of Health (1988) 14 NSWLR 252. (c) Whether a requirement is inherent must be determined not just by reference to the terms of appointment but also to the performance of the functions of the employment; QANTAS v Christie op cit. per Brennan CJ at 284. (d) Tasks which may be remote and peripheral, as against directly entailed in carrying out the duties and functions of that employment, may be discounted; Commonwealth of Australia v The Human Rights and Equal Opportunity Commission op cit. per Drummond J at [15]. (e) The fact that a particular requirement may only rarely or perhaps never be performed by a particular employee does not mean it ceases to be an employment requirement; See ibid per Mansfield J at [31-33]. (f) The requirements of particular employment are not confined to those an employee might be performing at a particular location and in a particular situation. See ibid per Burcher J at [7]. Just as in the case of the soldier in the HIV Case , if an employer requires the particular employee to move location and undertake different kinds of tasks, these may still fall within the inherent requirements of the particular employment so long as they are within the range of duties reasonably required by the terms of the particular employment; (g) Stipulating a general standard that is disproportionately higher than is reasonable for the performance by an individual of a particular required task may constitute discrimination on the ground of disability. QANTAS v Christie op cit. per Gaudron J at 294-5. There has to be a reasonably close correlation between the possession of a qualification, skill or capacity and the ability to perform a required task or function. Commonwealth of Australia v The Human Rights and Equal Opportunity Commission and Bradley ("Bradley") (1998) 158 ALR 568. 108 Qantas Airways Limited v Christie (1998) 193 CLR 280. is authority for the proposition that a determination of inherent requirements generally demands an examination of the way in which the employer has arranged their business. In that decision Brennan CJ (at 284) said: The question of whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract. It must also refer to the function that the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis that discriminates impermissibility against the employee, by reference to that organisation. The recent High Court decision of X v The Commonwealth 14 [1999] HCA 63 (2 December 1999). upheld the Federal Court decision Commonwealth of Australia v The Human Rights and Equal Opportunity Commission op cit. that it was not enough that a soldier diagnosed HIV positive be physically capable of performing all the tasks of the position, he must be able also to perform the same in a safe manner. McHugh J said (at para. 11): "The inherent requirements" of a "particular employment" are not confined to the physical ability or skill of the employee to perform the "characteristic" task or skill of the employment. In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees. 109 In the Federal Court Ibid., Burchett J (at p8) said: If operations, at least operations at the core of an employment, cannot be carried on safely or satisfactorily, its inherent requirements are not being met in a practical sense… 110 Mansfield J, (at p31), taking a similar approach, said: If the person, through some medical reason - whether physical or psychological - cannot perform the work safely, then that will mean that the person cannot meet the inherent requirements of the particular employment. 111 But he also warned (at p31) that employers must not abuse the safety defence: That is not intended as a mandate to drive a horse and cart through the operation of [the Act] by permitting the exception such a wide area of operation that the proscription is of little practical import. The umbrella of safety will not automatically provide shelter from the operation of s 15. Its provisions, and the provisions of the DD Act generally, will often be the final refuge of the disadvantaged in our society. As the last protection of the more vulnerable members of society to the whims or caprices of others, such legislation should be construed, if anything, somewhat aggressively and any limitations upon its operation construed narrowly. 112 The issue of relying exclusively on medical evidence which supports a blanket ban on the appointment of persons who fail to meet a prescribed medical standard was discussed in Crombie v Commonwealth unreported, Human Rights and Equal Opportunity Commission, op cit at 29. The problem faced by the Commission is this. On the one hand it has expert evidence supporting an absolute and general ban on appointment to what were at the relevant times the PSA and PSO positions. That evidence is of great relevance and cannot lightly be discounted (compare the HIV Case , per Mansfield J, at 218). On the other it has reasonably convincing evidence which in practical terms contradicts the medical view, at least as to the day-to-day performance of Mr Crombie's duties… 113 In that case, the Tribunal did not feel bound to accept the medical evidence over that relating to the applicant's (and the employer's) day-to-day experience. 