Federal Court of Australia

MAN25 v Commonwealth of Australia [2026] FCA 1349

ORDERS

THE COURT ORDERS THAT:

1. The respondent’s interlocutory application dated 3 March 2026 is dismissed.

2. The respondent is to pay the applicants’ costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J

1 This is a representative proceeding pursuant to Pt IVA of the Federal Court of Australia Act 1978 (Cth) (FCA Act) brought by four lead applicants, each former members of the Australian Defence Force (ADF) claiming to have suffered various forms of unlawful discrimination in their workplace contrary to the Sex Discrimination Act 1984 (Cth) (SD Act), against the Commonwealth of Australia (the Commonwealth).

2 These reasons address the Commonwealth’s interlocutory application filed 3 March 2026 which advances three categories of issues arising out of the applicants’ pleaded claims. The Commonwealth seeks the following orders:

(1) pursuant to s 33ZF(1) of the FCA Act that, by reason of s 33E(2), any current service member of the ADF (ADF Member) is not a group member in the proceeding unless the person gives their written consent in accordance with r 9.33 of the Federal Court Rules 2011 (Cth) (Rules);

(2) pursuant to r 16.21 of the Rules that, by reason of the failure to satisfy s 33C(1)(b) and/or (c) of the FCA Act, the amended statement of claim dated 10 February 2026 (ASOC) be struck out in whole, with leave to replead;

(3) in the alternative, pursuant to r 16.21 of the Rules that, by reason of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), paragraphs [15], [41]-[49], [51], [60], [68]-[74], [81], [101], [104]-[105], [112]-[118], [125], [150]-[155], [177]-[182], [191]-[197], [211]-[214], and [231]-[235] of the ASOC be struck out, with leave to replead.

3 The parties summarised their positions as follows.

4 In relation to prayer 1, the Commonwealth submitted that by including current members of the ADF the applicants’ group member definition purports to include persons who would be “an officer of the Commonwealth … in his or her capacity as such an officer”. Under s 33E(2)(d) of the FCA Act, such persons cannot be made group members without their written consent. The applicants submitted prayer 1 mischaracterises the capacity in which current ADF Members are made group members. ADF Members, in particular enlisted members, are not officers of the Commonwealth within the meaning of s 33E(2)(d) of the FCA Act at all; and in any case, the rights asserted are private statutory rights wholly divorced from any capacity as such an officer.

5 In relation to prayer 2, the Commonwealth submitted the applicants’ pleaded claims fail to satisfy the “gateway” requirements for representative proceedings in s 33C(1)(b) and/or (c) of the FCA Act, which requires that the claims of all group members “are in respect of, or arise out of, the same, similar or related circumstances” ((1)(b)) and that all group members’ claims “give rise to a substantial common issue of law or fact” ((1)(c)). Properly analysed, the claims are so disconnected and individualistic that they fail to satisfy these requirements. The applicants submitted that prayer 2 fails to identify the common thread in this case. Every group member is a deemed employee of a single employer by statute, subject to a unified chain of command, a single disciplinary system, and ADF-wide policies; both s 33C(1)(b) and (c) of the FCA Act are satisfied. This is a systems case against a single deemed employer, not an aggregation of bilateral incidents.

6 In relation to prayer 3, the Commonwealth submitted that some allegations of ‘unlawful discrimination’ included in the pleading are not “the same as (or the same in substance as) the unlawful discrimination that was the subject” of the complaint terminated by the Australian Human Rights Commission (AHRC), such that it does not satisfy the jurisdictional requirement in s 46PO(3) of the AHRC Act. The applicants submitted that prayer 3 misreads the terminated representative complaint. The complaint was lodged, accepted and terminated under s 46PH(1B)(b) of the AHRC Act as a representative complaint on behalf of a described class aggrieved by systemic acts, omissions and practices alleged in Attachment A to the AHRC complaint filed on 20 December 2024, not merely by the named complainants' individual incidents in Attachment B. The complaint, read as a whole, describes a systemic pattern of sexual harassment and sex discrimination against women serving as ADF Members across the claim period from which the impugned paragraphs arise.

