FEDERAL COURT OF AUSTRALIA

Shizas v Commissioner of Police [2017] FCA 61

ORDERS

THE COURT DECLARES THAT:

1.    In March 2013 the respondent contravened s 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant because of his disability in that he refused to employ the applicant in the position of Federal Police Agent Base Police Officer because he had ankylosing spondylitis.

THE COURT ORDERS THAT:

2.    The application otherwise be dismissed.

3.    Any application for costs be filed and served within 14 days, accompanied by submissions not exceeding 3 pages and any supporting evidence.

4.    In the event that an application for costs is made, any response, also not exceeding 3 pages be served, together with any supporting evidence, within 14 days thereafter.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of Contents

Introduction

1    Nicholas Shizas is a senior lawyer with the Australian Taxation Office. For many years, however, he has wanted to become a police officer. In 2002, then in his early twenties, he applied to join the Australian Federal Police (“AFP”). His application failed because he did not then have an unrestricted driver’s licence and it was an essential requirement of the job that he hold one. In 2009 he applied again, but on this occasion his application did not progress beyond the aptitude testing part of the recruitment process.

2    In 2012 Mr Shizas submitted a third application. This time he received a conditional offer of employment. He failed to secure employment, however, because, following a diagnosis of ankylosing spondylitis (described in the pleading as “a form of arthritis that causes inflammation in the spine and other joints”), a decision was made that he did not meet the AFP’s medical clearance requirements. He tried in vain to have that decision overturned. These two decisions are the subject of this proceeding.

3    Mr Shizas contends that, by refusing to employ him in these circumstances, the Commissioner of Police contravened s 351 of the Fair Work Act 2009 (Cth) (“FW Act”) which proscribes discrimination in employment on certain grounds, including disability, unless the action is taken because of the inherent requirements of the position. He claims that both the original decision and the decision on review were made because of his ankylosing spondylitis, which is a physical disability within the meaning of the FW Act. He seeks declaratory relief and orders that the Commissioner appoint him to the position for which he applied, or alternatively admit him to the Federal Police Development Program. He also seeks orders restraining the Commissioner from continuing to treat his ankylosing spondylitis as an exclusion under the AFP’s medical standards, or denying him medical clearance on the ground of his condition or any potential deterioration in it.

4    Section 351(1) of the FW Act states:

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(Emphasis added.)

5    “Adverse action” is defined in s 342 of the FW Act. It includes (in item 2(a)) a refusal by a prospective employer to employ a prospective employee. It is not in dispute that at the relevant times Mr Shizas was a prospective employee and that the Commissioner refused to employ him twice: once in March 2013 and again in July 2014 after he tried to have the first decision overturned.

6    Neither “disability” nor “physical or mental disability” is defined in the FW Act. It is common ground, however, that ankylosing spondylitis is a physical disability within the meaning of the Act.

7    But s 351(1) does not apply in certain circumstances described in s 351(2). For present purposes it is sufficient to note that it does not apply to action that is “taken because of the inherent requirements of the particular position concerned” (s 351(2)(b)).

8    It follows that s 351 relevantly prohibits an employer from refusing to employ a prospective employee because of that person’s physical disability (here, ankylosing spondylitis), unless the employer does so because of the inherent requirements of the particular position concerned.

9    Despite the beguiling simplicity of this proposition, there was very little common ground as to how it ought to be applied to the facts of this case. In particular, the parties disagreed about:

(1)    whether the Commissioner was an “employer” for the purposes of s 351 (notwithstanding the agreement that Mr Shizas was a prospective employee);

(2)    whether the Commissioner refused to employ Mr Shizas because of his physical disability;

(3)    if the answers to (1) and (2) are “yes”, whether the Commissioner did so because of the inherent requirements of the particular position concerned; and

(4)    if the answers to (1) and (2) are “yes” and the answer to (3) is “no”, what form or forms of relief could or should be granted.

10    I will deal with each of these four issues in turn.

11    Before doing so, however, it is necessary to refer to the evidence and explain in greater detail the events giving rise to the litigation.

The evidence

12    There were six witnesses. First there was Mr Shizas. His evidence in chief was largely given in three affidavits. He also relied on reports from his treating rheumatologist, Dr Jim Bertouch, and a consultant rheumatologist, Dr Louis McGuigan. Mr Shizas and the two experts were cross-examined.

13    The other three witnesses were called by the Commissioner. The first was Dr Patricia Batchelor, a general practitioner. Dr Batchelor was subcontracted from Medibank Health Solutions to the AFP from January 2013, and from 1 July 2013 until September 2015 was directly employed by the AFP in the role of Consultant Medical Adviser. The second witness was Tracey Crump, who was responsible for the AFP’s recruitment at the relevant times and is presently responsible for its security vetting, clearance, and review processes. The third was Shane Connelly, an Assistant Commissioner of the AFP, who from February 2014 was its National Manager for Human Resources. All of the Commissioner’s witnesses gave their evidence in chief primarily by affidavit and were cross-examined. The Commissioner also tendered a report from Dr Stephen Potter, a consultant rheumatologist.

The background facts

14    The facts set out below are drawn from a statement of agreed facts and the evidence of the witnesses. Unless otherwise indicated, they are uncontroversial. It follows that they should be taken as my findings of fact.

15    Mr Shizas is employed as a senior lawyer in the Review and Dispute Resolution section of the Australian Taxation Office. He has worked there since November 2008 and during that time he has risen from a position as a relatively junior lawyer to that of acting principal lawyer.

16    Despite this promising legal career, Mr Shizas has long desired to serve as a police officer. As I have said, he applied to join the AFP in 2002 and then again in 2009, but was unsuccessful each time, albeit for different reasons. He also applied to join at least one State or Territory police force. On 10 April 2012, he made the application that set in train the events with which this proceeding is concerned. That application was for the position of Federal Police Agent Base Police Officer (“FPABPO”).

17    The recruitment process for the position of FPABPO requires applicants to pass through a number of stages, described by the Commissioner as “gateways”.

18    Mr Shizas faced the first gateway in May 2012, when he was invited by the AFP to take an online aptitude test. He passed. He was then informed that his application would be reviewed to ensure he met the “mandatory minimum requirements for employment suitability” and that “AFP Recruitment” would be in touch with further information.

19    On 30 July 2012 Mr Shizas consulted Dr Bertouch for the first time. Dr Bertouch has been a consultant rheumatologist in private practice since 1985. Currently, he is the chairman of the Department of Rheumatology at Prince of Wales Hospital in Randwick, a position he has held since 1991. Concurrently, he has worked as an honorary senior lecturer in the Faculty of Medicine at the University of New South Wales. Amongst other awards, he holds a doctorate of medicine from Flinders University in South Australia and was presented with a distinguished service medal by the Australian Rheumatology Association in 2015. He has diagnosed, treated and managed many patients with ankylosing spondylitis both through his private practice and in-patient and out-patient clinics in various hospitals in Australia and overseas. He has had a long term interest in the condition and has contributed to its investigation, research and treatment. His writing on the subject has been published internationally in peer reviewed journals. He has also been involved in education campaigns to help his colleagues and other medical practitioners understand the importance of early diagnosis and treatment of ankylosing spondylitis.

20    At his first consultation Mr Shizas told Dr Bertouch that he had had an episode of back pain radiating into his right leg when he was 17. He reported that the symptoms settled but returned twice in his early twenties with repeated episodes of “sciatica”. He gave evidence that he had another episode in his late twenties, which quickly subsided. At this consultation, however, he reported that his symptoms had become significantly worse, despite yoga, swimming, and continuing treatment. Dr Bertouch examined Mr Shizas and reviewed some x-rays he had brought with him. Dr Bertouch also arranged for Mr Shizas to undergo a series of blood tests. On the basis of the pathology results Dr Bertouch considered that it was most likely Mr Shizas had ankylosing spondylitis, referred him for further investigations, and recommended a change in his anti-inflammatory medication. A CT scan of his sacroiliac joints taken on 11 August 2012 showed that they were fused bilaterally. An ultrasound examination of his liver, however, was normal.

21    By the time Mr Shizas returned to see Dr Bertouch on 17 September 2012, Dr Bertouch considered that “there had been excellent improvement” in Mr Shizas’s symptoms and noted that he had resumed a regular exercise program, training six or seven days a week, and his chest expansion had substantially improved from 1.5cm to 6cm. Mr Shizas was periodically reviewed thereafter and each time Dr Bertouch reported that he was making “good progress”.

22    In the meantime, on 22 August 2012, AFP Recruitment advised Mr Shizas that he could proceed to the next stage of the recruitment process, the Physical Competency Assessment. He passed all but one aspect of that assessment: the grip strength test. Consequently, on 24 September he was told that he had not passed the assessment. But on 28 November he received a further email from AFP Recruitment, informing him that the grip strength test had been removed from the Physical Competency Assessment and, as a result, the decision that he had failed the assessment had been revoked. He was invited to progress to the next recruitment gateway, the “Assessment Centre”.

23    Mr Shizas attended the Assessment Centre on 6 February 2013. He brought with him, at the AFP’s request, a completed copy of Part One of his “AFP Medical Form”. In Part One the applicant is (or at least was) asked to “summarise [his or her] present state of health and fitness”. Mr Shizas wrote:

Good health, exercise 4–5 times per week. Ankylosing Spondylitis well controlled + I have no functional limitations.

24    The form also asked whether he had “ever had” or had “ever been treated for” 73 different conditions or sets of symptoms. This is how Mr Shizas responded to questions 21–24, which fell under the subheading “MUSCULOSKELETAL”:

25    At the Assessment Centre Mr Shizas met with a nurse. He spoke to the nurse about his ankylosing spondylitis and told the nurse that he could get a report from Dr Bertouch. The nurse provided him with a document to give to Dr Bertouch, entitled “AFP Recruit Musculoskeletal Assessment”.

26    Mr Shizas annexed this document to his affidavit of 2 May 2016. It is a two page form. The first page asks for the name of the AFP applicant, the “history/musculoskeletal condition of concern”, the name of the “requesting doctor”, and the name of the “examining physiotherapist/occupational physician”. It then contains the following note (without alteration):

This form is to be used as a musculoskeletal screen where a potential AFP recruit has a history of injury or surgery that may impact on their ability to undertake the physical rigours of AFP recruit training and operational policing.

...

The table below identifies a range of tasks that are required for an operational policing role. As examining physiotherapist or occupational physician, you are being asked to certify that you believe the potential AFP recruit identified above is capable of undertaking the rigours of AFP recruit training and operational policing.

In addition to the tasks identified below, the 18 or 26 week AFP recruit training courses involve intensive physical training requiring a high standard of fitness. Pre-existing conditions may preclude or be exacerbated by this training and every attempt should be made to identify any condition that might be exacerbated prior to commencing training. For example, a history of shin pain and shin splints has been predictors of problems during AFP recruit training.

Please provide your advice regarding clearance as “Yes” or “No” in the right hand column over the page and provide any relevant comments in the space provided, such as advice regarding Apprehension testing and range of movement.

27    The table to which that note refers appears on the second page of the form. Above it is the heading “Requirements for use of force training for operational policing”. Following the table there is a space for “Comments”, and then the following declaration, to be signed by the person completing the form:

I consider that ___________ is:

Signature ___________ Printed name ___________

Date ___________

28    Dr Bertouch did not complete the form or sign the declaration. But he did give Mr Shizas a letter, dated 12 February 2013, which briefly described Mr Shizas’s condition and mentioned certain medication Mr Shizas was taking. The letter then stated:

I understand that [Mr Shizas] has applied to join the Australian Federal Police Force. He has also shown me a document related to the “requirements for use of force training for operational policing”.

In my opinion there is no restriction in his ability to carry out these requirements.

Should there be any further questions regarding his condition or treatment, I would be happy to answer them.

29    Mr Shizas provided this letter to the AFP. At no time, however, did anyone take up Dr Bertouch’s invitation.

30    On 13 February 2013, the AFP advised Mr Shizas that he had met the required benchmarks at the Assessment Centre, and he would proceed to the next “gateway”, being the “Medical and Psychological assessments”. The next day he received another email, informing him that the assessments would be undertaken by Medibank Health Solutions. In that email, he was asked to make an appointment with Medibank and to take his AFP medical form along when he attended the appointment. He was also told that if he currently had, or had ever had, any medical condition which might affect his ability to perform his duties, he would be required to bring a report from his treating doctor.