114 In X v Commonwealth Ibid. Gummow and Hayne JJ(at 101) discussed assessment of inability to perform the inherent requirements of a position. No doubt inability must be assessed in a practical way, but it is inability, not difficulty that must be demonstrated. Compliance with Statutory Authority and Eligibility for Appointment 115 In Kitt v Tourism Commission (1987) 11 NSWLR 686., a decision of a single judge of the NSW Supreme Court, it was held that the provisions of the Anti-Discrimination Act did not apply in a case in which the applicant did not meet the medical standard imposed for employment by the Tourism Commission as a guide at Jenolan Caves. The applicant, Mr Kitt, suffered from epilepsy. 116 In Kitt, Lee J had to consider the effect of s 66 of the Public Service Act (the predecessor of he Public Sector Management Act). Section 66 provided that "a person is not eligible for permanent appointment to the Public Service unless he satisfies a medical examination as to his health, as provided by the regulations". The relevant regulation provided that the examination was to be conducted by the Director-General of Public Health or another medical practitioner delegated the task. 117 Lee J held that s 66 was a special provision. To the extent that there was any inconsistency between the Anti-Discrimination Act and the Public Service Act he held that the maxim "generalia specialibus non derogant" -- the general does not derogate from the particular (or special) – would apply to preserve the operation of s 66. In other words, legislation for a special purpose could override the general operation of the Anti-Discrimination Act. But Lee J held that, in any event, there was no inconsistency because there could be no discrimination against a person who was not eligible for appointment to the Public Service due to failure to meet the medical requirements. This was because the failure to appoint the particular individual was not based on disability but "on the ground that the applicant is not eligible for appointment under s 66." Ibid at 691-2. 118 Curiously, given the development of the law in this field, that decision has never been considered in any detailed fashion since 1987. Onus of Proof 119 In determining whether the applicant has established his case, we are obliged to apply the civil standard of proof. That is, the applicant must prove his case on the balance of probabilities. The applicant must prove that it is more likely than not that he has been subjected to unlawful discrimination. 120 By virtue of s 109 of the Act the respondent bears the onus of establishing a defence under s 49D(4) or s 54 if the applicant shows that he has been subjected to discrimination on the basis of a disability. SUBMISSIONS Applicant's submissions 121 The applicant's primary submission is that he was unlawfully discriminated against on the ground of his disability. The First Respondent it is argued, cannot rely on the s 49D(4) defence, having failed to discharge the burden of proof required under s109 of the Act. 122 Mr Hillard for the applicant argued that central to this case is the expression, inherent requirements. He argued that the respondents cannot maintain an argument that the standard 6/12 in the weaker eye is an inherent requirement of position no. 97/M088. 123 Mr Hillard submitted that the evidence establishes that the wearing of visual aids by a significant number of serving officers was a matter of no practical concern to the Department. He pointed to the uncontested evidence of senior Departmental officers, who appeared as witnesses before this Inquiry, that this class of officers satisfactorily and safely perform the inherent requirements of their positions even though they wear visual aids. 124 He contended further that the medical assessment undertaken by HealthQuest failed to take into account, as required for a 49D(4) defence, Mr Maxwell's "past training, qualifications, and experience relevant to the position" which demonstrated incontestably his suitability for the position, as did his past performance as an employee. 125 Mr Hillard submitted that that the visual acuity standard established by HealthQuest and as applied to Mr Maxwell was arbitrary and inflexible and did not demonstrate that Mr Maxwell was unfit to perform the inherent requirements of the position. Mr Hillard argued that an employer cannot rely on a rigorous and inflexible standard that gives no consideration to the circumstances of the applicant's position. 126 The applicant also argued that it is not enough that an employer rely on the application of the general medical standard that precluded inquiry as to the individual's ability to carry out the inherent requirements of the position. Respondent's Submissions 127 The primary argument advanced by the Respondent was that the absence of a pre-placement medical clearance satisfying cl.7 of the Public Sector Management Regulations 1998 prohibited the Department from appointing the applicant. Ms Anderson argued that the decision of Lee J in Kitt remained unchallenged for over a decade and the Tribunal as a matter of law must follow this Supreme Court decision. Ms Anderson argued that while today's equivalent of s 66 of the Public Service Act as considered by Lee J in Kitt, differs in form, the essence remains unchanged, prohibiting appointments to the Public Service, in the absence of a satisfactory health assessment. 