FEDERAL COURT OF AUSTRALIA

Peacock v Human Rights & Equal Opportunity Commission [2002] FCA 984

HUMAN RIGHTS - alleged discrimination on account of age - compulsory retirement from Commonwealth public service - retirement required by statute on attaining age of 65 years unless decision made by Secretary to retain officer on the basis that it is desirable in the interests of the Commonwealth, that the officer continue in service - whether applicant could be compared with other groups or individuals in assessing whether discrimination occurred - whether Human Rights and Equal Opportunity Commission erred in law in finding that it was precluded from considering certain issues as a result of an earlier Federal Court judgment concerning the same parties, legislative provisions, and facts.

PRACTICE AND PROCEDURE – principle that one judge should follow the judgment of another judge on issues of construction – determination of ratio of earlier judgments.

WORDS AND PHRASES – “according to law”

Public Service Act 1922 (Cth), s 76V

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 3, 21, 31

Secretary, Department of Defence v Human Rights and Equal Opportunity Commission, Burgess, Collins and Lipping (1997) 78 FCR 208 discussed

Commonwealth of Australia v Peacock(2000) 104 FCR 464 followed

Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 discussed

Telstra Corp Ltd v Treloar(2000) 102 FCR 595 cited

S115/00A v The Minister for Immigration and Multicultural Affairs[2001] FCA 540 discussed

O'Donovan v Vereker (1987) 18 FCR 101 cited

Harradine v Secretary, Department of Social Security (1990) 25 FCR 35 cited

Kapagama v Minister for Immigration and Multicultural Affairs [1999] FCA 1881 cited

Yulianti v Minister for Immigration and Multicultural Affairs[2001] FCA 142 cited

R Cross and J W Harris, Precedent in English Law (4th Edn) at p 72.

Sir Anthony Mason, The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.

MORTIMER PEACOCK v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION & ANOR

N 54 OF 2002

MOORE J

8 AUGUST 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for an order of review by Mr Mortimer Peacock (“the applicant”) of two decisions made by the Human Rights and Equal Opportunity Commission (“HREOC”) on 11 January 2002.  The application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The decisions related to a complaint of the applicant that he experienced discrimination in his employment because of his age when he was compulsorily retired from the Australian Public Service (“APS”) upon reaching 65 years of age.

Statutory Framework

2                     Before setting out the background it is convenient to refer to the statutory provisions which are central to the applicant’s complaint.  The first is s 76V of the Public Service Act 1922 (Cth) (“the PS Act”) which provides:

“(1)     Subject to subsection (2), an officer shall, by force of this subsection, be retired from the service upon attaining the maximum retiring age.

(2)       Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and that officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer….

…

(4)       In this section, “maximum retiring age”, in relation to an officer, means… (b) in the case of any other officer – the age of 65 years.”

It is common ground that the applicant satisfied the definition of “an officer” under this section and his maximum retiring age was 65 years.  It can be seen that under subs (1) an officer’s employment in the APS concludes by operation of the subsection on attaining, relevantly, the age of 65 years.  It can also be seen that the effect of subs (1) can be ameliorated by the exercise of the discretionary power conferred by subs (2).  It should be noted that this provision no longer applies to officers of the APS as a result of the enactment of the Public Service Act 1999 (Cth).

3                     The other provisions of central relevance are found in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”).  Section 3 defines “discrimination” in the following way:

“‘discrimination’ means:

(a)       any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b)       any other distinction, exclusion or preference that:

                        (i)         has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

                        (ii)        has been declared by the regulations to constitute discrimination for the purposes of this Act;

but does not include any distinction, exclusion or preference:

(c)        in respect of a particular job based on the inherent requirements of the job; or

(d)       in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed”.

It can be seen that par (b) contemplates regulations extending the scope of the definition.  By Statutory Rule No. 407 of 1989, age became a characteristic or attribute for the purposes of the definition.

4                     Also relevant is s 21, which concerns the power of the Commission to order the production of documents.  It relevantly provides:

“(1)  Where the Commission has reason to believe that a person is capable of giving information or producing documents relevant to a matter under examination or inquiry under this Division, a member may, by notice in writing served on that person, require that person at such place, and within such period or on such date and at such time, as are specified in the notice:

(a)       to give to the Commission, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or

(b)       to produce to the Commission any such documents.

