How old can you be to fly an army helicopter?

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How old can you be to fly an army helicopter?

Unless an age-based exclusion directly relates to the inherent requirements of a job, it will be considered discriminatory.

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Unless an age-based exclusion directly relates to the inherent requirements of a job, it will be considered discriminatory. A Full Court of the Federal Court has confirmed a Human Rights and Equal Opportunity Commission (HREOC) finding that an Australian Defence Force (ADF) prerequisite, that potential recruits be aged between 19 and 28 years of age, was not based upon the inherent requirements of the job as a military pilot. (Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 1524 (4 November 1999)).

Background

On 22 April 1993, the applicant who was 37 years of age, attended an Army recruitment unit inquiring about joining the Army as a helicopter pilot. One of the prerequisites was that potential recruits be aged between 19 and 28 years of age, however, the applicant was informed that in certain cases the 19 - 28 Rule could be waived. In May 1993, the applicant was advised that no waiver of that requirement would be offered, the applicant subsequently made a formal complaint to HREOC. The matter was not resolved at conciliation.

HREOC found that the ADF’s refusal to consider the applicant for entry to a Specialist Service Officer Pilot Scheme on the ground that he was not aged between 19 and 28 years of age, constituted discrimination. It was recommended that the Commonwealth pay $5000 in compensation for the loss suffered by the applicant as a result of not having been considered for the Pilot Scheme. The matter then proceeded to the Federal Court, where Wilcox J dismissed an application by the Commonwealth for a judicial review of the HREOC finding. These proceedings represented the appeal by the Commonwealth against Wilcox J’s decision.

Submissions

 It was undisputed by the parties that the ADF’s requirement that entrants to the Pilot Scheme be aged between 19 and 28 years of age at the date of appointment amounted to "a distinction, exclusion or preference on the ground of age". The issue of contention was whether the age-based exclusion was in respect of the job based on the inherent requirements of a military pilot and therefore not discriminatory.

According to the ADF, military flying requires a high level of physical and medical fitness, particularly in respect of visual acuity and hearing standards, instinctive reactions and resilience to the rigours involved.

Through medical data and experience, the ADF claimed that it could be established that there existed a direct correlation between the age of pilots and their ability to safely perform in a combat-flying environment. Medical data revealed that persons in excess of 35 years of age exhibit a marked deterioration in reaction time and the capacity to withstand and recover from the stresses involved in military flying. In like manner medical data establishes that a high percentage of persons in the 35 year plus age bracket develop one or more medical conditions which disqualify them or restrict their capacity to maintain a medical flying category suitable to military aviation.

HREOC and the applicant submitted that the 19 – 28 Rule was not based on the inherent requirements of the job of a military line pilot within the legislative definition of "discrimination", the Rule was accordingly discriminatory. It was held that whilst factors such mental and physical fitness could be considered as inherent requirements, they were requirements that were not necessarily based upon age.

Leading judgement of Black CJ

The Commonwealth appealed the decision of Wilcox J on six grounds. They were all canvassed in the leading judgement handed down by the Chief Justice. The most pertinent ground for appeal was in relation to the question of whether the ADF requirement to distinguish, exclude or preference on the ground of age was a requirement in respect of the job as a pilot and whether it was based on the inherent requirements of the job. The Commonwealth claimed that Wilcox J erred in finding that the term based on requires more than a logical link.

The Commonwealth contended that Wilcox J should have found that HREOC incorrectly interpreted the phrase based on as requiring more than a logical connection between the distinction, exclusion or preference and the inherent requirements of the particular job. It was the view of the Commonwealth that HREOC incorrectly formulated the question for determination to be whether age is an inherent requirement of the particular job, rather than whether the 19 – 28 Rule is based on the inherent requirements of that job.

At first instance WilcoxJ found that HREOC’s formulation of the inherent requirements issue did reflect some "looseness of language". However, the Commission’s insistence that the ADF demonstrate a direct correlation between the inherent requirements and a person’s age, demonstrated judicious reasoning in showing that the 19 – 28 Rule was not based on the inherent requirements of the job of a military pilot. The Chief Justice was also of the opinion that the insistence for a tight correlation between the 19 – 28 Rule and the inherent requirements of the job had the effect of removing any significant difference between the question posed by HREOC, that is whether age is an inherent requirement of the job as a military pilot, and the question the Commonwealth argued should have been posed, that is whether the 19 –28 Rule was based on the inherent requirements of the job as a pilot. Black CJ noted:

"The reason is that if A (the age exclusion) is necessary for B (a high level of medical fitness), and B is an inherent requirement of a job, then A can also be viewed as an inherent requirement of the job. Hence the Commission’s interpretation of "based on" as requiring direct correlation permitted, in this case, a shortening of the question."

Therefore, HREOC’s looseness of language was of no real consequence. However, the Full Court noted that to formulate the question in the manner submitted by the Commonwealth would have made it possible that age-based exclusions be founded upon assumptions about the capacities of persons in a particular age-bracket rather than upon the actual capacities of that person, assessed individually.

 The Commonwealth's appeal was dismissed.

 

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