7 I will address the issues in the order they appear in the interlocutory application, and in which the submissions were advanced.

8 Suffice to say at this stage, for the reasons below I have concluded that:

(1) current ADF Members are “officers of the Commonwealth” for the purposes of s 33E(2)(d) of the FCA Act, but those who fall within the definition of group member in this proceeding are not a member in their capacity as such officers;

(2) the applicants, by their pleadings, have satisfied the gateway in s 33C(1) of the FCA Act; and

(3) the impugned paragraphs in the ASOC fall within s 46PO(3) of the AHRC Act.

9 Accordingly, the interlocutory application is dismissed.

Section 33E(2) of the FCA Act

10 The general position under the FCA Act is that a group member’s consent is not required for representative proceedings to be commenced on their behalf. A person becomes a group member by falling within the description or identification of group members in the representative party’s pleading. If a person does not wish to be joined as a group member, they can choose to “opt out” under s 33J of the FCA Act. In contrast, s 33E(2) prescribes four specific exceptions which require for persons or bodies to provide written consent to be a group member (i.e. they must opt in).

11 Section 33E is in the following terms:

33E Is consent required to be a group member?

(1)    The consent of a person to be a group member in a representative proceeding is not required unless subsection (2) applies to the person.

(2)    None of the following persons is a group member in a representative proceeding unless the person gives written consent to being so:

(a)    the Commonwealth, a State or a Territory;

(b)    a Minister or a Minister of a State or Territory;

(c)    a body corporate established for a public purpose by a law of the Commonwealth, of a State or of a Territory, other than an incorporated company or association; or

(d)    an officer of the Commonwealth, of a State or of a Territory, in his or her capacity as such an officer.

(emphasis added)

12 In this proceeding, group members are defined in the ASOC at [15] as follows:

The persons on behalf of whom the Applicants bring this proceeding are women who:

15.1 were ADF Members within the meaning of section 4 of Defence Act [sic], whether in the Permanent Forces or the Reserves, during the period 13 November 2003 and 25 May 2025 (Claim Period);

15.2 were, or allege to have been, at or in connection with their work or in ostensible performance of their duties at ADF Workplaces (as defined at 28 below):

15.2.1    sexually harassed within the meaning of sections 28A and/or 28B of the SD Act;

15.2.2 from 11 September 2021, harassed on the ground of their sex within the meaning of section 28AA of the SD Act;

15.2.3 discriminated against in employment on the ground of their sex within the meaning of sections 5 and 14 of the SD Act; and/or

15.2.4 the subject of acts of victimisation within the meaning of section 47A of the SD Act;

where such conduct

15.2.5 consisting of discrimination was permitted by the Commonwealth within the meaning of section 105 of the SD Act;

15.2.6 consisting of sexual harassment or harassment on the ground of sex occurred after 11 September 2021 and was permitted by the Commonwealth within the meaning of section 105 of the SD Act; and/or

15.2.7 was conduct for which the Commonwealth is vicariously liable within the meaning of section 106(1) of the SD Act; and

15.3    suffered, or allege to have suffered, loss or damage by reason of the conduct alleged in subparagraph 15.2 above (Group Members).

13 The Commonwealth submitted that the group member definition at ASOC [15] is broad enough to encompass all ADF Members within the meaning of s 4 of the Defence Act 1903 (Cth) (Defence Act), whether in the Permanent Forces or the Reserves, between 13 November 2003 and 25 May 2025, provided that they are women who come within the scope of the description at ASOC [15.2] and [15.3]. The Commonwealth submitted the applicants cannot designate women who are current ADF Members as group members as they are officers of the Commonwealth and are members of the proceeding in that capacity, relying on s 33E(2)(d) of the FCA Act.

14 The applicants submitted ADF Members, in particular enlisted members, are not officers of the Commonwealth and, even if they are, they are not acting in that capacity in this proceeding.

15 Therefore, two issues arise: first, whether current ADF Members are “officers of the Commonwealth” within the meaning of s 33E(2)(d); and second, whether such persons are group members in this proceeding in their “capacity as such an officer”. Both parties accepted former ADF Members would not fall within the s 33E(2)(d) exception on the basis of having been a member of the ADF.