(2)       …”

5                     I turn now to set out, in summary, the background leading to these proceedings.

Background

6                     The present application is preceded by what is now a long history of litigation between the applicant and the Commonwealth over his compulsory retirement at the age of 65 years. In 1996 the applicant was employed as the Director of Psychology – Navy by the Commonwealth of Australia in the Department of Defence (“the Department”).  On 11 March 1996, the applicant applied to the Secretary of the Department to be retained in employment for six months beyond retirement age.  That is, he sought the exercise of the discretionary power conferred by s 76V(2) in his favour.  The applicant later sought to be retained in employment indefinitely.

7                     The applicant’s application for retention was initially declined by Mr Tonkin, Deputy Secretary of the Department on 15 May 1996.  The applicant appealed under the Public Service Regulations. The appeal was considered by Mr Ayers, the Secretary of the Department, who, in a letter dated 10 July 1996, again declined the applicant’s application for retention.  On 19 July 1996, the applicant turned 65 and was compulsorily retired by operation of s 76V(1).  The applicant challenged, unsuccessfully, the termination of his employment in a number of forums.  One avenue the applicant pursued was a complaint to HREOC which he made on 3 June 1996.  The complaint was ultimately considered by the Human Rights Commissioner, Commissioner Sidoti.

The decision of Commissioner Sidoti

8                     In considering the applicant’s complaint, Commissioner Sidoti sought to give effect to the judgment of Branson J in Secretary, Department of Defence v Human Rights and Equal Opportunity Commission, Burgess, Collins and Lipping (1997) 78 FCR 208 (“Burgess”).  The Commissioner said her Honour had concluded that having regard to the terms of s 76V(1), an officer is compulsorily retired by the force of the subsection, and not by reason of any “act or practice” (within the meaning of s 31(b) of the HREOC Act) of the employer (the Commonwealth).  Commissioner Sidoti concluded any inquiry about whether there had been discrimination was limited to a consideration of the exercise of the discretion under s 76V(2) of the PS Act.

9                     The Commissioner then considered whether the decision of the Secretary or delegate when exercising their discretion under s 76V(2) constituted an “act or practice” under s 31(b) of the HREOC Act.  He concluded, having regard to the reasoning of Branson J in Burgess (at 216), that the exercise of discretion did constitute an “act”, and that this was the relevant “act” to which the applicant’s complaint related.  The Commissioner then considered whether there had been discrimination on the basis of age in the exercise of the discretion.  Commissioner Sidoti examined the reasons given (both verbal and written) by Mr Ayers in his refusal to extend the applicant’s employment.  The Commissioner viewed as of particular relevance, the fact that Mr Ayers had stated in his letter to the applicant on 10 July 1996:

“...there is a Commonwealth interest in maintaining a balanced age profile in the Department and providing career opportunities for other suitable eligible staff, particularly at a time of significant staff reductions, and these interests would tend to mitigate against your continued employment”.

Mr Ayers repeated this view in oral evidence to the Commission.  Having regard to these statements and the examples given by Justice Branson in Burgess in relation to a distinction in relation to age, Commissioner Sidoti found that the Secretary’s opinion, resulting in the refusal of the applicant’s request to continue work, was formed at least “by reference to” age.  The Commissioner concluded that the manner in which the discretionary power conferred by s 76V(2) was exercised was proscribed discrimination under the HREOC Act.

10                  On 20 December 1999, Commissioner Sidoti upheld the complaint and recommended the Commonwealth pay $20,000 compensation to the applicant.  He did so on the basis of loss of opportunity to have his application to extend his employment considered in a non-discriminatory manner but also on the basis that the maximum period which the applicant could have continued work was for 6 months.  Reinstatement, which was sought by the applicant, was not considered by the Commissioner to be an appropriate remedy.

11                  On 11 January 2000, the Commonwealth applied to this Court for an order of review of the decision of Commissioner Sidoti on the grounds:

(a) that the Commission misdirected itself as to the meaning of the words “on the basis of” in s 3(a) of the HREOC Act, and

(b) that the Commission misunderstood the nature of the discretion that could be exercised under s 76V, and as a result, the Commission took irrelevant considerations into account in finding that the actions of the Commonwealth had been discriminatory.

12                  On 21 June 2000, the applicant applied to this Court for an order of review of the decision of Commissioner Sidoti in relation to the calculation of the compensation and the refusal to recommend reinstatement.  The two applications were heard by Wilcox J who gave judgment on 17 August 2000.

