David Loscialpo v New South Wales Police Service

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

DENNIS MAHONEY QC

No. H 98/107

Number of pages - 15

DATE OF HEARING:       24-26 March 1999

DATE OF DECISION:       2 September 1999

PLACE:        SYDNEY

#DATE 02:09:1999

Appearances

The Complainant appeared in person.

T. Anderson of Counsel instructed by New South Wales PoliceService for the
Respondent.

Order

Complaint be dismissed.

DENNIS MAHONEY QC

1.       INTRODUCTION

Mr Loscialpo applied to enter the New South Wales Police Service ("the
Service"). He is, to an extent, colour blind. For that reason his application
was refused. He claims that the refusal constituted discrimination contrary to
the provisions of the Disability Discrimination Act 1992 (Cth), ("the
DDA"). He has therefore brought proceedings against the Service under the
DDA.

Conciliation was found not to be appropriate or successful. The matter has
been referred to me, as a Hearing Commissioner under the DDA, for hearing.

The complainant conducted his own case. During the hearing, with my consent,
his friend Mr Besra assisted him in conducting his case. Counsel, Ms Anderson,
represented the Service.

The legislation does not require that the precise issues to be dealt with in
such proceedings be defined. In many cases, counsel representing the parties
are able to agree upon the issues. In this case it has not been possible.

The Complainant has been diligent in the preparation and the presentation of
his own case. But he has claimed little knowledge of the technical
requirements of the law in relation to the matters to be determined and
accordingly, he was able only imperfectly to understand what was in issue
before me and what was relevant to it. In saying this I do not critisise the
complainant, who has conducted his case with care and courtesy. But, in the
circumstances, it has not been possible to obtain agreement between the parties
as to what are the issues to be determined.

I shall therefore approach the matter according to what, in my opinion, are the
essential issues to be determined. I shall formulate those issues in the light
of the material that has been presented and the manner in which the proceeding
had been conducted.

The matters which I must decide are:

1.       Did the Complainant have a "disability" within the
legislation and what was the order of that disability?

2.       Did the Service refuse his application because of
that disability?

3.       Did that refusal constitute prima facie
discrimination within the DDA?

4.       If it did, did the Service have, in the relevant
sense, a defence for what it did within s.15(4) of the DDA?

5.       What orders should be made?

In considering these matters, I shall address the questions which, under the
legislation, I am required to deal with or decide.

2.       THE FACTUAL CONTEXT

The Complainant was born on 1 July 1967. The details of his education are
before me. He obtained a degree in science at the University of Western
Sydney. However he has not pursued a career based upon that degree. He has
followed a number of occupations ranging from labouring to data processing. He
has said that he wants, and at relevant times wanted, to be a police officer.

On 3 September 1996 the complainant applied to enter the Service. He had a
selection interview but his application was subsequently refused: "He was
unsuccessful at the interview". The refusal was apparently not based on the
complainant's colour blindness. In evidence the complainant suggested that his
refusal might not have been bona fide.

On 20 April 1997 he again applied to enter the Service. That is the
application now in question. The procedure to be followed involved that he
supply, inter alia, information as to his medical condition. It appears an
optometrist consulted by him recommended that he have a test of his eyesight,
in relation to colour blindness, at the University of New South Wales. This, I
think, was because of the findings that that optometrist had made.

On 11 June 1997, the complainant was tested for colour blindness at the
University of New South Wales and Associate Professor Dain made an assessment
of his condition. A copy of this assessment was faxed to the Service. The
findings are sufficiently set forth in a letter dated 11 June 1997 to Dr
Crowle, the Senior Police Medical Officer. In due course the Service wrote to
the complainant by letters dated 22 October 1997 and 10 November 1997. They
indicated, inter alia, that his application was refused.

On 21 November 1997 the complainant commenced proceedings under the
legislation.

The complaint was referred for conciliation. On 15 August 1998, Acting
Disability Discrimination Commissioner Chris Sidoti certified that the matter
was "not amenable to conciliation". It was then referred to the Commission for
a hearing and the matter came before me.

During the hearing a large amount of material was placed before me. One of the
exhibits ("the Referral Report") contained some 577 pages. Witnesses were
called and oral evidence was given on behalf of both the complainant and the
respondent. The cross-examination of the witnesses by the complainant extended
over a long period.