31    On 6 March 2013 Mr Shizas was assessed by Dr Victoria Oey of Medibank Health Solutions. Dr Oey completed Part Two of Mr Shizas’s AFP Medical Form. This required her to record Mr Shizas’s weight, height and visual acuity, as well as his blood pressure and other vital signs. It also required her to tick either “normal” or “abnormal” against more than 20 health factors, such as hearing, chest expansion, lymph nodes, and balance and coordination. She ticked “normal” against all of these.

32    Dr Oey also completed a page in Part One of the AFP Medical Form. This appears to contain her comments on the conditions that Mr Shizas had indicated he had ever had or for which he had ever been treated. This is what Dr Oey wrote in response to Mr Shizas answers to questions 21 and 22:

Ankylosing spondylitis diagnosed in June 2012

•    affects S1 joints, lower back & mid-back

•    no active issues since commencing salazopyrin and low dose indocid

•    sees rheumatologist (Dr Jim Bertouch) every 3/12

•    see letter from rheumatologist

•    HLA B27 negative

33    Later the form asked, “Did the Part One Medical Questionnaire reveal any potential problems?” Dr Oey responded, “Yes”. But she wrote:

Ankylosing spondylitis

•    well managed at present on medication

•    no [flares?] since diagnosis in June 2012

•    good prognosis as per rheumatologist

34    Ultimately, Dr Oey ticked the box marked “Fit for Induction Training/Appointment” and signed the final page of the form.

35    On 19 March 2013, Mr Shizas received a letter signed by Joanna Farrow, as delegate of the Commissioner of Police. The letter stated that Mr Shizas had been “selected for engagement as an employee of the [AFP] and placement on Federal Police Development Program (FPDP) 5/2013”. The letter further advised that “on successful completion of the FPDP [Mr Shizas] may be declared a Member of the AFP pursuant to Section 40B of the Australian Federal Police Act 1979 (Cth) [(“AFP Act”)]” and that the AFP’s intention was then to deploy him “at AFP Band 2.4 to a policing role at Sydney Airport”. The letter warned, however, that commencement of employment with the AFP was conditional upon him “accepting [the] Offer of Engagement (including meeting the required conditions of engagement), and the Commissioner or appropriate Delegate signing a formal Instrument of Engagement”. The letter’s covering email emphasised the conditional nature of the offer:

While you have been found suitable at the psychological gateway, this offer remains conditional until a successful medical and security clearance have been granted. ...

Please note — If your security clearance is not completed by 13 April 2013, Recruitment will be in contact with you to discuss your eligibility for participation on FPDP 5/2013. As stated in the enclosed Offer of Engagement, a condition of your employment into the AFP depends on successful completion of all recruitment gateways.

(Original emphasis.)

36    Notwithstanding that he understood that this offer was conditional, Mr Shizas was understandably excited to receive it.

37    Around this time, Dr Batchelor was assigned the task, among other things, of advising the AFP on the suitability of applicants for recruitment. The very same day that Mr Shizas received his conditional offer of employment, she was reviewing Dr Oey’s finding that he was “Fit for Induction Training/Appointment”. She read over Dr Oey’s report. She looked at the letter that Mr Shizas had obtained from Dr Bertouch. Having considered these matters, and without speaking to either Dr Oey or Dr Bertouch, she came to the contrary conclusion. Although she had never examined Mr Shizas, she wrote on the top left hand corner of Mr Shizas’s medical form “Not fit for recruitment — does not meet medical standards due to ankylosing spondylitis”, and affixed her stamp. She then provided the completed medical form, unaccompanied by any other documentation, to a nurse.

38    On 21 March 2013 AFP Medical Services told AFP Recruitment that Mr Shizas had not met the medical gateway. Sally Ayers from AFP Recruitment called Mr Shizas to give him the bad news.

39    The next day Mr Shizas received an email from Ms Ayers that made no reference to his ankylosing spondylitis but said:

Unfortunately, you have not met the medical clearance requirements for this role. As a result your application will not proceed any further.

40    The parties agreed that this was the first of two occasions on which the Commissioner “refused to employ” Mr Shizas. They were at odds, however, over as to who made the relevant decision and when it was made.

41    Shortly after receiving the email from Ms Ayers, Mr Shizas tried to persuade the AFP to review the decision. These early attempts came to nothing. On 10 April 2013 Mr Shizas received an email from Rick Creech, an operational health support nurse at the AFP, in which, amongst other things, Mr Creech wrote:

The AFP Medical Advisor has considered the information provided as part of your AFP medical assessment, including the letter from Dr Bertouch. Although Dr Bertouch has expressed his opinion about your condition, ankylosing spondylitis is an exclusion under the AFP Medical Standards. As a result, there is no ability to review a decision that has been based on the AFP Medical Standards. In making their recommendation, it is unlikely your specialist or GP would be fully aware of ... what is involved in AFP recruit training and performing an operational policing role.

The AFP Medical Standards outline the medical clearance process for AFP recruit training applicants. The Standards identify a range of medical conditions that will exclude a person from being medically cleared to undergo recruit training.

(Emphasis added.)

42    It is not at all clear when ankylosing spondylitis became an exclusion under the AFP Medical Standards but there is reason to think that it occurred after Mr Shizas was examined by Dr Oey. On 8 April 2013 Diane Lieutenant, an AFP employee holding the position of “Program Manager, Medical Operational Readiness, Medical Services” asked for the AFP website to be updated to amend a list of “Medical conditions that will prevent you becoming a sworn AFP officer or Protective Service Officer”. As amended, the list included ankylosing spondylitis. Mr Shizas said that when he had visited the website earlier in the year, ankylosing spondylitis was not among the conditions listed.

43    In November 2013, Mr Shizas lodged a complaint of disability discrimination with the Australian Human Rights Commission (AHRC). Such a complaint is a necessary precursor to a claim based on a contravention of the Disability Discrimination Act 1992 (Cth): see Australian Human Rights Commission Act 1986 (Cth) Pt IIB.

44    On 29 January 2014, while that complaint was pending in the AHRC, something curious happened. After receiving legal advice, Dr Batchelor made a new notation on Mr Shizas’s medical form in the following terms (without alteration):

R/V of decision. Although there are potential risks in the long term with this candidate, currently they meet the AFP medical standards.

He needs to be aware that if in future he is required to take immunomodulating drugs this may limit the location of overseas deployments.

(Emphasis added.)

45    Somewhat surprisingly, perhaps, this did not lead to the resolution of Mr Shizas’s complaint.

46    When this notation was shown to Mr Shizas at the hearing, he said that he had never previously seen it. The review seems only to have come to light when Mr Shizas obtained his complete AFP Medical Form from the Commissioner through a notice to produce. The review was not mentioned in Dr Batchelor’s affidavit. Nor was it mentioned in the affidavit of Assistant Commissioner Connelly, although he conceded in cross-examination that he had been aware of it.

47    The Assistant Commissioner’s involvement in Mr Shizas’s case began when he was appointed as the AFP’s National Manager of Human Resources at the beginning of February 2014. Upon learning of Mr Shizas’s complaint, he said that he reviewed Dr Bertouch’s letter of 12 February 2013 but had two lingering concerns. The first was that Dr Bertouch referred only to Mr Shizas’s ability to carry out the requirements for “use of force training”. Assistant Commissioner Connelly considered that Dr Bertouch’s report did not address the question of whether Mr Shizas could carry out all the physical requirements of operational policing. The second was that Dr Bertouch had noted “marked improvement” in Mr Shizas’s symptoms following the introduction of certain medication. Assistant Commissioner Connelly wanted to know what would happen if the medication were withdrawn. He also wanted to know the potential side effects of the medication. He said that “given [his] view about the shortcomings in Dr Bertouch’s report”, “on or around 12 March 2014” he decided to seek an independent medical opinion about Mr Shizas’s ability to perform the role of police officer, including his ability to participate in recruit training. He did not, however, explore either matter with Dr Bertouch, who, it might be thought, was in the best position to provide such an opinion.

48    In her affidavit Dr Batchelor confirmed that Assistant Commissioner Connelly had asked her on 12 March 2014 to obtain this independent opinion. In cross-examination it emerged that the 12 March request was made in a meeting she had with the Assistant Commissioner, the purpose of which, according to Dr Batchelor, was to discuss her 29 January “review” of Mr Shizas’s medical suitability for recruitment. Dr Batchelor recalled that at the meeting the Assistant Commissioner said he was concerned that “everyone needed to be fully deployable”, in the sense of deployable overseas. She also recalled him saying that he was concerned about the risk of “medical claims”, in particular those arising from injuries to shoulders, knees and backs. Assistant Commissioner Connelly remembered discussing with Dr Batchelor “[Mr Shizas’s] immediate fitness versus the long term, and certainly ... his inability to ... deploy to certain places”.

49    On 9 April 2014 Dr Batchelor wrote to Dr Sandra McBurnie, an occupational physician from an organisation called “mlcoa”. She asked Dr McBurnie to provide her opinions on:

(a)    Whether Mr Shizas is physically able to perform the duties of an operational police officer listed below.

(b)    Whether Mr Shizas would have any physical limitations should he undertake an operational policing role.

(c)    Whether Mr Shizas is at an increased risk of injury in undertaking the duties of an operational policing role due to his condition.

(d)    If the answer to (c) is in the affirmative, please provide your opinion on the risk of injury to Mr Shizas, including the risk of aggravation of his medical condition.

(e)    Whether Mr Shizas would require ongoing medical supervision if he were to perform an operational policing role.

50    Dr Batchelor also informed Dr McBurnie that Mr Shizas was prescribed Sulfasalazine. She continued (at (f)):

According to the 2010 update of the ASAS/EULAR recommendations for the management of Ankylosing Spondylitis “there is no evidence for the efficacy of DMARD, including Sulfasalazine and Methotrexate for the treatment of axial disease. Sulfasalazine may be considered in patients with peripheral arthritis.” Please explore whether Mr Shizas may have peripheral arthritis.

51    Finally, Dr Batchelor asked Dr McBurnie (at (g)) to offer any “other comments [she considered] relevant to Mr Shizas’s health, treatment and ability to undertake an operational policing role”.

52    Dr McBurnie examined Mr Shizas and replied to Dr Batchelor on 30 April 2014. In her report, she noted the history of Mr Shizas’s ankylosing spondylitis, his medications, and the fact that he reported no symptoms. She considered his neck, back, upper limbs, shoulder girdles and lower limbs, and noted no restriction, tenderness or hesitance in his movements. She answered Dr Batchelor’s seven questions. She did not believe he had peripheral arthritis. This was her conclusion on his ankylosing spondylitis:

This is a difficult case as Mr Shizas is currently reported to be asymptomatic, physical examination is essentially normal and his level of exercise and activity generally is compatible with training requirements. At issue is the risk of injury and it is difficult to predict how the diagnosis of ankylosing spondylitis will affect his risk of injury given that the tasks required carry a degree of risk of injury independent of any underlying medical condition. His history would increase his risk but the degree of the increase in risk is unquantifiable.

53    Upon reading this report, Assistant Commissioner Connelly said he was worried, given the uncertainty about the risk of injury in operational policing, that this meant that Mr Shizas might be injured while doing day to day tasks as a police officer or during recruit training. He explained:

From my experience of operational policing, I knew it was highly likely Mr Shizas would face a situation where he would need to wrestle another person. This could happen in training or when performing operational policing duties. This is very hands on and you must use various holds to try and detain that person. Often people resist these holds and can place you in headlocks. This means you are bent over and are twisting usually quite violently to break free from the headlocks. This places a lot of pressure on your back and I was worried Mr Shizas could be injured performing this task given his pre-existing condition.

54    On 7 May 2014 Dr Batchelor wrote to Dr McBurnie asking her whether it was “possible to stratify the risk of injury to Mr Shizas undertaking an occupational policing role into low/medium/high or [was] it impossible to quantify”. She did not receive a reply.