16 There is scant judicial consideration of the operation of the exceptions in s 33E(2), and the issue currently raised has not been considered.

17 As a starting point, the issue is one of construction. Recently, the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 424 ALR 768 at [4], described statutory construction as follows (citations omitted):

The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

18 The Court explained that context is to be understood in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy: at [5]. The use of extrinsic material in the construction is “guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context”: at [5], citing s 15AB(2) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act).

19 The Attorney-General, introducing the Federal Court of Australia Amendment Bill 1991 (Cth) (Bill), which included the representative proceeding provisions, observed:

The Government believes that an opt out procedure is preferable on grounds both of equity and efficiency. It ensures that people, particularly those who are poor or less educated, can obtain redress where they may be unable to take the positive step of having themselves included in the proceedings. It also achieves the goals of obtaining a common, binding decision while leaving a person who wishes to do so free to leave the group and pursue his or her claim separately.

Commonwealth, Parliamentary Debates, House of Representatives, 14 November 1991, 3175 (Michael Duffy, Attorney General).

20 The Explanatory Memorandum to the Bill explained s 33E in the following terms:

New section 33E – Is consent required to be a group member?

14.    This section provides that the consent of a person to be a group member is not required unless that person is the Commonwealth, a State or Territory or a Minister, officer or certain agencies of the Commonwealth, a State or Territory. The activities of Governments, government agencies, Ministers and officials may be subject to legislative and other restraints which make inappropriate the inclusion of such persons in a representative proceeding without consent.

21 The concept of “legislative and other restraints” was explained in the Australian Law Reform Commission: Grouped Proceedings in the Federal Court (Report No 46, October 1988) report at [128] which was the basis for the enactment of Pt IVA:

The procedure is intended to enhance access to legal remedies by private individuals who may otherwise be deterred by cost or other barriers from enforcing their legal rights. Because multiple wrongs can include many diverse situations, from personal injuries to financial loss, the range of potential group members could include the Commonwealth and State or Territory governments and their agencies. The activities of government agencies and officials are subject to legislative and other restraints. It may not be appropriate, in these circumstances, to commence proceedings without their consent. Accordingly the Commission recommends that in the case of the Commonwealth or a State, a Minister of State or a Minister of a State or Territory, a body corporate established for public purposes and an officer of the Commonwealth or of a State or Territory in his or her capacity as such an officer, consent should be required in order to commence their proceedings.

(emphasis added)

22 See also: BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 269 CLR 574 (Brewster) at [97].

Officer of the Commonwealth

Submissions

23 The Commonwealth advanced four propositions. First, all ADF Members are officers of the Commonwealth by reason of their service. That is, the fact of being an ADF Member renders one an officer of the Commonwealth. Second, an officer of the Commonwealth is not confined to ‘officer’ as defined in s 4 of the Defence Act. That definition serves a different and internal purpose within the ADF, distinguishing commissioned ranks from other ranks within the military hierarchy. Even for those service personnel who do not hold a commission, enlistment itself constitutes an appointment as an officer of the Commonwealth. Third, the statutory structure that governs all ADF Members is confirmatory of the fact that they are officers of the Commonwealth. Fourth, the protective purpose of s 33E(2)(d) supports a wide reading of the provision, encompassing all ADF Members. The Commonwealth referred to the relevant explanatory memorandum and ALRC report to support a submission that the purpose of s 33E(2)(d) is to protect a class of persons from being joined to a representative proceeding without their consent. It was said the purpose of the provision is to preserve the decisional autonomy of such persons, as they “may be subject to legislative and other restraints which make inappropriate [their] inclusion in a representative proceeding without their consent”.

24 The Commonwealth detailed aspects of the service of ADF Members which it said supported the submissions outlined above. It submitted the primary focus of the inquiry as to whether an ADF Member is an officer of the Commonwealth is the suite of public duties owed by such a person by virtue of their position. It contrasted that position to ordinary civilian employment. The Commonwealth submitted that the indicia of being an officer described by Isaacs J in The King v Murray; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437 (Murray) at 452, being appointment, tenure, and salary, is satisfied in relation to both commissioned and non-commissioned ADF Members (i.e. enlisted members).

