Commonwealth v Bradley

[1999] FCA 1524

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor [1999] FCA 1524

ADMINISTRATIVE LAW – Judicial review – Decision of administrative character made under an enactment – Meaning of “decision” – Whether finding and recommendation by Human Rights and Equal Opportunity Commission constitute a reviewable “decision” – Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

HUMAN RIGHTS – Discrimination in employment – Distinction, exclusion or preference not discriminatory if based on the inherent requirements of the particular job - Age requirement for appointment to Army Specialist Service Officer Pilot Scheme – Whether single judge erred in finding that requirement not discrimination on the ground of age – Whether single judge erred in finding that requirement not based on the inherent requirements of the job of a military line pilot

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5
Discrimination (Employment and Occupation) Convention 1958 (ILO Convention No. 111)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) subs 3(1), ss 31, 32, 35
Human Rights and Equal Opportunity Commission Bill 1985 (Cth) outline, clause 3
Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) reg 4

Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 applied
Edelsten v Health Insurance Commission (1990) 27 FCR 56 considered
Western Airlines, Inc v Criswell (1984) 472 US 400 considered

COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ANOR

NG 1194 OF 1998

JUDGES:      BLACK CJ, TAMBERLIN & KATZ JJ
DATE:           4 NOVEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1194 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Appellant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

ROBERT BRADLEY
Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondents’ costs of the appeal, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NG 1194 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Appellant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

ROBERT BRADLEY
Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	4 NOVEMBER 1999
PLACE:	SYDNEY

BLACK CJ

1This is an appeal against a decision of Wilcox J, dismissing an application for judicial review of a finding by the Human Rights and Equal Opportunity Commission (“Commission”) that the Australian Defence Force’s (“ADF”) denial of employment to the second respondent, Mr Bradley, constituted “discrimination” within the meaning of subs 3(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“Act”). The Commission’s finding was made following its investigation into a complaint by Mr Bradley that the ADF had refused to consider him…