55    On 16 May 2014 Assistant Commissioner Connelly attended a teleconference with Mr Shizas and a person from the Human Rights Commission. According to the Assistant Commissioner, Mr Shizas claimed that Dr McBurnie had told him that the risk of injury caused by his condition was “low”. This was not Mr Connelly’s understanding of Dr McBurnie’s report, so he sought clarification.

56    Accordingly, on 3 June 2014, at Assistant Commissioner Connelly request, Dr Batchelor wrote again to Dr McBurnie:

Mr Shizas, the Australian Human Rights Commission and the AFP attended a teleconference to discuss the issues in relation to his medical clearance before a final decision was to be made by the AFP. Mr Shizas referred to your discussions on the day of his assessment. Mr Shizas indicated that from these discussions, he formed the view that the “increased risk” of injury to which you referred in your report was a fairly low and trivial risk. A comparison was made to an officer being at an increased risk of injury because they have a cold.

Mr Shizas’s impressions place the AFP in a difficult position, as the report does not indicate that the risk of injury is low. Could you please:

a)    provide comment on whether Mr Shizas was advised that the risk of injury was low; and

b)    provide any additional information to clarify the risk of injury to Mr Shizas?

57    Dr McBurnie’s response was dated 1 July 2014. She denied advising Mr Shizas that his risk of injury was low. In response to Dr Batchelor’s second question, she said:

My opinion was that Mr Shizas has an unquantifiable increase in risk of injury because of the ankylosing spondylitis when compared to an applicant who does not have ankylosing spondylitis. It is unquantifiable to the extent it is not possible to put any form of percentage to that risk.

If one were to use a descriptor such as trivial, minimal, low, etc I would not classify Mr Shizas’ increased risk as trivial or low.

To use the analogy of a cold I would suggest that the increased risk of injury as a result of an upper respiratory tract infection is trivial. On a relative scale the increased risk of injury with a chronic musculoskeletal condition such as ankylosing spondylitis although unquantifiable in the specifics is substantial. Also in relative terms the nature of the injury sustained given the same incident is likely to be more serious in somebody who has an underlying musculoskeletal condition such as ankylosing spondylitis when compared with a trivial illness such as a cold.

58    Dr Batchelor received a copy of this second report but thereafter she ceased to have anything to do with Mr Shizas’s case.

59    Assistant Commissioner Connelly also received a copy of this report. In his affidavit he said that he was particularly concerned by Dr McBurnie’s conclusion that the risk of injury was “substantial”. He said that he formed the view, based on this conclusion, that Mr Shizas could not perform the inherent requirements of the role of an operational police officer safely without injuring himself. He said there was no single document which set out what those requirements were but he annexed to his affidavit a number of documents, including several iterations of the AFP Medical Standards for Applicants to Undertake Recruit Training. Those Standards incorporated a document entitled “Inherent requirements for performing an AFP operational policing role — health perspective”.

60    On 10 July 2014 Assistant Commissioner Connelly sent Mr Shizas a letter advising him that he had reviewed the initial decision not to give him medical clearance for an operational policing role and had decided not to reverse it.

61    The parties agreed that this was the second occasion on which the Commissioner refused to employ Mr Shizas.

62    In cross-examination Mr Shizas said that he did not agree with the decision. Nevertheless, on 11 November 2014, with the leave of the President’s delegate, Mr Shizas withdrew his complaint to the Human Rights Commission. Instead, more than seven months later, on 19 June 2015, he commenced this proceeding. At that time he only complained about the first decision, but he was later granted leave (over the Commissioner’s objection) to amend his application so as to challenge the second also.

63    Before turning to consider the issues, it is necessary to say something more about the evidence concerning Mr Shizas’s condition.

64    Ankylosing spondylitis is described in the medical literature tendered in evidence as a chronic inflammatory rheumatic disease characterised by pain and inflammation of the spine and sacroiliac joints and/or peripheral joints. But it is a condition that does not invariably follow a particular course. The medical witnesses (including Dr Potter) were unanimous that at all material times Mr Shizas’s ankylosing spondylitis has been well-controlled with medication and that he has been physically fit and asymptomatic. None of them expressed the view that, because of his ankylosing spondylitis, Mr Shizas would expose other police officers and members of the public to a risk of injury. Yet, that was an inference that Assistant Commissioner Connelly drew, apparently without discussing the matter with any of the doctors. Dr Bertouch, an expert in the field of ankylosing spondylitis, considered that Mr Shizas was fit to perform all the duties of the position for which Mr Shizas had applied. He noted that there was no evidence of ankylosis at any level of Mr Shizas’s spine and that, although he had radiological evidence of fusion of the sacro-iliac joints, that was of no significance to his physical ability or activities, as the fusion has no effect on spinal movement or measurements. While a person with non-treated advanced ankylosing spondylitis with a rigid spine would be at increased risk of injury from minor trauma, Dr Bertouch said that Mr Shizas was not such a person. Dr Bertouch considered that, if Mr Shizas were involved in a fracas with a very aggressive or violent person, he was at no greater risk of injury either to himself or his colleagues than any other police officer.

65    In the four years during which Dr Bertouch has been treating Mr Shizas, there has been no deterioration in his condition. Dr Bertouch also said that it is not inevitable that Mr Shizas’s condition would deteriorate, contrary to what it seems Assistant Commissioner Connelly believed. Dr McGuigan considered it unlikely the disease would progress significantly, but that if it did the biological agents used to treat it would “probably prove extremely effective in controlling his symptoms”. Dr Bertouch noted that 95% of patients with ankylosing spondylitis have the gene HLA-B27 and that 5% of those people will eventually develop spondyloarthropathy and certain other conditions. But he pointed out that Mr Shizas does not have this gene, that this is “a good prognostic feature”. and it also makes it “much less likely” that he will develop any of those complications.

66    None of these opinions was undermined by any other evidence and I accept them.

The issues for determination

Is the Commissioner an employer for the purpose of s 351?

67    It was an agreed fact that the Commissioner was Mr Shizas’s prospective employer for the purpose of s 342(1) item 2 of the FW Act. No qualification or limitation was placed on the admission and the Commissioner never applied for leave to withdraw it.

68    Nevertheless, the Commissioner contended that s 351 does not apply in this case because the section does not apply to prospective employers, only “employers”. The contention must be rejected.

69    First, “employer” in this context has its ordinary meaning: FW Act, s 335. The ordinary meaning of “employer” is a person who employs people (Macquarie Dictionary, (Macquarie Library, 4th ed, 2005)), especially an individual who, or organisation that, pays a person to perform a service, particularly on a regular or contractual basis (Shorter Oxford English Dictionary, (Oxford University Press, 6th ed, 2007)).

70    Section 24(1) of the AFP Act gives the Commissioner, on behalf of the Commonwealth, the power to engage people as employees. The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees (AFP Act, s 23). The Commissioner is obviously an employer for the purposes of s 351(1) of the FW Act.

71    Secondly, if the Commissioner were right, then the term “prospective employee”, when used in s 351(1), would have no work to do. The absence in s 351(1) of the adjective “prospective” before “employer” makes no difference to the natural meaning of the section, despite the definition of “adverse action” in s 342(1). There can be no prospective employee without a prospective employer. As counsel for Mr Shizas put it, an employer can only ever be a prospective employer in respect of a prospective employee.

72    Contextual considerations support this construction. The purpose of s 351(1) was to extend the scope of the protection against discriminatory conduct in respect of termination of employment (previously provided by s 659(2)(f) of the Workplace Relations Act 1996 (Cth) and now covered by s 772 in the FW Act) to anything answering the definition of “adverse action”. To the extent that any support for this obvious proposition is necessary it can be found in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which states at [1424] that:

Clause 351 protects an employee or prospective employee from workplace discrimination. It is intended to broadly cover paragraph 659(2)(f) of the WR Act, which makes it unlawful to dismiss an employee for discriminatory reasons. However, the protection in clause 351 has been expanded to prohibit any adverse action (as defined in subclause 352(1)) on discriminatory grounds.

73    The Commissioner was a prospective employer insofar as Mr Shizas was concerned but he was an employer for the purposes of s 351.

74    In his outline of closing submissions, the Commissioner contended that Mr Shizas was no longer a “prospective employee” once the Commissioner refused to employ him on 22 March 2013 and that the “FW Act has no application to the decision making process undertaken by AC Connelly”. This is despite the fact that in his Statement of Issues the Commissioner stated that it was not in dispute that Mr Shizas was a prospective employee at the date both decisions were made. The contention is also at odds with what the Commissioner stated in a footnote to these same submissions, namely, that he accepted that Mr Shizas was a prospective employee during the period between March 20014 (when Assistant Commissioner Connelly commenced his review) and July 2014 (when he decided to refuse to employ him). This was consistent with the position he took in his outline of opening submissions.

75    The change of position was unexplained.

76    I reject the contention.

77    It seems to me that, unless the review by Assistant Commissioner Connelly was conducted in bad faith (something Mr Shizas never argued), Mr Shizas must surely have been a prospective employee at least from the time the Assistant Commissioner agreed to reconsider the original decision until the time he completed it.

Did the Commissioner refuse to employ Mr Shizas because of his disability?

78    Section 351 falls within Pt 3-1 of the FW Act. For the purposes of that Part, a person takes action for a particular reason if the reasons for the action include that reason (s 360), so long as the reason was “a substantial and operative reason”: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 249 CLR 500 at [104] (Gummow and Hayne JJ); see also French CJ and Crennan J at [59]). Moreover, where, as here, it is alleged in an application relating to a contravention of Pt 3-1 that a person took action for a particular reason and taking that action for that reason would contravene the Part, it is presumed that the action was taken for that reason unless the person proves otherwise: s 361(1). Thus, as the Full Court observed in Short v Ambulance Victoria [2015] FCAFC 55; 249 IR 217 at [54]–[56]:

To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; 91 IR 198 at [109] per Wilcox and Cooper JJ.

79    Nevertheless, in oral argument, Ms Eastman SC, who appeared with Mr Glover for the Commissioner, submitted that, once an applicant has established that he or she was a prospective employee of an employer and that the employer took adverse action against him or her, the applicant must make out “something by way of almost a prima facie case, or some sort of causal nexus to the circumstances” before the reverse onus in s 361 “kicks in”. In support of this submission Ms Eastman relied on the decision of the Full Court in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31].

80    The submission must be rejected. The analysis it invites is inconsistent with the plain words of the section and Khiani provides no support for it. In Khiani at [31] the Court was merely concerned to emphasise that “[t]he crucial issue in [a general protections] application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1”. The Court said nothing about who bears the onus of proving, or negating, the existence of that causal relationship. In the following paragraph, the Court made clear that it is the employer’s burden to disprove the causal connection.

81    That said, it is well established that the applicant must prove “the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action”; the onus does not shift merely upon the making of an allegation that the circumstance arises: Tattsbet Limited v Morrow (2015) 233 FCR 46 at [119] (Jessup J, Allsop CJ and White J agreeing). Here, the circumstance which is said to be the reason for the taking of the adverse action is the applicant’s disability. This was not a case where there was only an allegation about the existence of the relevant circumstance. The relevant circumstance was proved on the agreed facts.

82    The burden is on the Commissioner to prove that he did not refuse to employ Mr Shizas because of his disability. The focus of this inquiry must be on the reasons of the decision-maker but, in determining whether the burden has been discharged, it is necessary to balance the reliability and weight of the evidence adduced by both parties and the overall facts and circumstances of the case: Barclay at [127] (Gummow and Hayne JJ).

83    The first task, then, is to identify the decision-maker or makers.

The first decision

84    The first decision is the one that was communicated to Mr Shizas by Ms Ayers on 22 March 2013. Neither party suggested, however, that it was Ms Ayers who made the decision.

85    Mr Shizas did not identify the person who made this decision in his statement of claim, his affidavits, or his written submissions. Rather, he insisted that it was for the Commissioner to do so and that the Commissioner had not done so, let alone called that person to give evidence. He relied on the observation by French CJ and Crennan J in Barclay at [45] that, unless direct evidence is called from the decision-maker as to his or her reasons, “it will [generally] be extremely difficult to displace the statutory presumption in s 361”.

86    The Commissioner asserted that the relevant decision-maker was Dr Batchelor. The evidence, however, was to the contrary. Dr Batchelor, herself, said that she had no authority to make any decision. Assistant Commissioner Connelly was emphatic: “Dr Batchelor isn’t the decision-maker in employment. … Dr Batchelor is part of a process in relation to employment”.