25 The service conditions of ADF Members are regulated by the Defence Act, Defence Regulation 2016 (Cth) (Defence Regulation) and the Defence Force Discipline Act 1982 (Cth) (Discipline Act). Members enter the ADF by volunteering and being accepted for service: s 22(1) of the Defence Act. Upon acceptance, the Chief of the Defence Force appoints or enlists the person in one of the three services (Navy, Army or Air Force) subject to any conditions specified by the Chief of the Defence Force: rr 12(1) and (4) of the Defence Regulation. The member acquires a rank: s 21 of the Defence Act, as specified in schedule 1, sub clause (1). All ADF Members are appointed under, and serve on terms fixed by statute, not contract. No civil contract is created: s 27 of the Defence Act. ADF Members are bound to render continuous full-time service: s 23(1) of the Defence Act. There is no unilateral right of resignation, with termination at the discretion of the Chief of the Defence Force: r 24 of the Defence Regulation.

26 Statutory powers are conferred on ADF Members, including by the Defence Act and the Maritime Powers Act 2013 (Cth). ADF Members may use force, including lethal force, in service of the Commonwealth. For example, this includes the power to take various ‘authorised actions’ where the Governor-General issues a “call out order”, and enforcement powers conferred on ADF Members classed as “maritime officers”. ADF Members have obligations which extend for the duration of their service (e.g. ADF Members must comply with all lawful orders). ADF Members may be subject to ‘posting’, a formal directive for relocation either domestically or internationally.

27 Non-commissioned ADF Members derive their authority from their commanding officer, who exercises that authority on behalf of the commander of their respective service. Under this structure, the ADF is under the command of the Chief of the Defence Force: s 9 of the Defence Act, who is in turn answerable to the responsible Minister: s 8 of the Defence Act.

28 The ADF disciplinary system is established and enforced under the Discipline Act. This military justice system imposes a bespoke system of rules and corresponding duties on ADF Members. ADF Members can be disciplined for breaches of legal obligations that have no civilian analogue, including for resigning, failing to obey lawful commands, and for an absence without leave.

29 The Commonwealth submitted that the position of an enlisted member is relevantly indistinguishable from that of a commissioned officer: they are both appointed under statute, both serve on terms fixed by statute, and both are remunerated under a statutory regime. The Commonwealth submitted the features set out in [24]-[28] demonstrate a relationship between ADF Members and the Commonwealth that goes beyond mere employment, and are a “paradigm instance of the legislative restraints” contemplated by the explanatory memorandum. It submitted ADF Members’ “service is sui generis”.

30 The Commonwealth referred to Community and Public Sector Union v Commonwealth [1999] FCA 653; (1999) 94 FCR 146 (CPSU), where Marshall J recorded the parties’ agreement that the Deputy Registrars of the Family Court were officers of the Commonwealth within s 33E(2)(d) at [60], citing Re Winton; Ex p Jolliffe (1987) 17 FCR 89 at 93 and 96. That case concerned the meaning of the term officer of the Commonwealth as used in s 15(4) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) (Mr Jolliffe was a Deputy Registrar in Bankruptcy). The Commonwealth relied on the decision, submitting it supports their contention that “officer” is generally understood in a very broad sense. It was submitted, adopting this approach, the reference to an officer of the Commonwealth in s 33E(2)(d) should not be given a narrow or pedantic meaning.

31 The Commonwealth submitted s 33E(2)(d) does not permanently exclude a person from participating in representative proceedings. They can participate by giving written consent. The officer is asked to turn his or her mind to the question of whether to be a group member, and to make a decision after deliberation and, if thought appropriate, obtaining legal advice. This was described as a “modest imposition”. The Commonwealth submitted the provision respects, rather than constrains, the autonomy of the person. It is said that it “ensures a deliberate, informed choice about joining proceedings that may have implications for a person’s service, and their relationship with the Commonwealth, and the discharge of their duties”. As such, there is no requirement to read down the effect of the provision by narrowing the meaning of officer of the Commonwealth.

