Peacock v Human Rights and Equal Opportunity Commission

The case of Peacock v Human Rights and Equal Opportunity Commission involved an application for judicial review by the applicant, who was compulsorily retired by the Commonwealth at the age of 65, challenging the decision of the Human Rights Commissioner. The applicant had previously applied for and was refused retention beyond the retirement age under section 76V(2) of the Public Service Act 1922. The applicant subsequently lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC), alleging discrimination on the basis of age. The Human Rights Commissioner, Commissioner Sidoti, found that the exercise of the discretion under section 76V(2) constituted discrimination against the applicant. The applicant then sought judicial review of the Commissioner’s decision, arguing that the Commissioner had erred in failing to consider the issue of inequality between the applicant and other persons seeking a favourable exercise of the discretion.

The primary legal issue before the court was whether the Commissioner had erred in concluding that he was precluded from considering whether there was relevant inequality between the applicant and other persons seeking a favourable exercise of the discretion under section 76V(2) of the Public Service Act. The applicant argued that the Commissioner should have compared the applicant’s situation with that of other individuals of the same age who sought to exercise the discretion to continue employment beyond the retirement age. The court examined whether the Commissioner was legally bound to consider such a comparison and concluded that the Commissioner’s decision not to do so was consistent with the reasoning of Justice Wilcox in a previous case. The court found that the Commissioner was not precluded by law from considering the issue of inequality but chose not to do so because it was not necessary to determine whether there had been discrimination. The court upheld the Commissioner’s decision and dismissed the application for judicial review.

The court ordered that the application be dismissed and that the applicant pay the respondents’ costs. This outcome affirmed the Commissioner’s decision that there was discrimination on the basis of age in the exercise of the discretion under section 76V(2) of the Public Service Act and upheld the approach taken by the Commissioner in considering the complaint.