87    Who, then, was the decision-maker?

88    As I have said, s 24(1) of the AFP Act gives the Commissioner, on behalf of the Commonwealth, the power to engage people as employees. Section 24(2) provides that the engagement of a person as an employee may be made subject to conditions notified to the employee including (in para (2)(e)) “health clearances”. There was no suggestion that the Commissioner had exercised any of the powers given to him under the AFP Act personally. But s 69C of the AFP Act empowers the Commissioner to delegate any of his powers, functions or duties under the Act. While there was no direct evidence from the Commissioner on this question, there was other evidence that tended to suggest such delegations had been made. First, there was the letter Mr Shizas received on 19 March 2013 from Joanna Farrow, making a conditional offer of employment in which Ms Farrow described herself as the delegate of the Commissioner. And there was the evidence of Dr Batchelor, who said at para 21 of her affidavit:

While the former AFP Medical Adviser, Dr Czoban, held the delegation to make decisions regarding whether or not the medical requirements for appointment to a FPABPO were satisfied, I did not hold that delegation in March 2013 and … never held that delegation.

89    In cross-examination Ms Batchelor confirmed that she did not make the decision not to employ Mr Shizas, and that, so far as she was aware, that decision was made by someone else.

90    It seems, then, that Ms Farrow held the delegated power, under s 24 of the AFP Act, to make conditional offers of employment, and that although Dr Batchelor’s predecessor held the delegated function of determining whether the medical clearance requirement was met, Dr Batchelor did not. Yet, the Commissioner called no evidence from Ms Farrow and led no evidence regarding the delegation of medical clearances after Dr Czoban’s departure from the AFP. It was not suggested that either was unable to give evidence.

91    In insisting that the relevant decision-maker was Dr Batchelor, in spite of both Dr Batchelor’s and Assistant Commissioner Connelly’s evidence to the contrary, the Commissioner emphasised that Pt 3-1 of the FW Act is concerned not with decision-making per se, but with adverse action and the reason it was taken. The Commissioner submitted that an excessively fine-grained focus on the identity of the decision-maker was a “red herring” that would obscure the true issue, which is why he refused to employ Mr Shizas. He submitted, in effect, that the repeated focus on the “decision-maker” in the authorities should be understood as simply shorthand for the person “whose actions or whose thought process or whose authorisation brought about the adverse action”. Ms Eastman submitted that that person was Dr Batchelor, because:

[i]t was her assessment of the medical evidence and her opinion that the applicant was not suitable for recruitment; that is the cause of the decision to refuse. And in that respect, it’s her opinion that causes the advice to the applicant on 22 March, that he had not met the medical gateway.

92    She continued:

So the question that one focuses on is what was the reasoning in relation to Dr Batchelor’s decision? And as I’ve said, I will use that decision. I don’t mean that in the sense of a valid delegated decision.

93    It may be accepted, for present purposes, that Pt 3-1 is not concerned with whether there was a “valid delegated decision”. As the Commissioner submitted, it is concerned with adverse action and the question of whether adverse action was taken because of a prohibited reason is one that must be answered as a matter of fact. French CJ and Crennan J emphasised in Barclay (at [44]) that,“[although] the imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question … the central question remains ‘why was the adverse action taken?’”. Generally speaking, however, unless the person who took the action is identified, it is not possible to determine why.

94    It may also be accepted that whoever ultimately made the decision to refuse to employ Mr Shizas in March 2013 probably acted in large part, if not entirely, on the basis of Dr Batchelor’s opinion. Certainly it was Dr Batchelor’s view that her notation on Mr Shizas’s medical form on 19 March would “lead to” his “exclusion” as an AFP recruit. As the evidence made clear, however, her assessment was only a part of the process.

95    In her closing argument, Ms Eastman said that “when [it] comes to Barclay ... what’s clear is that you’re not looking for a person in a sense who has the rubber stamp. You’re looking at why … that decision [was] made”. But, as Gray J pointed out in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139 at [25] (NTEU), “Barclay was a case in which there was a single decision-maker, who made the decision to take adverse action against the employee concerned”. If this were such a case, then in the absence of evidence from the decision-maker the presumption would operate. If it were not, Gray J observed in NTEU that there are earlier authorities that deal with circumstances “in which there is collaboration between officers of an employer at various levels in the employer’s hierarchy, leading to an ultimate decision”. His Honour summarised some of those authorities at [26]–[28].

96    At [26] Gray J observed:

It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

The same can be said of states of mind other than knowledge, such as reason or intent …

97    Other relevant authorities were summarised in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 at [112]–[119].

98    The authorities make two principles of present relevance abundantly clear.

99    The first is that part of the Court’s task is to determine whose mind or minds is “the operative mind of [the employer] in making the decision”: NTEU at [29]. Where a decision is made as the result of collaboration between different officers of an employer (rather than, for example, by a committee), the inquiry is directed at the mind of the ultimate decision-maker. If that ultimate decision-maker merely “rubber stamps” a decision in fact made by another, then the other person’s improper purpose will infect the ultimate decision: Gibbs v Palmerston Town Council [1987] FCA 732; see also NTEU at [28]–[29] and Clermont Coal at [113]–[115].

100    Here, even if Dr Batchelor is taken to be a decision-maker, the evidence does not disclose whether the ultimate decision-maker merely rubber stamped her decision or gave the matter independent consideration. Certainly it was Dr Batchelor’s belief that her opinion would “lead to” the exclusion of Mr Shizas, but that does not answer the question. In any event, her belief is entitled to little, if any, weight since she did not explain the basis for it. In short, there was simply no probative evidence to show how Dr Batchelor’s remarks on the AFP Medical Form turned into the refusal of employment that was communicated to Mr Shizas by email on 22 March 2013.

101    The second principle relates to the onus of proof borne by the employer. It is that to discharge the onus, the employer must generally lead evidence to show that the reasons of the decision-maker (or, where the decision is made by a committee, the decision-makers: Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 at [37]) did not include the proscribed reason: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 612 (Gibbs J), 617 (Mason J). As Gray J said in NTEU:

What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

102    That is why it is “extremely difficult” for an employer to discharge the onus under s 361 without leading direct evidence from the decision-maker or makers, as the case may be. In Bowling, for example, the two directors responsible for the ultimate decision to dismiss Mr Bowling were not called to give evidence. In holding that General Motors had not discharged its onus, Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, observed that its unexplained failure to call the two Melbourne directors “left uncontroverted the possibility that [Mr Bowling’s] position as a shop steward was an influential, perhaps even decisive consideration in their minds” (at 619). As Reeves J observed in Clermont Coal, this led to the High Court’s conclusion that General Motors had not discharged its onus under an earlier provision equivalent to s 361. As his Honour also observed, Bowling was cited with approval in each of the three separate judgments given in Barclay: French CJ and Crennan J at [45], [50], [53] and [56]; Gummow and Hayne JJ at [126]; and Heydon J at [149].

103    In Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, Evatt J found that the council had merely “rubber stamped” the recommendation of its finance committee to dismiss Ms Voigtsberger. Eight committee members made the recommendation but only two were called to give evidence. Evatt J held that:

even if it were accepted that the minds of both [the two committee members] were not so actuated, the defendant would still not have discharged the onus of proof placed on it … In order to so discharge that onus it was necessary … that the defendant call at least a majority of the 8 councillors present at that meeting of the finance committee and for the Court to have accepted the evidence of such a majority of the councillors that they were not so actuated.

104    In the present case, the adverse action taken was a refusal to employ Mr Shizas. It follows that someone, at some time, must have decided that he should not be employed. The Commissioner submitted that Dr Batchelor’s opinion was the “cause” of the Commissioner’s refusal to employ Mr Shizas, but he offered no proof of that fact. Both Dr Batchelor and Assistant Commissioner Connelly said that it was not Dr Batchelor who made the decision, and no evidence was led to show who did and on what basis that person acted. As in Bowling, the failure to call such evidence was wholly unexplained.

105    I therefore conclude that the Commissioner has not discharged his onus of showing that Mr Shizas was not refused employment in March 2013 because of his physical disability and I find that, by refusing him employment at that time, the Commissioner took adverse action against Mr Shizas because of that disability within the meaning of s 351(1) of the FW Act.

The second decision

106    The parties agreed that the July 2014 decision was made by Assistant Commissioner Connelly.

107    There was a dispute about the nature of the decision. The Commissioner characterised it as a decision to refuse to employ Mr Shizas, Mr Shizas as a continuation of the earlier refusal. Once it is accepted, however, that there was a second decision, nothing appears to turn on the distinction.

108    It will be recalled that Assistant Commissioner Connelly told Mr Shizas of his decision in a letter dated 10 July. The letter reads as follows:

Review of medical clearance gateway

I refer to your complaint made to the Australian Human Rights Commission after you were not medically cleared to undertake an operational policing role at the Australian Federal Police (AFP) due to your degenerative back condition, ankylosing spondylitis.

Following receipt of your complaint, the AFP agreed to review this decision and sought the advice of an occupational physician, Dr McBurnie.

On 16 May 2014, I attended a teleconference with you to allow you to provide any information you considered relevant before I made a final decision about medical clearance. During the teleconference, you indicated that you considered that the increased risk of injury caused by your medical condition was low. I did not agree that the report of Dr McBurnie supported the view that your increased risk of injury was low. In response to this difference of opinion, I sought further information from Dr McBurnie. In her response, Dr McBurnie advised that she would not classify your increased risk as trivial or low.

I have carefully considered all of the information available to me, including the information from your specialist, the reports of Dr McBurnie and the information you provided during the teleconference on 16 May 2014.

Unfortunately, I am not satisfied that you would be able to safely perform the role of an operational police officer. I have considered whether any adjustments could be made to lessen the risk of injury to you, but I have been unable to identify any adjustments that would not change the fundamental nature of the role. As a result, I cannot reverse the original decision to refuse medical clearance.

I understand that you have a strong and genuine desire to undertake an operational policing role at the AFP and this decision will be disappointing to you. However, my fundamental concern is your safety and I cannot, in all good conscience, place you in a position in which you face an unacceptable risk of injury.

109    In his affidavit Assistant Commissioner Connelly said that it was not uncommon for police officers to suffer injuries in the course of their duties and that this matter was of particular concern to the AFP because it has one of the highest Comcare premiums of all Commonwealth agencies. He also said:

During my service I have witnessed or known of many police officers suffering back injuries given the requirement for use of force in their day to day roles and during training. As Mr Shizas already had a weakness in his back as a result of his condition, I was concerned that he was at increased risk of injury when performing the inherent requirements of a police officer including during training or when he was performing operational duties.

110    The Commissioner contended that Assistant Commissioner Connelly did not refuse to employ Mr Shizas because of his ankylosing spondylitis but because Mr Shizas “faced an unacceptable risk of injury in the future”. In other words, as Ms Eastman put it, “the reason why there might be risk is the underlying disability but that’s a different inquiry [from] whether or not disability per se actuated the decision”.

111    This submission assumes that for the purposes of s 351 a distinction can and should be drawn between, on the one hand, Mr Shizas’s disability of ankylosing spondylitis and, on the other, its manifestations or effects.

112    This distinction between a disability and its manifestations was rejected by Perry J in RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424. In that case a train driver who had post-traumatic stress disorder and moderately severe depression as a result of a train crash became violently ill when required to drive a train and was dismissed from his employment after he refused to undertake an assessment of his competence to drive trains. The driver, Mr Flavel, applied for compensation and other relief under the FW Act. The Federal Circuit Court judge who heard the application found that his employment had been terminated because of a physical and mental disability (amongst other reasons) in contravention of s 351 of the FW Act. That finding was challenged on appeal and found to be in error. In the course of her reasons, however, Perry J said (at [123]–[124):

123    Smith FM in Stephens v [Australian Postal Corporation [2011] FMCA 448; 207 IR 405] agreed at 440 [86] that, in the absence of any statutory definition, the word [disability] should be construed by reference to its ordinary meaning. However, his Honour further considered at 440 [86]–[87] that:

… that meaning is to be considered in the context of the statutory objects of the provision, which is to proscribe adverse action when taken because the employee has one of a variety of personal attributes which are specified in the section. The section operates in a real world, where an employer might otherwise be tempted to take adverse action by reason of one of these attributes, motivated by a variety of considerations including irrational prejudices or a rational belief that the employer’s business would benefit materially by removing a person with that attribute from its workforce. …

Where it is intended that a ‘physical or mental disability’ may be one of these attributes, it would not, in my opinion, be a proper construction of the words to limit them in an overly refined way to the underlying diagnosed medical or physiological or psychological condition. Some of the inherent consequences of the underlying condition on the personal capacities of the disabled person, including some of the inherent consequences of the medical condition bearing on the employee’s presentation as a person and his or her work performance must be intended to be part of the employee’s ‘disability’. So much, in my opinion, would be consistent with the dictionary definitions’ references to ‘incapacity’ and ‘that limits a person’s movements, activities, or senses’.