It is not practicable, or in my opinion necessary, for me to detail all of the
evidence which has been given, or to make findings in relation to all of the
various matters which have been in dispute during the hearing. My decision not
to deal in detail with a number of the matters raised by the complainant in
cross examination and otherwise must not, of course, be seen as discourtesy to
the complainant, or to indicate that I have not taken into account what he has
said in relation to them. However, I shall confine myself in these reasons to
the findings and reasons which, under the legislation, I am required to make
and give, and to what, in my opinion, are the matters relevant to the complaint
as it has been made and pursued.

3.       DID THE COMPLAINANT HAVE A "DISABILITY" WITHIN
THE LEGALISATION?

It is not, I think, in contest that the complainant suffers from colour
blindness and that whatever the extent of it, that colour blindness constitutes
a "disability" within the definition in s.4(1) of the DDA. The real matter in
dispute is the extent of that disability and the significance of it for the
purposes of the legislation and the present complaint. To these matters I
shall refer subsequently.

4.       DID THE RESPONDENT REFUSE THE COMPLAINANT'S
APPLICATION BECAUSE OF THAT DISABILITY?

This has been an issue in this proceeding. The complainant has referred to the
circumstance in which, as he claims, his first application was refused and to
the circumstances in which the present application was dealt with. He has
alleged that there was undue delay. He has, to an extent, suggested that (as
he described it) "racism" influenced, or may have influenced, the refusal of
one or both of his applications.

The complainant also made reference to, inter alia, statements he made at
interview in response to questions about the Wood Royal Commission into Police
Corruption. He suggested these statements and matters that he sees as arising
from the Wood Royal Commission into Police Corruption and other such matters
may also have been the basis for the refusal of his application.

It is proper to record that although these matters were referred to during the
proceedings and in the submissions, they do not appear to have been the subject
of substantial evidence.

However that be, in his submissions, the complainant has said:

"I believe the reason that the Police Service rejected me due to Colour Vision
was, in their eyes, a legal avenue to dismiss somebody who they did not want to
become a Police Officer or to cover up inappropriate delays and mismanagement
on their part. This supports the fact that Inspector Choat quickly and simply
states that red defective individuals are not permissible".

The Service has, in it's submission and in evidence, consistently maintained
that the reason for the refusal of the complainant's application was because he
was colour blind and therefore unable to perform the duties expected of a
police officer. I note that standard publications provided to prospective
applicants state clearly that normal colour vision is required for employment
in the Service.

I am satisfied that the reason why the complainant's application was refused
was his colour blindness. This was a matter properly to be taken into account
in considering the application. I am not satisfied that the refusal was based
upon other or impermissible considerations. To the extent that it may be
relevant, I am of the opinion that the evidence clearly establishes that colour
blindness was the reason why the application was refused.

One further matter should be referred to. The Service has pointed out that
even if colour blindness had not been a reason sufficient to warrant the
refusal, it would not follow that the complainant's application would have been
granted. The respondent has contended, in my opinion correctly, that in
determining whether an application to enter the Service is to be granted, the
Service may, in the course of interview and otherwise, take into account other
matters affecting the fitness of the applicant, and the desirability of his
entering the service. The Service therefore submits that, even if the
complainant succeeded on "the colour blindness issue", no order requiring the
Service to employ the complainant should be made at this stage because, for
these reasons, his application might well have been refused.

5.       DID THE REFUSAL CONSTITUTE "DISCRIMINATION"
WITHIN THE LEGISLATION?

It is, I think, not seriously in contest that a refusal of the application
because of the complainant's colour blind condition prima face constitutes
discrimination within the legislation.

The basic concept of discrimination adopted by the legislation is that
contained in s.5(1) of the DDA. There is discrimination on the ground of a
disability:

"if, because of the aggrieved person's disability, the discriminator treats or
proposes to treat the aggrieved person less favourably than, in circumstances
that are the same or are not materially different, the discriminator treats or
would treat a person without the disability".

This is the concept that is, in general, applicable in the present case.

I note that the prima facie affect of this provision may be qualified by
relevant exceptions or defences contained in the DDA. The application of
section 15(4) will be discussed below.

The literal operation of such a concept of discrimination would, if standing
alone, produce curious results. For example, there would be discrimination if
a blind person or a person with one leg or no hands were refused employment as
an ordinary constable on general duties in the police service. The prima facie
affect of a provision based on the concept in s.5 (1) is, of course, qualified
by, as they are conventionally described, the "defences" provided by the
legislation: see eg, s.11 and s.15. Whether the width of the concept of
discrimination adopted in the legislation and the curious results which may be
produced by it, standing alone, warrant giving to the defences a wider, rather
than a narrower interpretation, is a matter that does not arise for decision in
the present case.

