Munday v Commonwealth of Australia (No 2)

The applicants, Ms Catherine Day and Mr Michael Munday, sought a judicial review of the Commonwealth's decision to deny Ms Day's applications for early release of her superannuation on compassionate grounds. The Federal Court was tasked with determining whether the Commonwealth's imposition of a lawful purpose requirement for the release of superannuation funds constituted unlawful discrimination against Ms Day on the basis of her disability (infertility). Additionally, the court had to consider whether the failure to obtain independent legal advice before imposing this requirement constituted a failure to make a reasonable adjustment under the Disability Discrimination Act 1992 (Cth).

The court found that the requirement of a lawful purpose for the release of superannuation funds was not specified in the Superannuation Industry (Supervision) Act 1993 (Cth) or the Superannuation Industry (Supervision) Regulations 1994 (Cth). Despite this, the court held that the decision-maker was entitled to conclude that the purpose for which Ms Day sought to use the funds was not lawful under Australian law, as it involved paying for ova, which is illegal. Consequently, the court ruled that the decision did not involve unlawful discrimination as it applied equally to all applicants, regardless of disability. Furthermore, the court found that there was no obligation to obtain independent legal advice before imposing the lawful purpose requirement, and thus, no failure to make a reasonable adjustment occurred.

The court dismissed the application and ordered that the applicants pay the respondent's costs. The decision underscores the importance of adherence to legislative and regulatory frameworks in the administration of superannuation programs, while also highlighting the need for consistent application of rules to all applicants to avoid claims of unlawful discrimination.