32 The applicants in oral submissions accepted the Commonwealth’s submissions on officer status are “not without force”. The criteria identified by Isaacs J in Murray can be pointed to in the case of at least some ADF Members, particularly commissioned officers. The applicants also accepted in oral submissions that the Full Court’s approach in Winton v Jolliffe (1988) 17 FCR 93 (Jolliffe), while turning on the internal structure of the Bankruptcy Act, does reflect a broad judicial instinct towards reading the expression expansively. Nonetheless, the applicants still relied on their written submissions contending that ADF Members, particularly enlisted members, are not officers within the meaning of s 33E(2)(d).

33 The applicants addressed what was said to be the lineage of the phrase officers of the Commonwealth from s 75(v) of the Constitution. They addressed, inter alia, Luck v University of Southern Queensland [2014] FCAFC 135; (2014) 145 ALD 1 (Luck) at [58] which was said to have confirmed the question is not determined by reference to the exercise of federal power but by a connection to the Commonwealth involving an office of conceivable tenure, an appointment, and usually a salary (citing Murray at 452 and Clarkson v Commonwealth of Australia [2006] FCA 1348 at [27]). The applicants submitted, by way of illustration, that the Governor-General, public servants, statutory officeholders (even though they are independent), the Commonwealth Director of Public Prosecutions, federal judges (but not High Court justices), Registrars of the Federal Court, the Family Court and the High Court, Australian Federal Police, Royal Commissioners, members of the Administrative Appeals Tribunal, Australian Security Intelligence Organisation staff, Ministers and their delegates, and military judges have all been held to be officers of the Commonwealth for the purposes of s 75(v): Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 2022, 7th ed) at [2.150]; Allars, Australian Administrative Law (LexisNexis, 2025) at [5.3].

34 Although the applicants accepted the Full Court’s constructive approach in Jolliffe, counsel submitted the Commonwealth’s reliance thereon did not assist its case, noting that s 33E(2)(d) does not expand what “officer” means for Commonwealth purposes, but rather extends an analogous protection to State and Territory officers, each of whom must still satisfy the criterion of holding an identifiable office under the relevant government. The breadth of the provision’s application does not dissolve the requirement of office-holding.

35 It was said by the applicants that what matters is whether the person holds an identifiable position to which they have been individually appointed by the Commonwealth and from which they derive authority as an officer. Enlisted members do not hold such a position but serve under command. ADF Members held to be officers of the Commonwealth are individuals appointed to specific statutory offices, such as military judges and members of service tribunals under the Discipline Act: see Private R v Cowen [2020] HCA 31; (2020) 271 CLR 316 at [135]; White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570 at [39]; Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 at [1]. Those are identifiable appointments with defined tenure and independent functions of the kind Isaacs J described in Murray. Those features do not extend to ADF Members generally.

36 The applicants also addressed the duties relied on by the Commonwealth to define ADF Members as officers of the Commonwealth, submitting the existence of those duties do not support that conclusion. Referring to the Explanatory Memorandum, the applicants submitted that s 33E(2) is directed to where a decisional conflict exists between the officer’s official position and their participation as a group member in a particular class action. A currently serving ADF Member who asserts she was subjected to unlawful sexual harassment does not compromise any obligation under the applicable defence legislation (referred to above) by doing so. The mere existence of a disciplinary code applicable to service life generally, is not a restraint of the type to which the applicants referred. The applicants submitted the Commonwealth failed to identify any “restraints” on ADF Members of the type referred to in the Explanatory Memorandum, or any provision of the Discipline Act that creates such a conflict.

37 The applicants submitted to read s 33E(2)(d) as capturing all currently serving ADF Members without distinction would remove a substantial class of persons with legitimate private law claims from the default opt out model that the legislature endorsed specifically on access to justice grounds. The opt out system of representative proceedings is a beneficial regime, and derogations from that should be construed narrowly. Nothing in the text of the statute nor the Explanatory Memorandum’s rationale warrants that result.