128 In relation to the s 49D(4) defence, the respondent argued that the evidence before the Tribunal establishes conclusively that Mr Maxwell is unable to carry out the inherent requirements of the position. HealthQuest, in setting the standard for visual acuity, had carried out a comprehensive examination of the duties of all levels of correctional officer based on staff questionnaires, HealthQuest observation and advice from the Department. 129 The position for which Mr Maxwell had applied was a correctional officer position. A correctional officer is required by statute to be vigilant at all times. Based on the medical evidence before the Tribunal submitted by Ms Anderson, it is evident that without visual aids Mr Maxwell would be unable to meet the inherent requirement of the position. It is not enough that Mr Maxwell wear glasses 99% of the time. The position requires that a correctional officer be vigilant at all times. 130 Referring the Tribunal to a report of the Research Unit of the Department 'Assaults and Fights in NSW Correctional Centres', March 1999, Ms Anderson argued that assaults against inmates and correctional officers are a fact of life in the prison environment, necessitating officers to maintain constant supervision and vigilance. 131 Ms Anderson argued that many things that happen in prisons, such as fights among inmates, may be later the subject of evidence in court. It is essential, therefore, that the Department employs staff who can be relied on to give accurate evidence on what they see. 132 She submitted that the applicant's argument that a significant percentage of officers safely and satisfactorily carry out their duties while wearing visual aids is irrelevant as there is no evidence before the Tribunal that these officers do not meet the HealthQuest eyesight standard. The Department accepts an eyesight level down to 6/12, a level described by expert witness, Dr Jagger, as borderline disability. 133 Dr Gapper's medical opinion that a correctional officer is not fit to carry out the duties of such a position if their uncorrected visual acuity is worse than 6/12 in the weaker eye was unchallenged in the Inquiry. Also unchallenged was her assessment that no means are known for affixing glasses. CONCLUSIONS 134 The Tribunal is satisfied that the Department's decision not to appoint Mr Maxwell to position 97/MO88 was made on the grounds of his disability and therefore falls within the scope of s 49D(1)(b) of the Act. Having satisfied itself that an act of discrimination has occurred, the Tribunal is obliged to determine whether the Respondents have satisfied the s 49D(4) defence. Inherent Requirements 135 The respondents argue that Mr Maxwell's uncorrected eyesight prevents him from satisfactorily carrying out the position's inherent requirements of direct supervision of inmates and maintenance of vigilance at all times. 136 The Tribunal must first consider whether full custodial duties can properly be described as inherent requirements of position no 97/MO88 even though the Tribunal finds that the position is essentially a senior management position with minimal frontline custodial duties. 137 The Tribunal finds that these duties cannot be ignored in an assessment of what constitutes the inherent requirements of the position for which the applicant applied. 138 In reaching this conclusion we are mindful of the argument put by the first respondent that in some ways the distinction between an Assistant Superintendent of Industrial, supervising inmates in the wing of a prison as opposed to the prison workshop, is a false dichotomy. Close supervision and vigilance is required of industrial officers in both environments. 139 We now turn to the test to be applied in determining whether Mr Maxwell's disability prevents him from performing the inherent requirements of the position. 140 The test set in X v The Commonwealth 21[1999] HCA 63. requires the Tribunal to determine what level of risk is acceptable. The authorities are clear that each case must be assessed on its merits. 141 In summary we find the authorities require an assessment to be made of whether the applicant can carry out safely and satisfactorily all of the requirements of the position including full custodial duties. Mr Maxwell's past training, qualifications, performance and experience must be taken into consideration. 142 The evidence shows that the Department relied exclusively on the advice of HealthQuest in determining the appropriate medical health and fitness standards for a correctional officer and whether Mr Maxwell met these standards. 143 It is clear from the evidence that Dr Mahadev's knowledge of Mr Maxwell's work history was incomplete as was his knowledge of the duties of position no 97/MO88. Of particular relevance is the failure to inquire whether Mr Maxwell may have any difficulties in meeting the requirements as a result of wearing glasses. 