124    I agree that the term “disability” cannot be limited to the “underlying diagnosed medical or physiological or psychological condition”. Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object. For example, it may permit adverse action because of its manifestation in an unsightly skin condition. That such manifestations or symptoms are embraced within the term is consistent with the existence of the defence, for example, in s 351(2)(b) of the FW Act excluding adverse action taken because of the inherent requirements of the job. Thus, as Smith FM explained in this regard in Stephens v APC at 441 [88], this “defence” permits adverse action by reason of a disability “where it can be shown that functional or practical effects of a disability are incompatible with the employment of the disabled person.” …

113    The Commissioner relied on the observations of the Full Court in Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; 246 IR 441, to which Perry J did not refer in her reasons and to which her Honour was presumably not referred.

114    That case arose from a claim under s 351(1) by a solicitor (Mr Grant) who had been employed by the Victorian Office of Public Prosecutions. Mr Grant’s employment was terminated after he was found guilty of misconduct for failing to follow lawful directions related to his attendance and work performance. It was not in dispute that Mr Grant suffered from a mental disability within the meaning of the FW Act, but the decision-maker, a Mr Hyland, denied that the disability played any part in the making of his decision. The primary judge found that Mr Hyland’s evidence had been “given honestly”, but involved “a measure of unconscious reconstruction” and that it was “obvious from the circumstances” that Mr Grant’s “ill health played a part in the decision-making process”. The primary judge held that, even if the disability did not “intrude on Mr Hyland’s consciousness”, “as a matter of cause and effect Mr Grant’s illness was quite clearly a part of the reason why he was dismissed”, because “[i]t was his illness on any view that led him to do the things that he did that caused his dismissal, and Mr Hyland well knew of the illness”.

115    The Full Court allowed the appeal. The Court rejected the primary judge’s finding that Mr Grant’s misconduct “was completely interwoven with his medical condition” and the related finding that “the misconduct and ill health ‘could not be disaggregated’”.

116    Tracey and Buchanan JJ found (at [58]) that “[t]he medical evidence did not expressly or impliedly link the misconduct and the illness”. Their Honours said (at [53]) that the primary judge’s finding was also inconsistent with the decisions of the High Court in Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243. After considering those authorities, their Honours said (at [57]):

It is ... possible, depending on the evidence, for what the primary judge called “disaggregation” to occur when ss 360 and 361 of the Fair Work Act are being applied. As these authorities demonstrate it is possible for there to be a close association between the proscribed reason and the conduct which gives rise to adverse action and for the decision-maker to satisfy the Court that no proscribed reason actuated the adverse action.

117    White J, who concurred, also considered that the evidence linking Mr Grant’s behaviour and his illness was “at the least, incomplete” (at [79]). But his Honour additionally considered the alternative hypothesis that the condition and the behaviour were in fact linked. In doing so, his Honour appeared to rely on a distinction between the cause of a disability and its effects, a distinction that was rejected (for the purposes of the Disability Discrimination Act) by five members of the High Court in Purvis v New South Wales (2003) 217 CLR 92 at [67], [212], and [230]. His Honour said:

accepting for the moment that there was a causal relationship between Mr Grant’s conduct and his health condition, or that the two were “completely interwoven”, it did not mean that Mr Hyland’s evidence that it was the effect, and not the cause, which was the reason for the dismissal could not be accepted, nor did it mean that Mr Hyland must necessarily have made his decision for a prohibited reason.

118    Nonetheless his Honour acknowledged that:

There may perhaps be some medical conditions in which the condition and its manifestations are indistinguishable, or in which the affected person’s conduct may to a degree be involuntary. This may make disaggregation of the condition and the manifestation a difficult, if not artificial, exercise.

119    But the question here is not whether a condition and its manifestations may be disaggregated; it is whether a particular disability can be severed from its manifestations. With the greatest respect, absent a statutory definition to that effect, which is missing from the FW Act, I have real difficulty with the notion that “disability” can ever exclude the manifestations of a condition. In the absence of a statutory definition, one must look to the ordinary meaning of the word. In its ordinary meaning “disability” denotes both the condition and its manifestations. “Disability” is relevantly defined in the Shorter Oxford English Dictionary ) as:

1.    Lack of ability (to do something); inability, incapacity. Now rare.

…

3.    An instance of lacking ability; now spec. a physical or mental condition (usu. permanent) that limits a person’s movements, activities, or senses, esp. the ability to work ...

120    Similarly, the Macquarie Dictionary on-line relevantly defines “disability” as:

1.    lack of competent power, strength, or physical or mental ability, incapacity.

2.    a condition which restricts a person's mental or sensory processes, or their mobility …

121    In any event, it would be “difficult, if not artificial” to draw a distinction between ankylosing spondylitis and its manifestations. To say that a person has ankylosing spondylitis is to say that he or she has, or may be susceptible to, problems of a particular kind with his or her spine and related joints. The relationship of a disability to its manifestations is not one of cause and effect; it is between a label and the things to which the label refers. Ankylosing spondylitis is “a chronic inflammatory rheumatic disorder”, primarily affecting the spine. Its hallmark is sacroiliitis (inflammation of the sacrum) accompanied by inflammation of the entheses (the points of union between tendon, ligament, or capsule and bone) and formation of syndesmophytes (bony growths originating inside a spinal ligament), which in the later stages of the disease lead to spinal ankylosis (or fusion). See CM McVeigh and AP Cairns, “Diagnosis and management of ankylosing spondylitis”, (2006) 333 British Medical Journal 581, annexed to Dr Potter’s report.

122    It would be entirely artificial to say that Assistant Commissioner Connelly’s opinion was formed because of Mr Shizas’s spinal infirmities (or at least the Assistant Commissioner’s perception of them) and not because of Mr Shizas’s ankylosing spondylitis. It would be as artificial as saying that a person was refused employment not because he was a paraplegic, but because he had no control over his legs.

123    It is unnecessary to consider whether the relationship between ankylosing spondylitis and its manifestations is different from the relationship between a mental disability and voluntary behaviour which is in some sense “caused” by it. The statements in Grant upon which the Commissioner relies were obiter dicta. The link between the mental disability and the behaviour was not established on the evidence. As Brennan CJ said in Qantas Airways Ltd v Christie (1998) 193 CLR 280 (Qantas v Christie),

The experience of the courts of this country in applying antidiscrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.”

124    Of course, this is not to deny that it is well established, in a line of cases stretching back at least from Barclay, that where the same circumstance can give rise to more than one consideration in the mind of a decision-maker, the Court must have regard to the decision-maker’s “actual motives”: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [77] (Perram J). Thus adverse action is not prohibited where it is taken because of offensive or inappropriate behaviour, even if that behaviour occurred during protected industrial activity (Barclay; BHP Coal). Nor is adverse action prohibited where it is taken because of an unreliable attendance record, even where that unreliable attendance record is the result of taking personal leave, which is a workplace right under the FW Act (Endeavour Coal). But this is not a case of one fact that can give rise to two different considerations in the mind of a decision-maker. The considerations are the same. The distinction the Commissioner seeks to draw is between a label and the things to which the label refers. It is a distinction without a difference.

125    Further, even if a distinction could sensibly be drawn between a disability “per se” and the limitations and vulnerabilities that make up that disability, in my opinion, as a matter of statutory construction, the word “disability” in s 351 must include both. If the prohibition in s 351(1) extended only to adverse action taken because of the protected attributes “per se”, it would be a rare situation in which the defence in s 351(2)(b) would have any work to do. It would only apply where the inherent requirements of a particular position dictated that a person could not, for example, be pregnant (not because of any vulnerability or incapacity caused by pregnancy but simply because she is pregnant, “per se”), not have any family or carer’s responsibilities (not, for example, because of any consequence that may have for the person’s availability for work, but simply because the person has family or carer’s responsibilities, “per se”), be of a particular religion (not, for example, because of any effect that may have on when the person could work or what kind of work the person could do, but simply because the person is of a particular faith, “per se”). Just about the only kind of circumstance in which the defence would operate would be a circumstance of the peculiar kind arising in Qantas v Christie where, because of the operation of an international convention and foreign domestic laws, age “per se” prohibited pilots from flying to many of the airline’s destination countries.

126    With all this in mind, it is clear that Mr Shizas has made out his case under s 351(1). Assistant Commissioner Connelly claimed that he refused to employ Mr Shizas because of the inherent requirements of the particular position for which Mr Shizas had applied. All the medical evidence indicated that Mr Shizas was physically fit and asymptomatic. There was only one reason that Assistant Commissioner Connelly believed that Mr Shizas lacked the ability to meet the inherent requirements of the position. That was because he had ankylosing spondylitis. Mr Connelly relied on Dr McBurnie’s reports. Dr McBurnie said that “[i]n theory a chronic inflammatory musculoskeletal condition [by inference, such as ankylosing spondylitis] would predispose to an increased risk of injury in any physical activities including duties of operational policing”. That predisposition was the Assistant Commissioner’s abiding concern. The predisposition was an aspect of Mr Shizas’s physical disability. Consequently, I find that the disability was a substantial and operative reason for the Assistant Commissioner’s decision.

127    Even so, if the Assistant Commissioner’s decision was also made because of the inherent requirements of the particular position, the effect of s 351(2) is that Mr Shizas must fail. It is to that question which I now turn.

Was the action taken because of the inherent requirements of the position?

128    The Commissioner rightly accepted that the burden is on the employer to prove that adverse action was taken because of the inherent requirements of “the particular position concerned”. Although the exception in s 351(2)(b) does not come within the terms of the reverse onus provision in s 361, it is highly unlikely that Parliament intended the onus to lie with the employee to prove the negative, particularly in relation to a matter such as this that would be peculiarly within the knowledge of the employer.

129    In determining whether the Commissioner has discharged his onus of proof it is first necessary to identify “the particular position concerned”, and then to determine whether each of the two decisions was made because of the inherent requirements of that position.

The particular position concerned

130    Mr Shizas submitted that the “particular position concerned” for the purposes of s 351(2)(b) of the FW Act was the position of FPABPO, the terms of which were set out in Ms Farrow’s conditional offer of employment of 19 March 2013.

131    Ms Farrow’s letter indicated that, provided the various gateways were met, Mr Shizas would be employed by the AFP and placed on the 26 week Federal Police Development Program at the AFP College in Canberra. Ms Farrow stated in the letter that upon successful completion of the program he “[might] be declared a Member of the AFP pursuant to Section 40B” of the AFP Act.

132    Mr Shizas emphasised, as the language of the letter suggests, that the FPABPO position was merely a position as a “recruit” that would not automatically lead to an appointment as a sworn police officer. In this respect he also relied on the evidence of Assistant Commissioner Connelly and Ms Crump that Mr Shizas had applied for a position as a “recruit”; that a recruit would not be sworn as an officer unless and until he or she successfully completed the training course; that it is only a sworn police officer who undertakes operational policing; and that a recruit who did not complete the training course, or chose to drop out of the course, could be employed as an unsworn officer or alternatively leave the AFP. He submitted that “going to college as an employee under s 24 of the AFP does not inexorably or inevitably lead to you becoming a sworn police officer under [s] 40B ... and the particular position ... for which he was refused employment, was that which he had been offered, namely, engagement as an employee of the AFP and placement on the Federal Police Development Program for 26 weeks.”