6.       IS A DEFENCE AVAILABLE UNDER S.15?

The concept of discrimination contained primarily in s.5 is employed in the
provisions of the legislation dealing with employment. Section 15(1)
relevantly declares it to be unlawful for an employer to:

"discriminate against a person on the ground of the other person's
disability...

(b) in determining who should be offered employment;"

Section 15(4) provides:

"Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an
employer against a person on the ground of the person's disability, if taking
into account the person's past training, qualifications and experience relevant
to the particular employment and, if the person is already employed by the
employer, the person's performance as an employee, and all other relevant
factors that it is reasonable to take into account, the person because of his
or her disability:

(a)       would be unable to carry out the inherent
requirements of the particular employment; or ..."

To establish such a defence in the present context, it is necessary for the
respondent, in effect, to establish:

- what the complainant is "unable to carry out"; and

-       that the complainant's inability to carry out those
things results in his being unable to carry out the "inherent requirements of
the particular employment".

It is these matters which have been mainly in issue in the present
proceeding.

I come first to consider what the complainant is "unable to carry out". This
has been dealt with, in the main, by the two professional witnesses for the
respondent, Professor Cole and Associate Professor Dain, and by the complainant
in his oral and written evidence.

Before dealing with this evidence it is proper for me to indicate my conclusion
as to the acceptability of the evidence of Professor Cole and Associate
Professor Dain.

The complainant, in the course of his conduct of the case, has put in contest
the credibility, capacity and conclusions of each of these witnesses. In
saying this I do not mean to indicate that the complainant has, at all times
during the hearing, maintained a consistent attack upon them in respect of each
of these matters. But what has been said and suggested makes it relevant that
I indicate my views as to these two witnesses.

Professor Cole holds a chair within the University of Melbourne. His area of
expertise extends to the matters here in question. He concluded that, to the
extent and in the sense to which he referred at length in his written and oral
evidence, the complainant is "moderately protanomalous". This, he explained,
means that the complainant suffers from a significant form of colour blindness.
Professor Cole was cross-examined at length. He was an impressive witness and
I accept the thrust of his evidence. I am conscious of the experience of
lawyers who have been involved in trial work, that the meaning conveyed by what
a witness has said to one who has seen and heard him give evidence, is
sometimes different from the meaning which would or may be drawn from that
evidence by a person who merely has read the transcript of what has been said.
Professor Cole gave his evidence fairly. He gave careful consideration to the
matters put to him by the complainant in cross-examination and to the material
that he was asked to consider. In this case, I record that what I saw of
Professor Cole in giving evidence has assisted me in concluding that I should
accept, in the respects here relevant, the correctness of what he has said.

Professor Cole's qualifications are substantial, and in my opinion, have not
been put substantially in issue.

In his written evidence, (see in particular pages 1, 2, 3 and 5) Professor Cole
dealt with the extent of the severity of loss of colour discrimination by the
complainant, his risk of involvement in a road accident, his ability
effectively to search as a police officer may have to do and other matters of
relevance. In his oral evidence, in chief and in cross-examination, he
indicated that the degree and/or effect of the complainant's condition was
rather more severe then he had at first thought. The condition, though
"moderate", was, he concluded, somewhat more serious than he had at first
concluded.

His evidence suggested that the complainant would:

-       on occasions, misname colour;

-       be subject to a higher risk of accident by reason
of a failure to see red lights sufficiently quickly or at the appropriate
time;

-       though able to discriminate colour, be more likely
to make errors in colour naming and colour differentiation as between colours
of subtle difference;

-       have a reduced capacity to carry out the search
functions required of police officers;

-       make (as they have been described) non trivial
errors in police work;

-       have a reduced visual range of recognition of
orange traffic lights;

-       be at risk of making errors in the recognition of
signal colour.

This condition is effectively permanent. (I have summarised these matters with
the assistance of the submissions by Ms Anderson and need not repeat the
references made therein to the particular parts of the evidence in which they
are dealt with).

Professor Cole was asked for his opinion as to whether a person having such a
condition of colour blindness should be employed in the Service in the relevant
capacity here in question. He expressed the opinion that such a person should
not be so employed. In expressing this opinion he indicated the basis upon
which he felt able to speak as to the capacities required of a relevant police
officer. I accept that, by reason of his qualifications and experience,
Professor Cole is qualified to give such an opinion and I accept the opinion
that he has expressed.