The decision of Justice Wilcox

13                  In Commonwealth of Australia v Peacock (2000) 104 FCR 464 (“Peacock”), Wilcox J first dealt with submissions concerning the determination by Commissioner Sidoti that there had been discrimination.  It is convenient to set out the passage from his Honour’s reasons in which this issue is considered even though it is lengthy:

“[36]  The fundamental problem about the present case is that it involves the attempted application of legislation proscribing age discrimination to a statutory provision that directly relates to a discrimination based on age.  Section 76V(1) of the Public Service Act terminates a person’s employment on the ground of age, and age alone, unless a particular decision is made by the relevant Secretary.  The necessity for that decision arises only in connection with Commonwealth employees imminently approaching their 65^th birthdays. 

[37]  However repugnant it may have become to contemporary ideas about age discrimination, s76V(1) existed when Mr Ayers came to make his decision.  I agree with the following comment of Branson J, in Burgess at 215:

‘Although many would now contend that sound personnel management practices involve an absence of discrimination on grounds, including age, irrelevant to work performance, the Public Service Act cannot be construed without regard being had to the terms of s76V(1).  It would not be a lawful exercise of the discretionary powers of a Secretary under s76V(2) for such powers to be used for the purpose of undermining the intention of Parliament as disclosed by the terms of s76V(1).  That intention appears plainly enough to be to ensure that in the ordinary course an officer of the Australian Public Service is to retire upon attaining the maximum retiring age.’

[38]  It follows that the discretion committed to a Secretary under s76V(2) was closely confined.  The relevant questions were these:

(i) given the general rule that Commonwealth officers are to retire at age 65, is it desirable, in the interests of the Commonwealth, that this particular officer continue in employment after attaining that age?

(ii) if so, should I determine that s76V(1) does not apply to that officer?

[39]  The first question might require consideration of many factors.  I agree with Branson J that they must include the subject matter, scope and purpose of the Public Service Act.  They must also include the needs of the relevant Department and the skills and relevant attributes of the particular officer.  Whatever scope there may be for the application to the Secretary’s decision of the definition of “discrimination” in s3 of the Human Rights and Equal Opportunity Commission Act, as augmented by the 1989 regulation, the officer’s age cannot be disregarded; it creates the necessity to make the decision.  The question only arises for determination by the Secretary because the officer is approaching the age of 65 years; the Secretary is considering whether, despite that fact, it is desirable, in the interests of the Commonwealth, for the officer to continue in the Commonwealth’s employment.  So I do not think that mere advertence to age can amount to “discrimination” within the statutory definition.

[40]  Given the nature of the Secretary’s task, I agree with the comment of Branson J, in Burgess, that “it was not open to HREOC to find such distinction or exclusion by comparing the position of the complainants with the positions of persons in respect of whom s76V(2) has no relevant operation”.  The distinction between the position of an officer approaching age 65, who needs a favourable exercise of a particular statutory discretion in order to remain in Commonwealth employment, and a younger officer, who does not, is a distinction imposed by s76V itself. 

[41]  Notwithstanding this, I accept the theoretical possibility that a decision under s76V(2) of the Public Service Act might involve an act or practice constituting discrimination within the meaning of the HREOC Act. [Emphasis added]  I admit to difficulty in envisaging cases where this would be so.  The examples offered by Branson J are certainly cases where the Secretary has made a distinction on the basis of age, as her Honour said.  But are they cases where the distinction had the effect of nullifying or impairing equality of opportunity or treatment in employment?  Equality with whom?  Once it be accepted that it is inappropriate, because of the terms of s76V(1), to compare the position of the 65 year old applicant with sub-65 year old candidates for the applicant’s position, it is difficult to see how the definition’s requirement of nullification or impairment of equality can be met.

[42]  In the present case, Commissioner Sidoti found Mr Ayers took into account, amongst other matters, “the need for a balanced age profile and the need to provide career opportunities for younger officers”.  It is not suggested these needs were irrelevant to determination of “the interests of the Commonwealth”.  It is suggested, and Commissioner Sidoti found, that, in taking into account these needs, Mr Ayers “made a distinction on the basis of age”.  Commissioner Sidoti also found that distinction was material in the formation of Mr Ayers’ opinion about “the interests of the Commonwealth”.