133    In the statement of agreed facts, the Commissioner agreed that the position for which Mr Shizas applied was that of FPABPO, and in his closing submissions he accepted that this was the “particular position concerned”. But in oral argument, Ms Eastman submitted that “it would be an absurd result to say that what the AFP was offering was the opportunity to do training and then at the end of the training, well, let’s just see one way or the other”. She contended that, looking at the offer in Ms Farrow’s letter as a whole, the particular position was not just 26 weeks of training, but “putting him into Sydney Airport for ... a minimum of two years at which time a transfer to another role may be enabled through response, either an advertised vacancy or an expression of interest”.

134    Counsel for both parties drew the Court’s attention to the statement by Gummow J in Qantas v Christie at [114] that a position is to be identified as the “particular bundle of contractual rights and obligations, supplemented ... by the operation of statute”. Characterising the position in that way rather supports Mr Shizas’s contention. The position for which Mr Shizas applied required him only to undertake the Federal Police Development Program. There was no guarantee of appointment to an operational policing role beyond that point. Unless and until Mr Shizas completed the program successfully, he would not be appointed as a member of the AFP under s 40B of the AFP Act and he would therefore be neither authorised (by s 9 of the AFP Act), nor required, to undertake operational policing duties.

135    I do not accept, therefore, the Commissioner’s submission that the “particular position concerned” was an ongoing one that included, or would include, the tasks and duties of an operational police officer. The evidence was that Mr Shizas was refused employment in a training position.

136    Equally, however, the training program is not an end in itself. The function of the AFP is not to run the Federal Police Development Program; it is to provide police services (AFP Act, s 8). The only interest the AFP has in training a person to become a police officer is to employ that person as a police officer once trained. It does not detract from that proposition to admit that there may be other options for those who choose to leave the program and those who do not pass muster. It would be an absurd construction of s 351 if an employer was required to accept into a training program a candidate who was incapable of undertaking the duties for which he or she was being trained. In this regard, it is well settled that the inherent requirements of a position include not only the physical and mental capacity to perform the “job”, but also such requirements as are made essential by reason of the way the employer has structured its operations: Qantas v Christie at [1] (Brennan CJ), [33] (Gaudron J) and [72]–[73] (McHugh J); see also X v Commonwealth (1999) 200 CLR 177 at [36]–[37] (McHugh J).

137    While the particular position concerned in this case was a position in the Federal Police Development Program, the nature of that position within the AFP dictated that it was an inherent requirement that Mr Shizas be physically capable of meeting the requirements of operational policing. That is made clear in the AFP Medical Standards for Applicants to Undertake Recruit Training. Those Standards provide that:

All recruits are assessed for their suitability for operational work during Operational Safety Training.

They also stipulate that:

[A]pplicants for sworn policing and Protective Service Officer roles must be capable of undertaking the full range of operational policing duties.

The first decision

138    Since the Commissioner failed to discharge his burden of proof in relation so s 351(1), the question under s 351(2)(b) does not arise. If it did, the Commissioner would fail to discharge his burden under that subsection for the same reason. Without identifying the decision-maker and calling that person to give evidence or demonstrating in some other way how Dr Batchelor’s opinion was transformed into a refusal of employment, the Commissioner could not possibly prove that the action was taken because of the inherent requirements of the particular position concerned.

139    Further, even if it were assumed that the ultimate decision-maker (whoever that was) considered Dr Batchelor’s opinion and gave it weight, Dr Batchelor’s views on Mr Shizas’s ability to meet the inherent requirements of the position could not have been the cause of the refusal, because, if at that point she had any views on that subject, she kept them to herself. The evidence discloses that Dr Batchelor provided Mr Shizas’s medical form to Mr Creech but, until her review in January 2014, the only comment she made on the form was that Mr Shizas “d[id] not meet medical standards due to ankylosing spondylitis”. Even in the notation she made on 29 January 2014 she made no reference to the inherent requirements of the position.

140    Accordingly, I am satisfied that the Commissioner contravened s 351(1) of the FW Act by refusing to employ Mr Shizas in March 2013.

The second decision

141    Assistant Commissioner Connelly said that he decided to refuse Mr Shizas employment because he did not meet the inherent requirements of “the role”, in that he was not satisfied that Mr Shizas could safely undertake operational policing. He said that he believed, based on his understanding of Dr McBurnie’s report, that Mr Shizas was at an increased risk of injury because of his ankylosing spondylitis when compared to an applicant who did not have ankylosing spondylitis and that, while unquantifiable in the specifics, this increase was not trivial or low but “substantial”.

142    Assistant Commissioner Connelly also said that he believed it was important that Mr Shizas be able to perform the role safely because the AFP had a duty of care to:

    Mr Shizas, “not to injure him further”;

    Mr Shizas’s colleagues, in particular those with whom he was partnered, who may be left alone in a fracas if Mr Shizas were to be injured; and

    the public, to “ensure our officers are equipped and fit to do their job so that we can serve and protect the community particularly from incidents of violence”.

143    When he considered what the role required, he said that he had regard to the following factors:

(1)    that all operational police officers are required to be armed during their shifts and must wear an accoutrement belt, weighing over 7kg, at all times;

(2)    that uniformed AFP officers are currently issued with 4kg ballistic vests that must be worn at all times;

(3)    that all sworn police officers commence their careers as general duties police officers and remain as such for 3–4 years or longer;

(4)    that “nearly half of the AFP policing function performs general duties, counter terrorism first response, or security roles including roles in ACT Policing, Aviation or Protection”;

(5)    that the tasks involved in general duties policing, including community policing and Aviation policing roles include:

(a)    “mobile” (presumably automobile-based) and foot patrols;

(b)    executing search warrants, including in potentially dangerous situations;

(c)    apprehending escapees, persons unlawfully at large or wanted on warrants;

(d)    responding to violent extremists;

(e)    responding to, and diffusing, violent incidents including but not limited to domestic violence incidents, assaults, robberies, public order violence, alcohol and or drug related violence, traffic duties, and dealing with persons suffering from mental illness;

(6)    that operational policing might involve Mr Shizas needing to wrestle another person, being placed in a headlock, and twisting and bending over to escape a headlock, which would place a lot of pressure on his back;

(7)    that duties involved in an aircraft may include physical altercations in a confined space;

(8)    that the recruit training was “very physical” and would involve “role playing” scenarios, including simulating “takedowns, arrests, escaping and executing holds and handcuffing non-compliant offenders”; and

(9)    that Mr Shizas would need to be ready to be deployed to remote locations overseas at short notice, where medication of the kind that he requires, or may require in future, is not easy to come by.

144    Assistant Commissioner Connelly said that the training recruits undergo (and I infer therefore the requirements of the position of FPABPO) includes operational safety training which, in turn, includes “use of force training”. He explained:

This training covers scenarios that may arise in day to day policing such as implementing control methods, escort holds, appropriate use of handcuffs, batons and firearms, searching persons, vehicles and premises, ground defence and defence against strikes, grabs and body holds.

145    Assistant Commissioner Connelly also said that his understanding of the inherent requirements came from his personal experience as an operational police officer for over 32 years, including the training and day to day policing duties he described. Although annexed to his affidavits were several documents purporting to be medical standards for various AFP roles at various times, the Assistant Commissioner said that “there is no single document which sets out the inherent requirements of an AFP police officer”.

146    Mr Shizas made extensive submissions against the proposition that Assistant Commissioner Connelly refused to employ him because of the inherent requirements of the position. Those submissions may be grouped into five broad propositions:

(1)    that, irrespective of what Assistant Commissioner Connelly believed, at all material times Mr Shizas did in fact meet the inherent requirements of the particular position;

(2)    that the Assistant Commissioner had regard to matters that were not in fact inherent requirements of the particular position;

(3)    that Assistant Commissioner Connelly considered a “stereotype” of a person with ankylosing spondylitis, rather than Mr Shizas himself with his particular disability;

(4)    that Assistant Commissioner Connelly misunderstood Dr McBurnie’s report; and

(5)    that it was not an inherent requirement of the particular position that the safety of Mr Shizas and those around him be “guaranteed”.

147    I will deal with each of these in turn.

148    The legal premise of the first proposition is that it is the actual capacity of the prospective employee to meet the inherent requirements of the position that is to be taken into account for the purposes of s 351(2)(b), not simply the reasons of the decision-maker.

149    The factual foundation for the proposition was the consensus of opinion held by the parties’ experts that, at the times of their respective examinations, Mr Shizas met what the Commissioner pleaded were the inherent requirements of the particular position. Dr McGuigan believed that it was unlikely that Mr Shizas’s disease would change substantially over the next few years. Dr Bertouch said that any deterioration of Mr Shizas’s condition would be “more likely to be very slow with progression occurring over many years”. Both Dr McGuigan and Dr Bertouch emphasised that several treatment options are available if Mr Shizas’s condition were to progress. Dr Potter agreed that Mr Shizas would likely continue to meet the inherent requirements for at least two years, while at five years he only said that it was “not guaranteed” that Mr Shizas would be fit to perform the role and it was “unclear” if he would be at a greater risk of injury than any other police officer. Dr McBurnie’s reports were admitted into evidence only for the limited purpose of showing the material relied on by Assistant Commissioner Connelly in forming his opinion and making his decision.

150    While the medical evidence (or at least the preponderance of it) might well suggest that the Commissioner’s decision to refuse to employ Mr Shizas was harsh or unfair, Mr Shizas’s submission did not grapple with the question posed by para 351(2)(b).

151    The Commissioner is not required to prove that Mr Shizas did not at the relevant time meet the inherent requirements of the position. He is required to prove that the adverse action was taken “because of” those requirements. Like ss 340(1)(a), 340(2), 346 and 351(1), which employ the same phrase, s 351(2)(b) is concerned with the reason for the adverse action. In this respect the provision is very different from s 21A of the Disability Discrimination Act, which exempts from the prohibition against disability discrimination, discrimination by a person relating to particular work if, “because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work …” Section 21A of the Disability Discrimination Act is concerned with whether the disability would in fact preclude the aggrieved person from performing the inherent requirements of the position. Paragraph 351(2)(b) of the FW Act is not. It is concerned with the reasons of the person who took the action.

152    There may be cases, such as this one, where the evidence suggests that the prospective employee satisfies the inherent requirements of the particular position, despite what the decision-maker may say. In some of those cases that suggestion may support an inference that the decision was not taken for the stated reason. But I do not draw that inference here. That is because I do not doubt, as I explain below, that the Assistant Commissioner genuinely believed that Mr Shizas did not satisfy those requirements.

153    The second proposition was that the matters the Assistant Commissioner took into account were not actually inherent requirements of the particular position.

154    For the most part the argument in support of this proposition focused on the fact, conceded in Assistant Commissioner’s Connelly’s letter of 10 July, that he had considered the requirements of operational policing, and not simply the requirements of the training program that Mr Shizas would undertake as an FPABPO. This aspect of the submission has been dealt with above.

155    A related submission was that the Assistant Commissioner, on his own admission, had taken into account what he said were the inherent requirements of “the sum total of all policing together”, and indeed were the requirements of “any role he ... would decide to go into or was found suitable to go into”. In particular, Mr Shizas took issue with the fact that Dr McBurnie, upon whose report the Assistant Commissioner relied, was told that the physical requirements of the role included being able to “deploy overseas at short notice if required, including to the Asia-Pacific region and Africa” and being able to “[w]ear a ballistics vest weighing up to 20 kilograms for long periods of time”. Mr Shizas complained that these capabilities were not essential to the position of an FPABPO.

156    With respect to overseas deployment, Dr Batchelor said that she understood that Assistant Commissioner Connelly “felt that people who were coming into the college needed to have the ability to deploy overseas”. The Assistant Commissioner confirmed this was his view.

157    In cross-examination, the Assistant Commissioner was taken to the following statement in the AFP’s “Medical Standards for Applicants to Enter Recruit Training” (effective 29 April 2013):

Applicants with certain medical conditions should be advised that while the condition will not prevent them undertaking AFP recruit training, for safety reasons the condition may result in restrictions on the roles they may undertake, including specialist operational duties and/or overseas deployments. Examples of these conditions include mild colour vision deficiency and taking immunosuppressive medication.

158    Mr Goot SC, who appeared for Mr Shizas with Mr Prince, then put to the Assistant Commissioner that “there was no requirement in any document applying at the time that [he] considered these matters in 2014 to the effect that everyone had to be deployed, or everyone should be capable of being deployed overseas”. In the confusion that followed, however, the question was never answered.