144 The Tribunal accepts Mr Maxwell's evidence that at no time since he commenced wearing glasses in 1990 had his glasses become dislodged or had he been unable to see through them for any other reason while at work. Mr Ruckley's evidence supports this claim. 145 We are mindful that Mr Maxwell's uncorrected visual acuity when tested in 1986 and 1988 was assessed at 6/6 in both eyes. We have no evidence on the level of Mr Maxwell's visual acuity from 1988 until his resignation in 1996. Even had Dr Mahadev examined Mr Maxwell's work history it would not have been possible for him to conclude that Mr Maxwell was unable to meet the requirements of the position as a result of reduced uncorrected visual acuity. 146 However based on Mr Maxwell's work history it would have been possible for Dr Mahadev to conclude that from 1990, the time Mr Maxwell commenced wearing glasses, until his resignation in 1996, Mr Maxwell's glasses had never become dislodged nor was he, for any other reason, unable to see through them. "Other relevant factors" 147 The HealthQuest assessment failed to take account of the fact that many officers within the Department wear visual aids. HealthQuest made no inquiries during its 1993 survey as to whether any of these officers had difficulty in performing the inherent requirements of their positions. 148 It may be that the overwhelming majority of officers wearing visual aids meet the Department's standard for visual acuity, given the pre-placement screening for eyesight problems. However, it remains relevant that there is no evidence to suggest that Mr Maxwell was alone in experiencing no problems as a result of his glasses becoming dislodged. The evidence is clear: HealthQuest made no inquiries whether these officers experienced any problems in performing safely and satisfactorily the inherent requirements of the position. 149 In relation to its application to the s 49D(4) defence, the HealthQuest assessment was flawed as it failed to properly consider Mr Maxwell's employment history. HealthQuest's assessment provided insufficient information to the Department to allow it to conclude that Mr Maxwell's disability prevented him from carrying out the inherent requirements of the position. 150 The Tribunal must now consider whether, given the nature of Mr Maxwell's disability together with the inherent requirements of the position, the Department was justified in relying on an arbitrary medical standard and ignoring Mr Maxwell's experience, training and other relevant matters. 151 The respondent argues that HealthQuest had conducted a thorough audit of the duties of correctional officers in their 1993 survey and determined that the standard of 6/12 in the weaker eye was the minimum eyesight standard necessary for all classes of correctional officers to perform the inherent requirements of the position. 152 The superior courts' general approach to this area is that arbitrary standards are to be avoided. This is not to say that standards may never be set. However they must bear a reasonable relationship to the inherent requirements of the position. This may be particularly the case where safety is a major issue. It might be entirely reasonable, for example, to exclude persons prone to epileptic fits from working on scaffolding, or asthmatics from the fire service. 153 In such cases, disqualification of an applicant on the grounds that they did not meet a prescribed minimum medical standard may be reasonable irrespective of what might be revealed by an examination of the applicant's past training, experience, qualifications and other matters that would normally be considered relevant for the purpose of Section 49D of the Act. 154 In determining whether it is reasonable for the Department to rely on an arbitrary standard that excluded from appointment all persons with a nominated visual disability, the Tribunal must examine the medical and other evidence as it relates to the Standard. There are two aspects to the Standard. First, it nominates the level of visual acuity which in the opinion of HealthQuest is the level at which a person with uncorrected vision is unable to perform the tasks demanded by the position . This is properly an issue for expert medical determination. Second, inherent in the Standard is an assessment of the likelihood of visual aids being dislodged in the workplace. 155 The medical opinion before the Tribunal on the risk of dislodgment is unequivocal: the risk is not negligible. 156 An assessment of dislodgment cannot be considered in a hypothetical vacuum and requires appropriate weight to be given to what occurs in practice. The evidence of the four senior Departmental officers and that of the applicant himself supports Mr Hillard's strong submission that the wearing of glasses by one-fifth of serving officers was a matter of no practical concern to the Department. The Tribunal was referred to the absence of any examples where officers were unable to safely and satisfactorily carry out the inherent requirements of the position because they wore glasses. The Tribunal was referred also to the failure of the Department to enforce the Standard other than by means of pre-employment testing. 