[43]  It follows from these factual findings that the decision made by Mr Ayers was materially affected by a distinction made by him on the basis of age:  the need to provide a balanced age profile and to provide career opportunities for younger officers.  But how did that distinction affect equality of opportunity or treatment in employment?  As between Mr Peacock and younger officers, at material times there was never relevant equality.  Mr Peacock’s previously equal right to continue in the Commonwealth’s employment had been swept onto the rock called s76V(1).  He was not in competition with any other officers who might have been approaching the age of 65 years and seeking extensions.  There was no question of Mr Ayers denying Mr Peacock’s equality with such persons.  [Emphasis added]

[44]  In the last paragraph of his reasoning concerning discrimination (quoted at para 25 above), Commissioner Sidoti set out his view about the “appropriate way” for Mr Ayers to have formed his opinion as to what was in the interests of the Commonwealth.  If s76V was to be retained at all, it may have been desirable, although I suspect there would be divergent views on the subject, to draft s76V(2) in such a way as to proscribe consideration of such matters as the departmental age profile and the provision of career opportunities for younger officers.  But this was not done.  There is a difference between a provision proscribing, on public policy grounds, consideration of a particular subject in the making of a statutory decision and legislation designed to ensure the decision makes no distinction, exclusion or preference (on a specified basis) that affects equality, as between individuals, of opportunity or treatment.  With respect to the Commissioner, I think he lost sight of this distinction; he treated Mr Ayers’ consideration of age as a distinction based on age, without considering how it might affect equality of treatment between individuals

[45]  In my opinion, the Commission’s reasoning exhibits error of law.  The s35 notice should be set aside and the matter remitted to the Commission for further consideration and redetermination according to law.”

14                  It can be seen that in examining the nature of the decision made by the Secretary under s 76V(2), Wilcox J agreed (at [40]) with observations of Branson J in Burgess, namely, “…it was not open to HREOC to find such distinction or exclusion by comparing the position of the complainants with the positions of persons in respect of whom s 76V(2) has no relevant operation”.  Of central importance in these proceedings are the statements of Wilcox J in the last two sentences of [43].  I will return to consider them later in this judgment.

15                  In relation to the applicant’s challenge to the calculation of compensation and the question of remedy more generally, Wilcox J concluded that Commissioner Sidoti had erred in his consideration of this question.  In the result the orders made by his Honour were:

“1.       The notice under s35 of the Human Rights and Equal Opportunity Commission Act 1986 issued by the Human Rights and Equal Opportunity Commission in respect of the complaint of Mortimer J Peacock against the Commonwealth of Australia be set aside.

2.         The said complaint be further considered by the Commission and determined in accordance with law.

3.         The matter of costs be reserved.”

The decision of Commissioner Ozdowski

16                  When the matter returned to the Commission to further consider the complaint the Human Rights Commissioner was Commissioner Ozdowski.  The Commissioner sought and received further written submissions from the parties.  On two occasions in May 2000, Commissioner Ozdowski wrote informally to the Commonwealth seeking information relating to the exercise of discretion under s 76V for the period 1 July 1995 to 1 July 1997.  The Commonwealth informed Commissioner Ozdowski that this material was not held centrally, and could only be made available for a fee and subject to statutory provisions regarding privacy.  This documentation became the subject of argument regarding the Commission’s intention to issue a notice under ss 21 and 33 of the HREOC Act requiring the Commonwealth to produce this material.

17                  On 11 January 2002, Commissioner Ozdowski issued a s 35 notice under the HREOC Act, which contained the two decisions the subject of the application presently before the Court.  The Commissioner considered the judgment of Wilcox J in Peacock, with particular emphasis on Paragraph [43] of his Honour’s reasons for judgment.  The Commissioner also took account of the judgment of Justice Branson in Burgess, and noted that both Wilcox J and Branson J envisaged the possibility of discrimination taking place in the exercise of s 76V(2).  However, the Commissioner went on to state in the following passage that he was precluded from considering the question of relevant equality in view of the comments made by Wilcox J:

“As the respondent has submitted, the question I have to decide may be formulated as follows: given that Wilcox J and Branson J envisaged the possibility of discrimination taking place in the exercise of the discretion conferred by section 76V(2), can I be satisfied that that possibility has been realised in the circumstances of this case?