Associate Professor Dain initially tested the complainant for colour blindness.
His views were expressed, inter alia, in his letter of 11 August 1997. It is
not necessary for me to detail what he there said. It is proper to record that
the complainant conceded that, if he were again tested, the results of the
testing would be effectively the same. Professor Dain's oral evidence
confirmed the general thrust of his testing and of his assessment of the
complainant's condition.

Professor Dain did not claim to know the requirements of the Service in the
present regard and he was not able to express an opinion as to whether, given
the condition he found, the complainant was an appropriate person to be a
member of the Service.

It is not necessary for me to note a detailed comparison of the evidence of
Professor Cole and Associate Professor Dain. There were some variations
between them. In my opinion such variations as existed did not represent a
difference between them as to the complainant's essential condition or as to
the main relevant effects produced by such condition. In my opinion the
evidence of Associate Professor Dain confirms the views expressed by Professor
Cole, to which I have referred, as to the effect of the relevant condition upon
the functioning of the complainant.

In cross-examination of these witnesses and of Inspector Choat, and in his own
evidence, the complainant attacked the effect of this evidence in a number of
respects. It is not necessary for me to detail and examine each of them here.
In the end, I conclude that the evidence put by the complainant does not
significantly reduce the effect of the evidence of these witnesses upon the
matters here relevant. The complainant had clearly researched in considerable
depth the methods to be used in testing for the relevant condition, the nature
of the condition, the effects apt to be produced by it and the relevance of
them to what he would have been required to do as a police officer. There was,
for example, considerable examination of the Ishihara test to which the two
expert witnesses referred, and to (as it was described) the Lantern test. It
was suggested, inter alia, that as the complainant had passed the Lantern test,
it should be accepted that at least some of the difficulties to which the
Professors referred did not exist. I accept the views of Professor Cole as to
the Ishihara test and its use in the present case.

In the end, I conclude that the evidence produced by the complainant does not
significantly reduce the effect of the evidence of these witnesses upon the
matters here relevant. I am not convinced that other tests were necessary in
order to determine the extent of the complainant's colour blindness or, to the
extent that he would have passed, or did pass them, that they would have
warranted conclusions other than those to which I have referred.

The complainant also suggested, by reference to other published studies and
material, that the effect of his condition may be somewhat different from that
indicated by Professor Cole and Associate Professor Dain. He suggested that the
opinion of the experts contained in this material was inconsistent with the
views of Professor Cole and Associate Professor Dain and that accordingly their
views as to the effects produced by his colour blindness should not be
accepted.

In support of this contention, the complainant placed a substantial amount of
published material before the Commission. I have considered the material and
what has been said of it by the complainant and by the witnesses. I have
considered in particular what Professor Cole said as to it. In the end, my
conclusion is that the appropriate tests were applied to determine the
complainant's condition, that the effects to which Professor Cole and Associate
Professor Dain said would be apt to result from that condition were correct,
and that, because of the difficulties referred to, there was or would be apt to
be, a deficiency of performance on the part of the complainant such as I have
referred to.

The complainant has emphasised, in my opinion correctly, that the present
legislation requires that, in deciding whether there has been discrimination, a
judgement must be made of the individual disability and incapacity of the
complainant and, that this judgement is to be made by reference not to classes
or categories of persons or conditions, but by reference to the actual
disabilities and capacities of the individual complainant. There is to be no
stereotyping. In a case such as the present, I must consider the actual
disabilities and incapacities of the complainant and determine the extent to
which they affect what he can do.

I am satisfied that the complainant is moderately protanomalous and that this
condition will affect him in respect of the matters to which I have adverted to
such a degree that, as Professor Cole indicated, he should not be employed in
the Police Service as he sought to be. I am satisfied that the question of the
degree of the complainant's disability and of the effects of it were matters
which were present to the minds of the witnesses in the course of their giving
the written and oral evidence which they gave.

I now turn to consider whether the effect of the complainant's colour
blindness, as outlined above, is such as to indicate that the complainant is
unable to carry out the "inherent requirements of the particular employment".

The proceeding has been conducted upon the basis that the complainant was not
seeking a special category of employment within the Service. That has not been
suggested. The position he sought, and which is in question, was one in which
he would have been required to carry out, in the ordinary way, the general
duties of a police officer of the relevant rank and seniority. As was
submitted by Ms Anderson, the complainant envisaged that he would undertake
general duties and expressed a desire to do so.