Consideration

38 The FCA Act does not define “officer of the Commonwealth”.

39 There is no authority which addresses this aspect of s 33E(2)(d). Although Marshall J in CPSU recorded the agreement of the parties that Deputy Registrars of the Family Court were officers within the meaning of that provision, there is no analysis as to why that was the case. In relation to Jolliffe cited therein, the analysis by the Full Court was focussed, and turned on, the meaning of the phrase officer of the Commonwealth within s 15(4) of the Bankruptcy Act. Although Einfeld J at first instance approached the issue on the basis that the ordinary meaning of officer of the Commonwealth was informed by s 75(v) of the Constitution, the Full Court did not follow that approach. The Full Court approached the question as one of construction by reference to earlier High Court and Privy Council authority on the meaning of “officers” of states, which they concluded “was understood, with relation to the Public Service, in a very broad sense”: Jolliffe at 96, emphasis added. The Full Court observed in Jolliffe at 96:

There is no reason why the expression "officer ... of the Commonwealth" should be construed in any sense different from that which is familiar in Australia in relation to officers of states. That sense is well indicated in two Privy Council appeals from New South Wales, Walker v Simpson [1903] AC 208 and Williams v Macharg [1910] A 476. The latter case affirmed the decision of the High Court in Williams v Macharg (1908) 7 CLR 213. It is clear from 221 of the High Court report that Griffith CJ thought it appropriate to refer to a messenger in the Public Service as an officer. It is also clear from the judgment of O'Connor J (at 228) that he thought a broad meaning is to be attached to the word "officer", quite apart from the statutory definition contained in the New South Wales Act there in question. O'Connor J thought the word applied to a draftsman in the New South Wales Public Service. Isaacs J (at 231) accepted the view that an officer was "a member of the Service". It is apparent both from the judgments in the High Court and in the Privy Council that the word "officer" was understood, with relation to the Public Service, in a very broad sense. That sense is an appropriate one to have been taken up by the legislature when enacting the Bankruptcy Act 1966, and it would embrace a Deputy Registrar. There is no need to consider whether a Deputy Registrar is also an "officer of the Commonwealth" within the meaning of s 51 (xxxix) and s 75(v) of the Constitution, or an officer of the Executive Government of the Commonwealth within the meaning of s 67 of the Constitution.

40 That said, both parties accepted that Isaacs J in Murray provides a test for determining the meaning of officer of the Commonwealth in constitutional jurisprudence. That is, considering the circumstances of appointment, tenure, and the provision of remuneration: see also Luck at [58]. Although accepting the task was one of construction of the relevant statute, each party relied, at least to some extent, on that approach. It can be accepted that such considerations may be relevant to the assessment of whether one is an officer of the Commonwealth.

41 Although the parties addressed this issue separately from whether one is a group member “in their capacity as an officer of the Commonwealth”, s 33E(2)(d) must be read as a whole. It is also to be construed in the context where this section applies to all Pt IVA proceedings. As the ALRC recognised, such proceedings may encompass very diverse claims.

42 As evident from the extrinsic material recited above, the purpose of an opt out procedure in s 33E(1) is a beneficial one. This provision appears in Pt IVA, which is itself beneficial. The exceptions to that procedure in s 33E(2) are to be construed in that context. The exception in s 33E(2)(d) is also to be construed in light of (a)-(c). The scope of those exceptions is more readily identifiable. They are also absolute. They identify governments, agencies and officials which, by their nature, may have legislative or other restraints placed on them of the kind referred to in the extrinsic material which may make inappropriate the inclusion of such persons or bodies in a representative proceeding without consent. In that sense, the section is protective.

43 I do not agree with the Commonwealth’s description that the imposition in s 33E(2)(d) is modest. Even leaving aside that it denies potential group members this beneficial aspect of the scheme, one only has to consider class actions with claims of the nature involved in this proceeding (e.g. allegations of unlawful discrimination including victimisation) to understand why it may be a real imposition.