157 The Tribunal believes that this evidence is no less persuasive because some or even many of those serving officers wearing visual aids may meet the minimum HealthQuest standard. As the Department keeps no record of the eyesight levels of serving officers there is no empirical evidence available to the Tribunal. 158 The only evidence available to the Tribunal on this point is Dr Jagger's opinion that it is unlikely that a significant proportion of serving officers wearing visual aids would fail the HealthQuest eye sight test as most cases of reduced visual acuity become evident in early adulthood and thus would usually be screened at the point of recruitment 159 The screening process is demonstrably fallible as a predictor of whether an individual's eyesight will remain sufficiently good to meet the Standard over the long term. Indeed, it must be noted that Mr Maxwell himself was screened and, had he not left the Department, would probably be serving now as an officer with impaired vision. 160 While noting the evidence of Dr Jagger, we believe there is insufficient evidence before the Tribunal on which to make an assessment on the visual acuity levels of serving officers who wear visual aids. 161 Even if the overwhelming number of serving officers wearing visual aids met the HealthQuest Standard this would not mean that instances of dislodgment would not come to the attention of senior Departmental officers. Such officers may not be effectively "blinded" as the respondent submits would be the result, if the visual aids of a person with Mr Maxwell's level of visual disability were removed. However, the dislodgment would have safety and performance ramifications. For example, an officer may suffer an injury if their glasses were smashed as a result of a confrontation with inmates. If officers wearing visual aids were targeted by inmates this would have ramifications for the staffing policies of the Department. 162 A dilemma similar to that in Crombie confronts the Tribunal in this case. We consider that on the issue of dislodgment the practical evidence presented by the applicant cannot be ignored and, on balance, gives greater weight to evidence supporting his contentions on this issue. It is one thing to have general expertise in matters of occupational health and safety and to be able to draw conclusions from such general expertise. The fact remains, however, that on the uncontested evidence of a number of highly experienced correctional officers, it is such a rare event for glasses to be dislodged from an officer's face that they had never in their collective experience encountered such a problem. This indicates that, in practice if not in theory, the Department does not consider the risk to be significant and takes the attitude that the risk is an acceptable one. 163 In reaching this conclusion we have not ignored the evidence before the Tribunal that correctional institutions are potentially volatile and dangerous places. This we acknowledge. If Mr Maxwell were equipped, or equipped himself, with a spare pair of glasses with shatter-proof lenses, the risk that he may find himself embarrassed or endangered or a danger to others due to his lack of visual acuity seems to us to be minimised to such a degree that, notwithstanding the opinions of the HealthQuest doctors, it is within acceptable limits for the position for which he has applied. 164 That view is fortified by the observation that it is evident that the position of ASI does not involve frequent or sustained front-line correctional duties, even though it is a formal requirement that industrial officers are trained and may have to undertake custodial duties. 165 It seems to us that an arbitrary standard has been imposed upon Mr Maxwell; that the standard relates to correctional officers in general, but does not take into account or does not adequately take into account the job description of the position for which Mr Maxwell has applied; and that, in any event, by equipping himself with a spare pair of glasses Mr Maxwell is able to perform the essential and fundamental duties of the position with negligible risk. Accordingly we find that the Respondent has not discharged the onus to satisfy the Tribunal that the s49D(4)defence is available. Kitt's Case 166 The respondents' main argument is that there is a threshold issue which must first be resolved in the applicant's favour before any of the above is relevant. That is, they say that cl.7 of the Public Sector Management Regulation operates to exclude Mr Maxwell from employment by the Department while he remains unable to meet the medical test. That is the effect, says counsel for the respondents, of Kitt's Case. She argues that even if s 54 were not in the Act, the regulation applies. Ms Anderson says the regulation is not overridden by the Act and the issue before the Tribunal is a simple legal issue. 167 There is a ring of "Catch-22" to Lee J's reasoning in Kitt. The Catch-22, of course, is that Mr Kitt was not eligible for appointment to the Public Service because he could not pass the medical examination because of his disability, so, because of his disability, he was excluded from the Public Service. 