Reference was made in argument to the meaning of the "inherent requirements".
There is, however, no substantial difference between the parties as to the
meaning of the phrase. Their difference is as to the application of it to the
present case. Therefore, while I note, for example, the consideration of the
provision by the Full Federal Court in the Commonwealth of Australia v The
Human Rights and Equal Opportunity Commission and "X", (1998) 152 ALR 182,
it is not necessary for me to discuss in detail the consideration which has
been given to the phrase in other proceedings.

In its submissions and in evidence, the Service suggested that a police officer
is required to undertake a range of core tasks. Amongst other things, these
include: the investigation of crime scenes; the search for and identification
of suspects; driving police vehicles (sometimes at speed and in dangerous or
difficult situations); search and rescue; and, the provision of evidence in
court (including identification evidence).

Given the nature of the work carried out by the Service, I am satisfied that
these operations, amongst others, are at the core of employment as a Police
Officer. Such tasks flow directly from the duties and functions carried out by
the Service. They are not mere operational requirements imposed by it and they
are not tasks imposed by other considerations such as efficiency or economy.

I note also that the Service operates within a judicial system and that as a
result, it is subject to certain requirements that are not capable of
modification by it alone. Police Officers are required, for example, to provide
evidence before courts of law in which the identification of the defendant,
his/her clothing and surroundings may need to be described with an appropriate
degree of certainty before a conviction can be obtained.

As indicated above, Professor Cole and Associate Professor Dain have indicated
that, as a result of the complainant's condition, the complainant may:

-       on occasions, misname colour;

-       though able to discriminate colour, be more likely
to make errors in colour naming and colour differentiation as between colours
of subtle difference;

-       have a reduced capacity to carry out the search
functions required of police officers;

-       have a reduced visual range of recognition of
orange traffic lights;

-       be subject to a higher risk of accident by reason
of a failure to see red lights sufficiently quickly or at the appropriate time;
and

-       make (as they have been described) non trivial
errors in police work.

I am satisfied that, as a result of the complainant's disability, he is unable
to carry out the inherent requirements of employment as a police officer as
here envisaged. The capacity to do these things, and in particular, to
identify accurately and describe persons and things, to recognise colour and
distinguish between the different colours and the capacity to drive safely at
appropriate speeds and to recognise, for example, traffic lights in doing so,
are matters within the scope of s.15(4)(a). I have given careful consideration
to the evidence of Professor Cole and Inspector Chaot in this regard. That
evidence supports the conclusion to which I have come.

In my opinion therefore, the defence relied on by the respondent has been made
out.

7.       WHAT (IF ANY) ORDER SHOULD BE MADE?

Having regard to my conclusions I am of the opinion that the complaint should
be dismissed. In the circumstances, I think that no other determination should
be made.

Before parting with this proceeding it is proper that I refer to one general
matter which arose for consideration during the present proceedings. This
relates to the informality of the proceeding and the effect of this upon the
evidence to be tendered and the use to be made of it.

In a proceeding in a conventional court, procedures ordinarily exist for
defining with precision the issues in contest between the parties. In general,
the evidence to be tendered will be that which is probative of facts relevant
to the particular issues in dispute, and not otherwise excluded by particular
rules. In this way, the evidence before the tribunal can be confined to that
which will be of assistance to it, and rulings can be readily made as to what
evidence should be admitted.

In a proceeding before a Commissioner under the present legislation, issues are
not defined by any prescribed or standard procedure. It is no doubt expected
that the parties and the Commissioner will endeavour to reduce the contentions
of the parties to a form analogous to issues. If this is done, the evidence
proper to be tendered and to be considered may more readily be identified.
However, in a proceeding under the present Act, particularly where one of the
parties is not represented, it may not be possible to do this. The result apt
to flow from this is that a deal of time is spent in tendering, ruling upon,
and dealing with evidence of little or no ultimate relevance to what must be
determined. The difficulties of dealing with these matters are, of course,
increased by the fact that under the legislation informality is mandated and
the rules of evidence do not apply.

It is not appropriate for me in this proceeding to attempt to detail rules or
procedures by which to enable the evidence tendered to be limited to evidence
which will be of assistance and so save the time of the parties and avoid the
considerable expense which may be involved. However, this is a matter to which
attention may usefully be given.

I do not mean by this that, in the present case, the unrepresented complainant
acted in a way that requires comment: on the contrary. But I believe it is
proper to indicate that time and expense may be saved if attention is given to
the development of proper procedural rules and guidelines in this regard.

The decision I make is that the complaint be dismissed.