44 The category of persons and bodies listed in the exceptions in s 33E(2), including (d) which is limited to persons in their capacity as an officer, reflects that there may be something in the roles or positions held by those persons or bodies which may impact on the appropriateness of their involvement in a class action if they fall within the group member definition. That is, the person or body should consider their position before becoming a group member, rather than being a group member by virtue of the definition of the class (unless they opt out). However, it does not follow, as the applicants tended to submit, that there is a requirement to establish the actual existence of a conflict between the duties of a person and group membership, to fall within the definition of officer of the Commonwealth for the purposes of s 33E(2)(d). That does not find support in the text of s 33E(2)(d). A problem with that approach is that whether a person satisfies the definition of officer of the Commonwealth is one of construction based on the position held, and cannot be dependent on the conflict that arises by reason of the nature of the underlying class action. That is, a person holding a position either is, or is not, an officer of the Commonwealth, within s 33E(2)(d) properly construed, irrespective of the nature of the underlying claim. The existence of the capacity qualification in s 33E(2)(d) supports that construction, as its existence recognises a person may be an officer of the Commonwealth because of their position, but their participation in the class action is not in that capacity and, as such, those persons ought not be deprived of the beneficial approach in s 33E(1), being opt out. That is, there is no basis or rationale for s 33E(2)(d) to apply.

45 That said, if there is no readily apparent potential for such a conflict between the subject of the class action and their position, that may assist in informing whether a person is a group member in their capacity as an officer. I return to this below.

46 The parties addressed the position of both commissioned and non-commissioned members of the ADF. It is unclear what the position of the applicants is in relation to commissioned officers, although it appeared they accept they were more likely to fall within the definition in s 33E(2)(d) than enlisted members. Commissioned members fall within the definition of officer in the Defence Act: s 4. An officer within s 4 holds a formal commission issued by the Governor-General: r 12(2) Defence Regulation. This commission grants the person authority to exercise higher levels of command and strategic decision-making responsibility than other ranks. I agree with the Commonwealth that that definition is directed to the internal structure and hierarchy in the Defence Force, as opposed to being directed to whether a person is an “officer of the Commonwealth”. While it is relevant, it is not the end of the consideration. Nor do I consider the fact an ADF Member does not fall within the definition of officer in s 4 of the Defence Act to be decisive on this issue.

47 I accept, as submitted by the Commonwealth, that the concept of an officer of the Commonwealth is broader. ADF Members fall outside the ambit of the Public Service Act 1999 (Cth) (Public Service Act), which governs Australian Public Service (APS) employees and, unlike APS employees, ADF Members are excluded from the Fair Work Act 2009 (Cth) (FW Act): e.g. C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81. Further, the suite of public obligations and duties owed by every ADF Member reflects that their service to, and relationship with, the Commonwealth goes beyond that of employee and employer. There are rights and privileges afforded to civilians ADF Members cannot claim. No civil contract of any kind is created with the Crown or the Commonwealth in connection with a member's service in the Defence Force: s 27 Defence Act. There is also no ability to unilaterally resign, with service being for a continuous period. Therefore, every ADF Member who volunteers and is accepted for service in the ADF: s 22(1) Defence Act, regardless of the rank they acquire and whether they fall within the definition of ‘officer’ for the purposes of s 4 of the Defence Act, is an officer of the Commonwealth.

48 As explained above, the nature of claims which may be the subject of Pt IVA proceedings is vast and diverse. Given the nature of their service, an ADF Member may be subject to the kind of legislative and other restraints Parliament identified as the rationale for requiring consent to be a group member.

49 I am satisfied that all ADF Members, being both enlisted and commissioned officers, are officers of the Commonwealth within s 33E(2)(d). That being so, it is necessary to address the second issue, capacity.

In their capacity as an officer of the Commonwealth

50 As explained above, this limb of s 33E(2) has a qualification. The exception in s 33E(2)(d) will only apply if the person is a group member in “his or her capacity” as an “officer of the Commonwealth”. This limits the scope of the application of s 33E(2)(d). It recognises the potential breadth of persons who may fall within the description of an officer of the Commonwealth but, consistent with the rationale behind the exceptions, that it should only apply if it is necessary. The qualification is a fact dependent inquiry, relevantly including the nature of the representative claim.