159    In any case, the statement in the 2013 Medical Standards was not directed at applicants with ankylosing spondylitis, because the same document listed ankylosing spondylitis as one of a number of “medical conditions that will prevent a person from being able to satisfy and effectively undertake AFP recruit training and perform an operational role”. That exclusion did not appear in the earlier iteration of the AFP Medical Standards.

160    With respect to the 20 kilogram vest, Dr Batchelor conceded that it was not needed in “standard operational policing” but said that it might be required in “special circumstances”. The Assistant Commissioner, on the other hand, said that “all police” wore the heavier vests when siege situations arose, and that the vests were used in recruit training as well. The Assistant Commissioner was in a better position to know the facts than Dr Batchelor.

161    When it was put to Assistant Commissioner Connelly that the documents annexed to his affidavit that purported to set out the requirements for the role did not contain any reference to a 20 kilogram vest, he said “if you restrict your view of the world to the documents and the documents alone of the inherent requirements of a police officer, then you’re not understanding those things because those are the things we have to do.” He rejected the suggestions, when put to him, that he believed he could “add to the inherent requirements as he wished and when he pleased” and that the briefing letter to Dr McBurnie “applied different standards of medical fitness to Mr Shizas than applied to other potential recruits who had not come to [his] attention because of AS”.

162    Assistant Commissioner Connelly’s evidence is consistent with the following statement in the Medical Standards which were in place at the time of Mr Shizas’s application for employment and at the time of his medical examination by Dr Oey that:

Inherent requirements of the sworn police officer and Protective Services Officer role where an individual’s health can impact include, but are not limited to: …

(Emphasis added.)

163    Furthermore, the physical requirements listed below that statement included:

Wear police issue accruements, including vests and helmets.

164    Besides, this second submission does not take Mr Shizas very far. The inherent requirements of the particular position are to be determined not as a matter of construction of the employment contract, but as a matter of fact: Qantas v Christie at [1] (Brennan CJ), [33]–[37] (Gaudron J), [86] (McHughHugh J). Assistant Commissioner Connelly said that the AFP’s medical standards were not exhaustive statements of the inherent requirements of the particular position and that his own opinion of what those requirements were was based on 32 years of policing experience. No serious attempt was made to undermine this opinion, and such attempts as were made were convincingly rebuffed.

165    In any event, counsel for Mr Shizas accepted that s 351(2)(b), like s 351(1), is directed at the “substantial and operative” reasons of the decision-maker. Whatever other factors may have played on his mind, it is clear that a substantial and operative concern of the Assistant Commissioner was that Mr Shizas faced a substantially greater risk of injuring his back than did other recruits. That concern does not appear to have been based on the prospect of overseas deployment or on the occasional need to wear a 20 kilogram vest. Rather, it was based on his fear, derived from his experience and his interpretation of Dr McBurnie’s report, that Mr Shizas could be injured in a physical altercation or fracas (including one staged for training purposes) which, he believed, would exacerbate his ankylosing spondylitis and potentially expose other recruits and members of the public to the risk of injury.

166    Mr Shizas’s third submission was that Assistant Commissioner Connelly did not consider Mr Shizas’s actual circumstances, but relied instead on a “stereotype” of ankylosing spondylitis, or “hypothetical or general projections as to what AS may entail in some cases, but not [his] case [in particular]”. Mr Goot contended that this was “the very thing that s 351(1) is designed to guard against”. He pointed to the Assistant Commissioner’s evidence that he believed, in July 2014, that Mr Shizas had a “weak back” that “could get worse over time”, and that Mr Shizas would face situations, such as wrestling a person and being placed in a headlock, that would place pressure on his back, and which could hurt him. He submitted that the fact that Assistant Commissioner Connelly did not contact Dr Bertouch for details of Mr Shizas’s condition was further evidence that he did not consider Mr Shizas’s actual circumstances.

167    I do not accept this submission either. The evidence does not support it. Assistant Commissioner Connelly said that his understanding of Mr Shizas’s disability was derived from Dr McBurnie’s report. I accept what he said. It is consistent with his evidence that Dr Bertouch’s letter left outstanding concerns in his mind and that for this reason he had asked Dr Batchelor to procure an independent medical opinion. Dr Batchelor’s advice to the Assistant Commissioner was that an occupational physician was the most appropriate person to provide such an opinion as occupational physicians “specialise in examining the impact of medical conditions on individuals’ work capacity and the effect of occupations on specific medical conditions”. Dr McBurnie is an occupational physician. In considering what to do about Mr Shizas’s application, the Assistant Commissioner was entitled to rely on her opinion, which was based on her own independent medical examination. The mere fact that he arranged for an independent examination and directed questions to the examiner about the risk to Mr Shizas tells against the notion that he acted on the basis of a preconception rather than Mr Shizas’s actual circumstances.

168    Mr Shizas’s fourth submission was that Assistant Commissioner Connelly misunderstood Dr McBurnie’s two reports.

169    Above at [52] I set out the conclusion of Dr McBurnie’s first report. It is convenient to do so again:

This is a difficult case as Mr Shizas is currently reported to be asymptomatic, physical examination is essentially normal and his level of exercise and activity generally is compatible with training requirements. At issue is the risk of injury and it is difficult to predict how the diagnosis of ankylosing spondylitis will affect his risk of injury given that the tasks required carry a degree of risk of injury independent of any underlying medical condition. His history would increase his risk but the degree of the increase in risk is unquantifiable.

(Emphasis added.)

170    A layperson reading this conclusion (particularly one who thought that ankylosing spondylitis meant a “weak back”) could easily understand that Mr Shizas, then and there, was at a greater risk of injuring his back when carrying out the requirements of operational policing than a person who did not have ankylosing spondylitis. The second report affirmed that the increase in risk was unquantifiable but made it clear that, at least in Dr McBurnie’s opinion, it was not trivial or low but substantial. Moreover, in that report Dr McBurnie also expressed the opinion that any injury is likely to be more serious for Mr Shizas than for someone without “an underlying musculoskeletal condition”.

171    Yet Dr McBurnie’s reports in fact suggest that the increased risk of injury would only arise in the event of a deterioration of his ankylosing spondylitis at some unknown and indeterminate time in the future. This is revealed in the body of her first report:

In response to [your] particular questions:

(a)    Whether Mr Shizas is physically able to perform the duties of an operational police officer listed below.

Mr Shizas presented at this assessment as physically fit and reported no symptoms. I note the duties required of operational policing and at this assessment Mr Shizas would be able to perform all of the duties noted. He would also be able to use and wear the equipment and has the physical capabilities noted in point 16.

The difficulty for Mr Shizas is that he has a chronic condition with a variable course. There may be a time in the future where Mr Shizas is restricted from doing some of the activities noted in point 14 and 16. Risk of future problems is unquantifiable.

(b)    Whether Mr Shizas would have any physical/imitations should he undertake an operational policing role.

Based on the assessment today there would be no physical limitations on an operational policing role at this point in time. As noted above if the condition were to progress he may require restrictions at some point in the future but the risk is unquantifiable. There may also be a limitation on his capacity to be deployed if medication was changed to a biological agent in the future.

(c)    Whether Mr Shizas is at an increased risk of injury in undertaking the duties of·an operational policing role due to his medical condition.

In theory a chronic inflammatory musculoskeletal condition would predispose to an increased risk of injury in any physical activities including duties of operational policing.

(d)    If the answer to (c) is in the affirmative, please provide your opinion on the risk of injury to Mr Shizas, including the risk of aggravation of his medical condition.

In Mr Shizas’ case the risk is unquantifiable.

(e)    Whether Mr Shizas would require ongoing medical supervision if he were to perform an operational policing role.

Mr Shizas should continue to see his rheumatologist. He should also have a periodic clinical review to assess symptoms and monitor disease progression. I would suggest that in the early stages he would require relatively close supervision with a six monthly review and then annual or two-yearly review depending on progress.

    ...

172    On a fair reading of this report, and with the reasonable assumption that Dr McBurnie’s understanding of ankylosing spondylitis (as a consultant occupational physician) is not fundamentally at odds with the understanding of the three consultant rheumatologists whose reports were tendered in the proceeding, it is apparent that the risk of injury to which she refers is one that would arise upon deterioration of Mr Shizas’s condition, which is something that would happen over timeframes of at least six months.

173    Assistant Commissioner Connelly, however, understood that this deterioration could occur suddenly, for example “in the middle of a fracas with a very aggressive person”. It is for this reason that he believed that, not only could Mr Shizas be injured in carrying out his duties, but also that his condition would put at risk his partner and any members of public he was attempting to protect.

174    It is therefore unnecessary to consider the Commissioner’s submission that it was relevant to have regard not only to Mr Shizas’s present state of health, but to his future health as well. Although Assistant Commissioner Connelly said that he understood that ankylosing spondylitis “deteriorates over time”, he did not say at any point that this is what led him to refuse to employ Mr Shizas. He did not raise it as a matter of concern in his letter to Mr Shizas or in his evidence. When he sent his letter on 10 July 2014 he believed that, as at that time, Mr Shizas was already substantially more likely to be injured in carrying out the physical aspects of his duties than a person without ankylosing spondylitis. He may have been wrong in this belief. Indeed, the evidence before the Court indicates that he probably was. But this is not a review of the merits of the decision and it is not a claim which falls for assessment under the Disability Discrimination Act. Mr Shizas must fail if the Commissioner satisfies the Court that he took the action he did because of the inherent requirements of the position even if the evidence establishes that Mr Shizas could in fact fulfil them.

175    Mr Shizas’s fifth submission was that it was not an inherent requirement of the particular position that the safety of Mr Shizas and those around him be “guaranteed”. While he accepted that “an ability to do the job safely is an inherent requirement”, Mr Goot contended that “[a]n employer is not required to ‘guarantee’ the safety of a potential employee and others”. In this respect he relied on the judgment of Raphael FM in Vickers v The Ambulance Service of NSW [2006] FMCA 1232.

176    Mr Vickers brought a claim under the Disability Discrimination Act. He was a registered nurse who had applied to become a trainee ambulance officer. He did not pass his medical clearance for the role because he had type one diabetes. The Ambulance Service was concerned that if he had a hypoglycaemic episode his safety and the safety of those he served, and served with, could be compromised.

177    Raphael FM referred to several parts of the judgments in X v Commonwealth, including the following passage from Gummow and Hayne JJ at [109] (with whom, Raphael FM noted, Gibbs CJ and Callinan J agreed):

[A]n employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment. ... Much would turn on the nature and size of the risks that are said to arise.

178    Raphael FM considered that (at [47]):

Properly read, X instructs a court to undertake a balancing act. It does not require that an employer guarantee the safety of the potential employee or others with whom he may come into contact. That approach would be far too exclusionary of persons with disabilities. Of course, the employer must have regard to the health and safety requirements that govern its undertaking.

179    In that case, Raphael FM observed that “[w]hilst there is no doubt that the very nature of insulin-dependent diabetes makes any of these [dangerous hypoglycaemic] events possible, it does not mean that they are necessarily likely to occur”. His Honour found that Mr Vickers’ diabetes was well-controlled and that he was able to ensure his blood glucose levels would not drop to a level where symptoms would occur (see at [50]).

180    But this case was not brought under the Disability Discrimination Act. As I have already observed, the question here is not whether Mr Shizas did or did not satisfy the inherent requirements of the particular position but whether the decision to refuse to employ him was made for that reason. It was Assistant Commissioner Connelly’s opinion, based on Dr McBurnie’s report, that Mr Shizas was at a substantially greater risk of injury in carrying out his duties than he would have been had he not had ankylosing spondylitis and that the consequences flowing from this would be grave. This opinion underpinned his decision.

181    The real question that arises is whether s 351(2)(b) can be satisfied by the Assistant Commissioner’s honest belief that Mr Shizas did not meet the inherent requirements of the particular position concerned, even if that belief may have been mistaken.