168 If, for argument's sake, the medical standards applied to Mr Kitt were universally applied to all applicants for the NSW Public Service and were unnecessarily harsh, Mr Kitt would still have had no redress because the Tourism Commission would have been able to shelter behind the argument that s 66 made Mr Kitt ineligible for appointment. 169 Mr Hillard submits that Kitt can and should be distinguished and confined to its own facts. He says that cl.7 of the Public Sector Management Regulation has fundamentally altered the ground rules concerning medical examinations for NSW public officials by giving Departmental Heads the flexibility and power to set their own standards in relation to medical examinations that must relate to the inherent requirements of the positions they control. 170 On its face, cl.7(1) is very similar to s 66 of the old Public Service Act. But cl.7(2) is significantly different and sheds light on the way cl.7(1) is to be interpreted. It places with the Departmental Head the responsibility for deciding what form the medical assessment must take. The form must be the form "considered necessary" by the Departmental Head. 171 This in turn implies that the Departmental Head (or his or her delegate, if the matter can be delegated) must consider the inherent requirements of the position or positions to which applicants may be appointed. That this is implied is clear from the types of medical assessments the Departmental Head may require. These may include statutory declarations concerning disabilities; medical examinations by doctors approved (and presumably instructed as to Departmental requirements) by the Departmental Head; and examinations by optometrists and other health professionals concerning "a particular aspect of a person's health" if there is a risk that the person's capacity to carry out his or her duties may be adversely affected by a disability or illness. This appears to this Tribunal to be very different from the "one-size-fits-all" approach apparently taken to medical examinations in the Kitt era. 172 Of course, the public policy underlying cl.7 is obvious. The Public Service should not, on the one hand, become a hiding place for those unfit to work. Neither should Departmental Heads, competing for qualified staff in the job market, be deprived of the chance to employ suitable persons simply because an arbitrary test, applied by a bureaucracy over which they have no control. Such a test could exclude persons who would otherwise have real contributions to make and who, either alone, or with reasonable assistance from the employer, could meet the inherent requirements of the positions open for appointment. One size does not fit all requirements of all public service agencies. 173 If this analysis is correct, the Tribunal is able to look behind the circularity of the respondents' argument on this point to the reality, and apply the principles found in the general law on discrimination as enunciated in the authorities on "inherent requirements". 174 If the Department Head is under an obligation, as appears to be the case, to take into account the inherent requirements of the position, failure to do so may, by default, lead to an arbitrary and unlawfully discriminatory standard being set for medical examinations. 175 In our view, the HealthQuest examination was conducted according to general specifications provided to the examining doctors. The particular position was not so much the focus of their attention as the general requirements for correctional officers. The Department did not itself focus on the inherent requirements of the ASI position as it was actually to be performed but, in effect, treated it, from a medical point of view, as a custodial officer's position (with added frills). In effect, delegating the task of sorting out the inherent requirements of the ASI position to HealthQuest, the Department failed to meet its own obligations to consider and factor into the medical test procedures the inherent requirements of the position. 176 It is not enough for the respondents to simply raise Kitt as the answer to the complaint. While Kitt, as Ms Anderson rightly points out, is still authority for what it stands for, it appears to us to be distinguishable for the reasons we have already stated. 177 But it is also clear that from a reading of the Act See, for example, ss. 4B, Part 9A. that the legislature clearly considered it necessary to make the Public Service and public authorities accountable for their employment policies. This is only right. Just as the Crown should be a model litigant, so too should it be a model employer. Section 54 and cl.7, in our view, do not, and were not intended to, reduce the liability of public authorities to meet the same exacting standards concerning discrimination as all other employers. 178 Mr Maxwell may not have met the requirement set out in cl.7(1), but in our view, that is not the conclusion of the story. The first respondent was obliged by cl.7(2) – at least by implication – to take into account the inherent requirements of the position and failed to do so, thus discriminating against Mr Maxwell to his detriment. 