I can see no reason in principle why a negative answer to that question is mandated by Wilcox J’s discussion of the need to consider the question ‘(e)quality with whom?’ in the context of section 3 HREOCA discrimination.  In relation to a different issue, Black CJ discussed the meaning of the term ‘equality’ in section 3 in the following terms:

            ‘Respect for human rights and the ideal of equality – including equality of opportunity in employment – requires that every person be treated according to his or her individual merit and not by reference to stereotypes ascribed by virtue of membership of a particular group, whether that group be one of gender, race, nationality or age.  These considerations must be reflected in any construction of the definition of ‘discrimination’ presently under consideration because, if they are not, and a construction is adopted that enables the ascription of negative stereotypes or the avoidance of individual assessment, the essential object of the Act to promote equality of opportunity in employment will be frustrated.’  (emphasis added)

If the essence of equality is treatment by reference to individual merit rather than by reference to stereotypes ascribed by virtue of membership of a particular group, then it seems to me difficult to understand why the comparator required by Wilcox J in Peacock may not be another person seeking an exercise of the discretion conferred by section 76V(2).  The fact that both persons could potentially be treated by reference to such stereotypes does not seem to me to be to the point.  If, as is contended in the present case, the complainant is ‘singled out’ by reference to such stereotypes, then she or he is not being treated by reference to individual merit, but rather by reference to stereotypes ascribed by virtue of membership of a particular group (regardless of the fact that other members of that group might escape similar treatment by reference to those stereotypes).  Indeed to adopt a contrary interpretation would appear to permit the perpetuation of such stereotypes and the maintenance of inequality and would not accord with the principle of construing remedial legislation in a beneficial manner.

However, in light of the comments of Wilcox J in paragraph 43 of his judgment in Peacock, I regard myself as precluded in this complaint from considering the question of whether there was relevant inequality as between Mr Peacock and other persons seeking a favourable exercise of the discretion conferred by section 76V(2).  For the same reasons, I concluded that the proposed notice under sections 21 and 33 of HREOCA should not be issued.”

(Emphasis added.)

Essentially for these reasons, the Commissioner dismissed the applicant’s complaint. 

18                  On 23 January 2002, the applicant lodged an application for an order of review of the Commissioner’s decision.  An amended application for an order of review was filed on 21 March 2002.  The stated grounds for review of the first decision were:

“a)      The First Respondent erred in law by failing to exercise its jurisdiction under s 31 of the Human Rights and Equal Opportunity Commission Act 1986.

b)         The First Respondent erred in law by failing to make a decision under s 31 of the Human Rights and Equal Opportunity Commission Act 1986.

c)         The First Respondent erred in law by failing to determine whether there was relevant inequality between the applicant and other persons seeking a favourable exercise of the discretion conferred by s 76V(2) of the Public Service Act 1922.”

The stated grounds for review of the second decision were:

“a)      The First Respondent erred in law by failing to exercise its jurisdiction under s 21 of the Human Rights and Equal Opportunity Commission Act 1986.

b)         The First Respondent improperly exercised the power conferred by s 21 of the Human Rights and Equal Opportunity Commission Act 1986 by failing to take into account a relevant consideration namely that the applicant could be compared with other persons seeking a favourable exercise of the discretion conferred by s 76V(2) of the Public Service Act 1922 and that information and documents probative of that issue was relevant to the inquiry.”

Consideration of the issues

19                  I turn to consider the first issue raised in this application.  It concerns whether Commissioner Ozdowski erred in taking the approach that he was precluded from considering the question of whether there was relevant inequality between the applicant and other persons seeking a favourable exercise of discretion conferred by s 76V(2).  Having regard to the submissions made by the applicant, Commissioner Ozdowski was considering whether the theoretical possibility adverted to by Wilcox J in [42] of his reasons existed in the case of the applicant.  It is to be recalled that in the paragraph of Commissioner Ozdowski’s reasons preceding the observation that he was precluded from considering the question, the Commissioner appears to be suggesting that such a comparison could be made for the purpose of determining whether there had been discrimination of the proscribed type.  Thus, the Commissioner can be taken to have been indicating he was precluded, as a matter of law, from considering the applicant’s position in a way involving comparison with other people of essentially the same age seeking exercise of the discretion.

