Fisher v Commonwealth of Australia

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.