Fisher v Commonwealth of Australia [2023] FCAFC 106
File number:
VID 545 of 2021
Judgment of:
MORTIMER CJ, KATZMANN, CHARLESWORTH, ABRAHAM AND KENNETT JJ
Date of judgment:
12 July 2023
Catchwords:
HUMAN RIGHTS – discrimination – special case stated – where applicant an Aboriginal man not yet of the age to qualify for the age pension if Social Security Act 1991 (Cth) is applied according to its terms – where Indigenous men have shorter life expectancy than non-Indigenous men – whether applicant or represented persons enjoy the right to apply for and receive age pension ‘to a more limited extent’ than non-Indigenous men for purposes of s 10 of Racial Discrimination Act 1975 (Cth)
REPRESENTATIVE PROCEEDING– whether applicant and represented persons have same interests in proceeding – where interests of group members in proceeding contingent on future events for practical value
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 1, 2, 5
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 9
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Fisher v Commonwealth of Australia [2023] FCAFC 106
Case
[2023] FCAFC 106
Decision Date
CaseChat Overview and Summary
In the case of Fisher v Commonwealth of Australia, the applicant, an Aboriginal man, argued that the Social Security Act 1991 (Cth) discriminated against Indigenous men by virtue of their shorter life expectancy, which resulted in them not qualifying for the age pension until a later age compared to non-Indigenous men. The Federal Court was tasked with determining whether the applicant and represented persons enjoyed the right to apply for and receive the age pension "to a more limited extent" than non-Indigenous men under section 10 of the Racial Discrimination Act 1975 (Cth), and whether the applicant and represented persons had the same interests in the proceeding. The court was also required to decide whether the pension age for the applicant and represented persons should be 64 years of age or any other age less than 67 years of age.
The court examined the arguments put forth by both parties and considered the relevant legal principles. In its reasoning, the court noted that the observations of the majority did not necessarily support the applicant's position in the present case. It was noted that the majority Justices might not have embraced the submission being put by the applicant. The court also considered intermediate appellate court decisions, which it found not to be directly on point. The court ultimately determined that the applicant and represented persons did not enjoy the right to apply for and receive the age pension "to a more limited extent" than non-Indigenous men, and that the question of the pension age did not arise.
In conclusion, the Full Court answered the questions of law in the amended special case as follows: (1) the applicant and represented persons have the same interest in the proceeding, save for the relief set out in paragraph 2 of the amended originating application, and (2) neither the applicant nor the represented persons enjoy the right to apply for and receive the age pension "to a more limited extent" than non-Indigenous men. The court ordered that within 35 days, each party file and serve a short written submission on any further orders that they contend should be made by the Full Court. Subject to this order, the proceeding was referred back to a docket judge for case management.
Orders
Orders of the court
1. The questions of law in the amended special case set out in Annexure B of the orders of the docket judge dated 9 December 2022 be answered as follows:
(1) Do the Applicant and each of the represented persons have the same interest in the proceeding, save for the relief set out in paragraph 2 of the amended originating application?
Answer: Yes.
(2) Do:
a. the Applicant; and, or alternatively
b. the represented persons,
enjoy the right to apply for and receive the age pension “to a more limited extent” (within the meaning of that expression in s 10 of the Racial Discrimination Act 1975 (Cth)) than non-Indigenous men born on or between 1 January 1957 and 31 December 1957, by reason of:
c. ss 23(5A) and 43 of the Social Security Act 1991 (Cth); or
d. alternatively, s 3 and Schedule 11, item 1, of the Social Security and Other Legislation Amendment (Pension Reform and Other 2009 Budget Measures) Act 2009 (Cth) (as it applied to item 5 of the table in s 23(5A) of the Social Security Act)?
Answer: No.
(3) If the answer to Question 2 is yes, does s 10 of the Racial Discrimination Act operate such that the “pension age” for:
a. the Applicant; and, or alternatively
b. the represented persons,
for the purposes of item 5 of the Table appearing in s 23(5A) of the Social Security Act, and for the purposes of s 43 of the Social Security Act, is:
c. 64 years of age?
d. Any other age less than 67 years of age?
Answer: Does not arise.
2. Within 35 days, each party file and serve a short written submission on any further orders that they contend should be made by the Full Court.
3. Subject to order 2, the proceeding otherwise be referred back to a docket judge for case management.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
That said, it is not clear that the observations of the majority support the position of the applicant in the present case. Care must be taken, of course, because their Honours did not have before them issues of the kind that arise here. For the most part, their observations on s 10(1) are at a fairly high level of generality. The following points suggest that at least some of the majority Justices might not have embraced a submission of the kind being put by the applicant here.(a)The hypothetical example of a planning law, discussed by Bell J at [203]–[204], is somewhat closer to the present case. In the example, the law would affect only (or predominantly) members of a particular race because of the composition of the class of persons who owned property in the relevant location. As noted above, her Honour suggested (without elaborating) that, in context, the limitation on the enjoyment of rights might not engage s 10(1) on the basis that it “would have no connection to race”. This suggests that s 10(1) is not necessarily engaged by any law that affects the enjoyment of rights by people of different races in different ways.(b)Gageler J at [335] suggested that not every disparity in the extent of enjoyment of a human right would engage s 10(1). The difference would need to be “of such a degree as to be inconsistent with persons of those two races being accorded equal dignity and respect”, and the significance of the difference could be affected by contextual factors. That suggests that, in the case of a law of the kind presently under discussion (conferring an entitlement on the basis of criteria that pay no regard to race), more would need to be shown than that members of one race are less likely to meet its criteria than members of another race.2.3.2 Intermediate appellate court decisions The Commonwealth also relied on several decisions of intermediate appellate courts. The applicant submitted that, to the extent that these decisions supported the Commonwealth’s position, they were inconsistent with Maloney and should not be followed. We have come to the view that none of these cases is directly on point, so that no question arises as to whether they should be followed. We therefore do not need to express concluded views as to whether any of these cases was (as the applicant submitted) wrongly decided. However, it is useful to say something about two preliminary matters before discussing the cases: the relationship between intermediate appellate decisions and “seriously considered dicta” of the High Court; and the position of a Full Court of this Court constituted (in the original jurisdiction) to determine separate questions. The view has occasionally been expressed that, as a matter of precedent, a decision by a Full Court exercising the original jurisdiction of the Court carries no more weight than three (or five, as the case may be) single judge decisions to the same effect: see the cases cited in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [31] (Allsop CJ) (FAK19). However, in FAK19 the Chief Justice doubted the correctness of that view, given the text and structure of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the importance of Full Court authority in the operation of the system it creates: at [32]. The issue did not need to be decided in FAK19. The point did arise, however, in Pitman v Commissioner of Taxation [2021] FCAFC 230; 289 FCR 287 (Pitman), where the Full Court exercising original jurisdiction (in an “appeal” from the Administrative Appeals Tribunal) was invited to depart from a decision of an earlier Full Court exercising the same jurisdiction. Davies J (at [10]) regarded that step as not open unless the earlier decision was “plainly wrong”, and quoted from other parts of Allsop CJ’s reasons in FAK19. Allsop CJ (at [3]) agreed and said:… for all the reasons set out in FAK19 at [14]–[29], in particular the reasons directed to the text and structure of the [FCA Act], Full Court decisions in the original jurisdiction (often sat for the purpose of expressing a view on a legal or constructional question) should not be viewed somehow as of lesser authority than Full Court decisions in the appellate jurisdiction.