20                  While Commissioner Ozdowski does not explain why he believed he was constrained in this way, it is presumably because either Wilcox J had stated the relevant operation of the law as part of the ratio of his judgment or because the order made by his Honour required the Commission to give effect to the conclusion reflected in [43] of his Honour’s reasons (though this may possibly be two different ways of describing essentially the same thing). 

21                  Wilcox J had been called on to resolve an issue raised by the Commonwealth in its application for judicial review, namely, whether Commissioner Sidoti had erred in law in concluding that the Commonwealth had discriminated against the applicant.  The Commonwealth’s submission to Wilcox J had been that Commissioner Sidoti had failed to appreciate that there was an essential preliminary step of identifying a distinction, exclusion or preference when determining whether there had been discrimination.  However the Commonwealth had also argued that Commissioner Sidoti had failed to recognise that any relevant distinction, exclusion or preference must have a particular effect to be discrimination.  Specifically, that it must have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.  As part of this general submission, counsel for the Commonwealth submitted a comparison could be made, not with Commonwealth employees who had not yet attained the age of 65, but rather with employees who had attained that age and sought the exercise, in their favour, of the discretion provided by s 76V(2).  However the submission went further and was to the effect that it was logically impossible for there to be a distinction, exclusion or preference made between such people on the ground of age because they were of the same age.

22                  Counsel for the applicant answered these submissions by submitting to Wilcox J that it was not necessary to make a comparison between the position of the applicant and anybody else.  However, in addressing a matter raised by Wilcox J, counsel for the applicant submitted that if consideration of matters such as “equality of opportunity” and “equality of treatment”, required comparisons, then the proper comparison was between the treatment afforded to the applicant and the position of other people who might be candidates for his position.

23                  It is clear from Wilcox J’s reasons, and in particular [41], that his Honour took the view that any consideration of whether there had been discrimination, in a case such as that raised by the applicant, required consideration of equality of opportunity or treatment and that, in turn, required a process of comparison.  It is also clear that his Honour rejected the proposition that such a comparison could be with candidates for the applicant’s position who were less than 65 years of age.  That is, his Honour was rejecting the comparators identified by counsel for the applicant.  His Honour also rejected, in [43], the comparators apparently relied on by Commissioner Sidoti, namely younger officers for whom career opportunities should be provided.  The critical question is whether Wilcox J was also rejecting as possible comparators, in the last two sentences of [43], other officers approaching the age of 65 years and seeking extensions, and his Honour was doing so because they could not be comparators as a matter of law.

24                  I accept, as counsel for the applicant submitted in these proceedings, that on one view, all Wilcox J was saying in the last two sentences of [43] was that the applicant had not been in competition with other officers of the same age seeking extensions as a matter of fact and the primary decision maker (Mr Ayers) had not denied the applicant equality with those officers as a matter of fact.  However, in my opinion, Wilcox J was going further.  His Honour was rejecting the suggestion, particularly in the last sentence, that a comparison of any legal relevance could be made with that group of officers and that, by reference to that group, no question of denying equality could arise.  His Honour was, in effect, accepting the submission the Commonwealth had made, namely that comparison was required, the relevant comparators might be officers of the same age seeking extensions but that it was a legally irrelevant comparison because the applicant and the comparators were of the same age.

25                  In my opinion the conclusions reached in the last two sentences of [43] were steps in the reasoning process which led Wilcox J to conclude, by reference to the submissions that had been made, the decision of Commissioner Sidoti was infected by legal error.  However were they part of the ratio of his Honour’s judgment as the Commonwealth now contends in these proceedings?  A convenient recent summary of the applicable law concerning what constitutes the ratio of a judgment is found in Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 at [24] to [27].  The Full Court said:

“The principles governing how a Court determines what is the ratio of an earlier judgment are difficult to articulate with precision and can be difficult to apply.  A recent example of differing approaches to this issue is found in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524.  In that matter a Full Court considered whether observations of two members an earlier Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 about whether a method of medical treatment of the human body is patentable under the Patents Act 1990 (Cth) formed part of the ratio or were obiter dicta.  Black CJ and Lehane J were prepared to assume (at 529) the observations were obiter.  Their Honours then considered the issue themselves and came to the same conclusion.  Another specific question arose in Bristol-Myers Squibb Company v F H Faulding & Co Ltd about the operation of s 117 of the Patents Act 1990 (Cth).  That specific question had been the subject of observations by the same members of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd.  Black CJ and Lehane J viewed the earlier observations on this question as obiter. That was because the observations were unnecessary to the decision and made without elaboration and in passing.