179 Accordingly we find the complaint against the first respondent substantiated. Aiding and Abetting 180 It is not, in our view, appropriate to make a finding that the second respondent "aided and abetted" the first respondent in discriminating against Mr Maxwell. It is clear that the second respondent was the innocent agent of the first respondent. The general principle of law is that for a person to be an accomplice requires full knowledge of the elements of that make an act unlawful. See Giorgianni v R (1985) 185 CLR 473. We do not think that the evidence extends that far, even on the balance of probabilities. 181 Accordingly the Tribunal orders that the complaint against the second respondent be dismissed. RELIEF Damages Economic Loss 182 The applicant seeks an order for damages for loss of income. 183 Section 113(1)(b)(i)of the Act permits the Tribunal to order a respondent to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 184 The evidence before the Tribunal is that as at February 1998 position, ASI no 97/MO88, attracted an annual gross income $46,437. Accordingly, Mr Maxwell's total income loss from February 1998 until the date this Inquiry commenced in November 1999 was approximately $81,000, ignoring any wage increase that may have been payable or superannuation benefits. 185 Mr Hillard submits that in determining the amount to be deducted in respect of mitigation, the Tribunal should base its calculations on the wages paid by West Sydney Upholstery to Mr Maxwell. In 1997/98, the most recent year for which audited returns are available, Mr Maxwell received $13,997 in wages from the business. In evidence Mr Maxwell's estimate of wages for the financial year 1998/99, to be "around $14,000 possibly $15,000". If the Tribunal were to adopt this approach the amount to be deducted for mitigation would be approximately $26,000. 186 Ms Anderson argues that in determining what sum should be deducted for mitigation the Tribunal cannot ignore the tax advantages and various fringe benefits, such as motor vehicle and depreciation expenses available to Mr Maxwell as a partner in West Sydney Upholstery. These benefits are not available to an employee with no financial interest in the business. In short she argues that the amount identified as wages understates Mr Maxwell's actual income from the partnership. No evidence was led by Ms Anderson on the quantum of the non wage component of the alleged financial benefits received by Mr Maxwell. Despite the lack of evidence the Tribunal accepts that, on balance, certain fringe benefits were available to Mr Maxwell as a partner of West Sydney Upholstery. We estimate this to be $5000 for the period February 1998 to November 1999. 187 Thus we calculate Mr Maxwell's economic loss to be $ 50,000. Non Economic loss 188 There is insufficient evidence before the Tribunal on which to make an order for non economic loss. Appointment to position, ASI no 97/MO88 189 The applicant seeks an order from the Tribunal that the first respondent appoint Mr Maxwell as the Assistant Superintendent of Industries (Corcover, upholstery) at Silverwater. 190 Mr Hillard argues that the difficulty presented by clause 7(1) of the Public Sector Management (General) Regulation is overcome by the assessment provided by Mr Maxwell's optometrist, dated 20 January 1999, which states that Mr Maxwell "should have no visual problems as overseer in a Correctional Centre". Mr Hillard further submits that the Tribunal may look to Mr Maxwell's declaration provided in the course of the Inquiry as to his fitness for the position. 191 The Tribunal declines to make an order that Mr Maxwell be so appointed. Clause 7(2) of the Regulations provides that the "health assessment is to be in the form considered necessary by the appropriate Department Head". It is apparent from this Inquiry that the Commissioner of Corrective Services does not consider that Mr Maxwell's self assessment or that of his optometrist, to be a form considered appropriate. 192 In our view, the appropriate remedy is first, to order that a full and proper risk management assessment of the position be conducted by the First Respondent as to the inherent requirements of ASI no 97/MO88and secondly, to order that Mr Maxwell be assessed for the position in accordance with the findings of that inquiry. ORDERS 193 In summary: * The complaint against the first respondent is substantiated. * The complaint against the second respondent is dismissed. 194 The Tribunal orders that: 1. The first respondent pay to the applicant within 21 days of the date of judgment, damages in the sum of $40,000. 2. The first respondent conduct a full and proper risk management assessment of the position as to the inherent requirements of ASI no 97/MO88 within six weeks of the date of judgment. 3. The first respondent assess the applicant for the position in accordance with the findings of that inquiry within four weeks of the date the risk management assessment referred to above is received by the first respondent. 4. The complaint against the second respondent be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.