Commonwealth of Australia v The Honourable W J Carter QC & Anor [1996] FCA 940

Commonwealth of Australia v The Honourable W J Carter QC & Anor [1996] FCA 940

The discharge of the second respondent solely on the basis of HIV-positive status, without evidence that the disability rendered him unable to perform the inherent requirements of military service as a soldier, constituted unlawful discrimination under the Disability Discrimination Act 1992 (Cth). Occupational health policies imposing a blanket bar on HIV-positive enlistment are not inherent requirements for the purposes of the Act.

Jurisdiction
Australia
Judgment Date
31 October 1996
Procedural Posture
Application for Judicial Review / Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['disability Discrimination in Employment' 'inherent Requirements of Employment' 'defence Force Employment' 'judicial Review of Administrative Decisions']
['discrimination' 'employment Law' 'administrative Law'] ['disability Discrimination in Employment' 'inherent Requirements of Employment' 'defence Force Employment' 'judicial Review of Administrative Decisions']

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Procedural Posture

Application for Judicial Review / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the discharge of an HIV-positive enlistee from the ADF constitutes unlawful discrimination under Part 2 of the Disability Discrimination Act 1992 (Cth)' "Whether an HIV-positive status renders an enlisted soldier unable to carry out the 'inherent requirements' of military employment under s 15(4) of the Act" 'Whether employer-imposed occupational health and safety requirements are inherent requirements for the purposes of the Act']

Ratio Decidendi

The discharge of the second respondent solely on the basis of HIV-positive status, without evidence that the disability rendered him unable to perform the inherent requirements of military service as a soldier, constituted unlawful discrimination under the Disability Discrimination Act 1992 (Cth). Occupational health policies imposing a blanket bar on HIV-positive enlistment are not inherent requirements for the purposes of the Act.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' "The applicant pay the first and second respondents' costs of and incidental to the application, including reserved costs, to be taxed if not agreed."]