The other member of the Full Court in Bristol-Myers Squibb Company v F H Faulding & Co Ltd was Finkelstein J.  His Honour addressed directly the question of whether the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd had determined the question of whether a method of medical treatment of the human body was patentable. After surveying at length authorities (569-573) concerning what constitutes the ratio of a judgment, Finkelstein J concluded (at 573) that the answer given by the majority in the earlier case formed part of the ratio.  His Honour adopted a fairly broad view of what, as a matter of general principle, should be viewed as constituting the ratio.

Another recent example where the Court (a single judge) had to consider whether observations of an early at Full Court formed part of the ratio is found inWoolworths Ltd v Commissioner of Taxation [1999] FCA 102.  Hely J had to determine whether observations of Lehane J (with whom the other members of the Full Court agreed) in CCA Beverages (Sydney) Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 212 about a credit ground of Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (Cth) were obiter.  While Lehane J had considered a ground (CR 5) different to the one (CR 4) confronting Hely J, there was no material difference in the language of the two grounds.  On the question of whether the observations of Lehane J were obiter or not, Hely J said:

            ‘The respondent submits that the observations which I have quoted are obiter, uncritical in character, unsupported by any reasoning process and that they cannot be correct.

            Professor Cross described the ratio decidendi as:

                        “Any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion having regard to the line of reasoning adopted by him ….”

            R Cross and J W Harris: Precedent in English Law (4th Edn) p 72.

            Sir Anthony Mason, when writing extra-judicially, said:

                        “The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision.”;

The Use and Abuse of Precedent (1988) Australian Bar Review 93 at p 103.

            The trial judge expressly stated (at 133 ALR 776) that he was not required to determine whether CCA was entitled to a credit for the purpose of deciding its entitlement to the relief sought.  Nor did the full Court treat it as “necessary” to determine whether there was a credit entitlement in order to determine the appeal.  The observations earlier quoted were amongst a number of reasons why CCA’s arguments based on s 95 of STAA failed.  The Commissioner did not seek to disturb the trial judge’s conclusion that there was an entitlement to a credit under CR4, and, in any event, the sale of the containers to CCA was subject to an exemption by virtue of Item 27 of Schedule I to the E & C Act.

            That being so, I do not believe that I am bound to reach a result in the present case which accords with the declaration as to the entitlement to a credit made in CCA.  Nor is there any reasoning process to be found in the judgments which, if applied to CR5, would require a conclusion that goods which have ceased to be assessable goods are nonetheless covered by Table 1, when the effect of Note (1) is that Table 1 does not apply to a dealing with them.’

The question of whether an earlier authority was a binding precedent has also recently been considered by another Full Court though in relation to the effect in this Court of a decision of the High Court: see Foster v Northern Territory of Australia [1999] FCA 1235.”

26                  In my opinion, the conclusions expressed by Wilcox J in the last two sentences of [43] were an integral part of his Honour’s reasoning when determining how the relevant provisions of the HREOC Act operated in the circumstances considered by Commissioner Sidoti as part of determining whether the Commission had erred in law.  It is true that the issue identified by the Commonwealth in ground (a) raised directly the approach of the Commissioner to the expression “on the basis of”.  However that ground, together with the submissions that were made, in particular by the Commonwealth, required Wilcox J to consider the operation of the entire definition of “discrimination” in the factual context raised by the applicant.  Moreover the Commonwealth’s contention that Commissioner Sidoti had considered irrelevant considerations required Wilcox J to address what were and were not relevant considerations of s 3.

27                  A submission was made by counsel for the applicant in these proceedings that what is comprehended by “age” in the HREOC Act is not the same as that which is comprehended by “age” in s 76V of the PS Act.  On this basis, it was submitted, the conclusion embodied in the last two sentences of [43] was not correct. As I understood the submission, I was effectively being invited to adopt a different construction of s 3 to that adopted by Wilcox J.  However this is plainly a case where I should apply with full rigour the principle that one judge should follow the judgment of another judge on issues of construction, unless the judge is satisfied the other judge is plainly or clearly wrong.  It is an approach that should be followed, particularly where issues of construction are concerned, for reasons of principle which were discussed at length by the Full Court Telstra Corp Ltd v Treloar (2000) 102 FCR 595.  The need to adopt this approach is all the more acute in a case such as the present where the earlier judgment concerns the same parties and the same legislative provisions applying to the same substratum of facts.  I am not satisfied that Wilcox J was plainly wrong in concluding that the definition of “discrimination” did not permit a comparison between the applicant and others approaching 65 years of age seeking the exercise of the discretionary power under s 76V(2).