182    Ms Eastman submitted that the question was not “whether the decision was unreasonable in the Wednesbury sense, whether it was correct, whether it could have been made in a different way, whether it was fair, whether ... it’s all those”, so long as the person was “genuine ... in their decision-making”. I interpolate that the reference to “unreasonable[ness] in the Wednesbury sense” was presumably to the standard, sometimes applied in judicial review of administrative decision-making, emanating from the dictum of Lord Greene MR in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1948] 1 KB 223 at 320.

183    Mr Goot did not take issue with this submission — at least not overtly. Rather, he argued that the Assistant Commissioner did not “genuinely” refuse to hire Mr Shizas because of the inherent requirements of the particular position but because he relied on a stereotype instead of having regard to Mr Shizas’s actual disability. As I have said, however, the evidence shows that Assistant Commissioner Connelly did in fact consider Mr Shizas’s suitability for the position. It may well be that he misunderstood Dr McBurnie’s opinion because of an erroneous preconception that ankylosing spondylitis meant a “weak back”. But that is not the same as saying that he refused to employ Mr Shizas because of that preconception. In truth, this was a submission about the quality or merits of the Assistant Commissioner’s decision, which is not an issue in the proceeding.

184    The inquiry posed by s 351(2)(b) is whether the adverse action was taken “because of” the inherent requirements of the particular position. It is well established that the words “because of”, in Pt 3-1 of the FW Act, invite attention to the actual reasons of the decision-maker. There is no warrant for departing from that approach in relation to s 351(2)(b). While a decision made predominantly because of prejudice or ignorance may well not be a decision made because of the inherent requirements of the particular position, I do not accept that that is the position in this case.

185    In cross-examination, Assistant Commissioner Connelly stressed:

What I’m saying to you is that this is about whether I can deploy Mr Shizas safely not to hurt himself, not to have his partner hurt and so he can protect the public. That’s all it is.

186    Ultimately, nothing that was put to the Assistant Commissioner undermined that evidence.

187    Accordingly, I find that, while the Commissioner took adverse action against Mr Shizas in July 2014 by refusing to employ him, and that he did so because of Mr Shizas’s ankylosing spondylitis, the action was also taken because of the inherent requirements of the particular position concerned. Consequently, s 351(1) does not apply to the second decision.

Summary

188    In summary, I find that:

(1)    at the time both decisions were made, the Commissioner was an employer within the meaning of s 351(1) of the FW Act and Mr Shizas a prospective employee;

(2)    by refusing to employ Mr Shizas on both occasions the Commissioner took adverse action against him because he had a disability, namely, ankylosing spondylitis, contrary to s 351(1); but

(3)    that the second decision was also made because of the inherent requirements of the position for which he had applied, being the particular position concerned for the purposes of s 351(2)(b), and, accordingly on this occasion, the Commissioner did not contravene s 351(1).

Relief

189    Section 351(1) is a civil remedy provision: FW Act s 539(1), (2), item 11. If the Court is satisfied that there has been a contravention of such a provision, it has the power to make any order it considers appropriate: FW Act, s 545(1). That includes the power to order the payment of a civil penalty and/or compensation. Mr Shizas pursued neither of these remedies.

Declarations

190    The first form of relief Mr Shizas sought is declaratory relief.

191    The Court has a wide discretion to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). There was no dispute that, if the Court were to find that the Commissioner had contravened s 351(1), a declaration could be made and the Commissioner did not suggest that it would be inappropriate to do so. I consider that it would be appropriate to make a declaration reflecting the Court’s finding that the Commissioner contravened s 351(1) in refusing to employ Mr Shizas in March 2013. It would serve to record the Court’s disapproval of the contravening conduct, vindicate Mr Shizas’s claim, and act as a deterrent to others: cf. Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730; [2007] ATPR ¶42-140 at [6], and the cases referred to there.

192    There was, however, a dispute as to how the declaration should be couched.

193    Mr Shizas sought a declaration that the Commissioner contravened s 351 of the FW Act by refusing to employ him because of his physical disability.

194    The Commissioner submitted that it was necessary to descend into greater detail, to specify both the particular instance of adverse action (in this case, the March 2013 refusal but not the July 2014 refusal) and the particular position from which Mr Shizas was refused employment.

195    This submission should be accepted. In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89]–[90] Gummow, Hayne and Heydon JJ were critical of declarations which gave no content to the statutory language and did not indicate “the gist” of the findings. Assuming that a declaration in general terms is warranted in some cases, in the circumstances of this case a declaration in the terms Mr Shizas sought would be apt to mislead. The declaration should be confined to the March 2013 refusal and should refer to the particular position from which Mr Shizas was refused employment.

Mandatory injunctions

196    Mr Shizas sought mandatory injunctions in the following terms:

(b)    an order that the Respondent appoint the Applicant to a position as FAPO on the terms and conditions set out in the Respondent’s letter to the Applicant dated 19 March 2013 save and except as to the precondition that the Applicant obtain a medical clearance;

(c)    in the alternative to (b), an order that the Respondent employ the Applicant on the terms and conditions set out in the Respondent’s letter to the Applicant dated 19 March 2013 on the next occasion of the Federal Police Development Program or its equivalent; and

(d)    [i]n the alternative to (c), an order that the Respondent admit the Applicant to the next available Federal Police Development Program or its equivalent conditionally upon completing any further “gateways” not yet completed at 22 March 2013, save as to the “medical and psychological gateway” ...

197    None of these orders is appropriate.

198    It would be impossible for the Commissioner to comply with order (b). The 19 March letter spoke of entry to the Federal Police Development Program beginning on 13 May 2013 and continuing for a period of approximately 26 weeks. That time has long since passed.

199    The Commissioner submitted that order (c) should not be made either, because it would “require[] the Court to exercise a statutory function conferred on the Respondent with respect to ‘appointing’ an officer”. In this regard he emphasised that the power is vested in him, by s 24 of the AFP Act, to engage a person as an AFP employee. The Commissioner referred to no authority in support of this submission, presumably because none could be found. Order (c) would not require the Court to stand in the shoes of the Commissioner and exercise his power under s 24 of the AFP Act. The Court would be exercising the power vested in it by s 545 of the FW Act. The Commissioner did not submit that s 545 should be construed so as not to allow an order for the employment of a person, in order to avoid inconsistency between the two provisions (cf. Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1).

200    There are other difficulties, however, with order (c). One is that an order “that the Respondent employ the Applicant on the terms and conditions set out in the ... letter ... dated 19 March 2013” makes no sense, because that letter did not offer Mr Shizas employment on particular terms and conditions. Rather, it offered Mr Shizas employment on particular terms, provided that particular conditions were met. On any fair reading of the letter, Mr Shizas’s successful completion of the drug testing, medical, and security gateways was stipulated as a condition precedent (not subsequent) to the formation of his contract.

201    Ms Crump’s evidence was that Mr Shizas would not have completed the drug testing gateway. The email notifying Mr Shizas that he passed the online aptitude test in May 2012 suggests that those results expired in May 2014. It has also been more than four years now since Mr Shizas completed the Physical Competency Assessment and more than three and a half since Dr Oey examined him for his medical clearance. While the rheumatologists agreed that at the time of their examinations Mr Shizas was able to perform what the Commissioner said were the inherent requirements of the position, their opinions must be limited both by the boundaries of their professional expertise and by the context in which their opinions were sought. I do not take the doctors to be agreeing, for example, that Mr Shizas currently satisfies the hearing and vision requirements for the role. Nor do I understand them to have carried out the neurological, cardiovascular, respiratory, lymphatic, oral, dental, or genito-urinary examinations that Dr Oey carried out.

202    Proposed order (d) suffers from the same difficulty. Even if it be assumed, as appears to be the case, that Mr Shizas would have received medical clearance in 2013 were it not for a misunderstanding about the effect of his ankylosing spondylitis, given the effluxion of time since his medical clearance it would not be appropriate to order the Commissioner to treat him as medically cleared today.

Prohibitory injunctions

203    Mr Shizas sought the following prohibitory injunctions:

(e)    an order restraining the Respondent from continuing to treat AS [as] an exclusion under the Respondent’s medical standards so as to exclude the applicant from being medically cleared to undergo recruit training with the Respondent; and

(f)    in the alternative to (e), an order restraining the Respondent from denying medical clearance to the Applicant on the grounds of his AS, or any potential future deterioration of his AS, during the final component of the recruitment process, currently known as the Recruitment Application Validation Centre.

204    The Commissioner objected to the form of order on the basis that it seeks to “restrain the AFP beyond the circumstances of the Applicant’s case” and “beyond the present parties”. This submission must be based on a misconstruction of the proposed order. It ignores the limiting effect of the words “so as to exclude the applicant from being medically cleared ...” (emphasis added). In any case, it is directed to the Commissioner, who is a party, and not to anyone else.

205    The Commissioner also complained that Mr Shizas did not identify the source of the Court’s power to make the order. The source of power is s 545(2). The power is broad, although it must be exercised in accordance with the purposes for which it was conferred: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [176].

206    The purpose of the power can be inferred from the circumstances in which the power is enlivened (the contravention, or proposed contravention, of a civil remedy provision) and the particular, non-exhaustive examples of orders that the Court may make pursuant to it, which are provided in subs (2). These are:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person.

207    These examples demonstrate that the purpose of the section is to make at least two kinds of order.

208    The first is an order designed to prevent a contravention. Orders of this kind include injunctions achieving that effect (s 545(2)(a)). As a matter of logic, an occasion for making such orders will be where, in the words of s 545(1), “a person ... proposes to contravene ... a civil remedy provision”.

209    The other kind of order is that which can be made where a civil remedy provision has already been contravened. In an appropriate case, the Court may grant an injunction to “stop” an ongoing contravention (s 545(2)(a)) and, in any case, an injunction to remedy its effects (s 545(2)(a)). The Court may also make orders compensating a person for the loss suffered because of the contravention (s 545(2)(b)) or an order reinstating the person (s 545(2)(c)). In each case, the focus is on the remediation of the consequences of the contravention; in a loose sense, the restoration of those affected by a contravention to the positions they would have occupied but for its occurrence.

210    An injunction may also be granted to prevent further contraventions of the same or a similar kind. Such an order may be made even in the absence of a finding that the respondent is likely to engage in such conduct in the immediate or distant future: United Group Resources Pty Ltd v Calabro (No 7) (2012) 203 FCR 247 at [48] (McKerracher J); Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [107]–[109] (Mansfield J). The injunction may have the benefit of deterring the respondent from engaging in further contravening conduct: Cartledge at [109].

211    It is apparent, therefore, that orders may be made under s 545 where they have a nexus with the contravention and are restorative in purpose. They may also be made for the purpose of deterrence, both specific and general: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) at [178]–[189].

212    Each of the two alternatives proposed by Mr Shizas, however, is problematic.

213    In relation to the first, the evidence is that, despite what happened in April 2013 (see above at [42]), in January 2014 the medical standards were revised so as to make it clear that certain medical conditions, including ankylosing spondylitis, would be considered on a case by case basis. The revised document includes the following statement:

There are medical conditions that may result in a person not being able to meet the inherent requirements of an operational policing role. However, advice on whether an applicant will meet the inherent requirements of an operational policing role cannot be provided until the applicant has undergone an individual medical assessment, specialist reports are provided (where necessary) and all the information is reviewed.

214    As to the second, I accept the Commissioner’s submission that it is vague and uncertain in its operation because it concerns a possible future event — another application by Mr Shizas.

215    I am not disposed to attempt to recast the proposed orders myself. Mr Shizas has had a fair opportunity to craft an appropriate order.

216    If Mr Shizas chooses to re-apply for employment with the AFP, no doubt his suitability for employment having regard to the inherent requirements of the position will again arise for consideration. This time, however, the consideration will be assisted by the evidence that emerged in this proceeding and should not be affected by misconceptions concerning the nature of ankylosing spondylitis in general or Mr Shizas’s condition in particular.

Conclusion

217    It follows that, beyond declaring the first decision to have been made in contravention of s 351, no further relief should be granted and the application should otherwise be dismissed.

218    Mr Shizas reserved his position on the question of costs. Having regard to the constraints imposed by s 570 of the FW Act, my provisional position is that there should be no order as to costs. If either party wishes to seek a contrary order, he should make application within 14 days, accompanied by submissions not exceeding three pages and any supporting evidence. The other party will have 14 days to respond. Any such application will be determined on the papers.

Associate:

Dated:    6 February 2017