28                  It is also true that what I believe were the conclusions reached by his Honour left little, if any, scope for the application of those provisions in the applicant’s favour.  Thus it might be thought that I have overstated the conclusions reached by Wilcox J because he remitted the matter the Commission.  On what I view were his Honour’s conclusions, there were limited prospects of the applicant succeeding if the matter was remitted to the Commission.  However no submission was apparently made (at least in the sense that none is recorded in his Honour’s reasons as having been made or was made by the Commonwealth in their written submissions to his Honour) that the matter should not be remitted to the Commission because to do so would be futile.

29                  The applicable principles concerning whether it is futile to remit a matter in the context of judicial review of administrative action are conveniently summarised by Finn J in S115/00A v The Minister for Immigration and Multicultural Affairs [2001] FCA 540:

“[It is open to a Court] to decline to grant relief and to affirm a Tribunal decision notwithstanding an error infecting it, where it would be futile to remit the matter to the Tribunal for reconsideration: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238.  Illustrative of circumstances where the "futility principle" may properly be applied are (i) where notwithstanding the Tribunal's error, the decision arrived at was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562; or where the same result would be inevitable on the remitter: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214; see also Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301.  But where it is possible for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.”

30                  In the present matter, Wilcox J acknowledged the theoretical possibility of a decision under s 76V(2) involving proscribed discrimination on the grounds of age and it is likely his Honour did so, at least in part, in deference to the views of Branson J in Burgess with which he generally agreed on other matters.  However it is relatively clear that his Honour could not give content to the theory in the sense that he indicated he could not conceive of examples.  It is probable that in the absence of argument that the matter should not be remitted, his Honour proceeded on the footing that the applicant should be given the opportunity of establishing that his circumstances were, in fact, an example of the theoretical possibility.  The result would have been likely to have been the same had a submission been made that there should be no remitter for reasons of futility.  That is because Wilcox J would probably have concluded that he could not be satisfied it was inevitable that the applicant would fail before the Commission.  However I am satisfied that his Honour did not intend that the applicant could bring himself within the unidentified "theoretical possibility" by simply calling in aid as comparators, 65 year old applicants for exemption or younger Commonwealth employees which were the bases on which the case was most recently advanced by the applicant before the Commission. 

31                  In my opinion, Commissioner Ozdowski did not err in dealing with the applicant’s complaint on the basis that he was precluded by what was said by Wilcox J in [43] from considering the question of whether there was relevant inequality as between the applicant and other persons seeking a favourable exercise of the discretion conferred by s 76V(2).  The Commissioner was bound to do so, as the conclusions Wilcox J had reached about the proper construction of the relevant provisions of the HREOC Act and the application of those provisions to the circumstances of the applicant formed part of the ratio of his Honour’s judgment.

32                  Having regard to this conclusion it is probably unnecessary to consider in detail the alternative basis on which the same result might be arrived at, namely that the actual order made by Wilcox J required the Commission (which was bound by the order) to approach the matter on the basis discussed in the preceding paragraph.  However an order requiring an administrative decision maker to deal with a matter “according to law” obliges the decision maker to apply established principles of law: see O'Donovan v Vereker (1987) 18 FCR 101 at 123.  The decision maker is bound to apply the construction of legislation determined by the Court: see Harradine v Secretary, Department of Social Security (1990) 25 FCR 35 at 36 and also Kapagama v Minister for Immigration and Multicultural Affairs [1999] FCA 1881 and Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142.  Accordingly the Commission was bound by the order to determine the matter on the construction of the HREOC Act adopted by Wilcox J as applied to the circumstances in question.

33                  It was accepted by counsel for the applicant in these proceedings, I think correctly, that the challenge to the decision concerning the production of documents was a subsidiary one and the application would be effectively resolved by determining whether Commissioner Ozdowski erred in relation to the decision, in substance, to dismiss the complaint.  Accordingly it is unnecessary to deal with this subsidiary matter.

34                  In the result, the application should be dismissed with costs.

Associate:

Dated:              8 August 2002