51 It is appropriate at the outset to return to further consider CPSU, as it addressed this aspect of s 33E(2)(d). It will be recalled that CPSU was a Pt IVA representative proceeding brought on behalf of the Deputy Registrars of the Family Court of Australia, alleging contraventions of industrial laws by the Commonwealth. The Family Court determined to restructure the position of Deputy Registrar by creating new Deputy Registrar positions. The existing Deputy Registrars were advised that, if they were unsuccessful in obtaining one of these new positions, they would be removed from their current roles. The applicants made two claims. First, that the Family Court was intending to restructure the Registrar positions in breach of its statutory duty under the Public Service Act, by removing Deputy Registrars from their positions and making them reapply for the new positions without affording them the protections under the Public Service Act regarding the removal of office holders. Second, that the Deputy Registrars were being required to enter Australian Workplace Agreements as a condition of being appointed to the newly restructured positions. Inter alia, the Commonwealth also brought a motion seeking the claim no longer continue as a representative complaint under Pt IVA because, pursuant to s 33E(2)(d), the proceeding could not continue without the group members’ written consent. The reasons reflect that the representative claim stated in its application that, “[t]he group members to whom this proceeding relates are the Deputy Registrars of the Family Court of Australia”.

52 As earlier explained, the parties in CPSU agreed that Deputy Registrars of the Family Court are officers of the Commonwealth within s 33E(2)(d). The issue was whether the Deputy Registrars were group members in their capacity as officers of the Commonwealth. The applicants in that case submitted the Deputy Registrars had been joined in their “individual” (as opposed to “public”) capacities to the representative proceedings: at [62]. It is appropriate to recite the entirety of Marshall J’s consideration of this issue. His Honour observed at [61] – [64]:

[61]    What is in dispute is the issue as to which Deputy Registrars are members of "the group" for purposes of this proceeding in their capacities as such officers.

[62]    Mr Bromberg submitted that s 33E(2)(d) of the FC Act does not affect claims by such officers in their "individual" as distinct from "public" capacity.

[63]    In support of that submission Mr Bromberg referred to the relevant portion of the Explanatory Memorandum which accompanied the Federal Court of Australia Amendment Bill 1991 (Cth). It provides as follows:

"14.    This section provides that the consent of a person to be a group member is not required unless that person is the Commonwealth, a State or Territory or a Minister, officer or certain agencies of the Commonwealth, a State or Territory. The activities of Governments, government agencies, Ministers and officials may be subject to legislative and other restraints which make inappropriate the inclusion of such persons in a representative proceeding without consent."

[64]    The Explanatory Memorandum identifies a reason as to why the Federal Government felt it necessary to introduce the provision. It does not purport to provide the only reason for such inclusion. Whether an officer of the Commonwealth is a member of a group in a representative proceeding in her or his capacity as such or in some other capacity will always be a question of fact to be determined in every case.

53 Marshall J concluded at [65] – [66]:

[65]    In this matter the members of the group are defined by reference to the fact that they hold office as Deputy Registrars. This is not a case where a Deputy Registrar is pursuing some individual right divorced from the holding of her or his office, for example a consumer-related complaint.

[66]    The Court is of the view that the members of the representative group in this proceeding are members in their capacity as officers of the Commonwealth. Consequently written consent of those of them who are not named as second applicants is required for the proceeding to continue to be a representative proceeding. If such written consents are forthcoming the size of the group will be commensurate with the number of such persons who give that consent together with the named second applicants

54 In these proceedings, the position of the parties can be simply stated. The applicants submitted the test to be applied is whether the claim is “divorced from” the officer’s capacity as an officer of the Commonwealth. That is, whether the rights asserted exist independently of the official position, or arise from and are defined by it. The applicants submitted this is congruent with the rationale of s 33E(2)(d) as supported by the Explanatory Memorandum. Where the rights asserted are wholly independent of any official obligation and duty an officer of the Commonwealth may have, the rationale for the exception is absent and the provision no longer applies. The Commonwealth submitted, relying on CPSU at [65], that the group members are expressly identified at ASOC [15.1] by reference to the fact they are “ADF Members within the meaning of section 4 of the Defence Act”. It was said that is comfortably sufficient to conclude that the group members “are defined by reference to the fact that they hold office” as ADF Members and therefore are group members in their capacity as ADF Members for the purposes of s 33E(2)(d). The Commonwealth submitted that:

In sum, a person’s status as an ADF Member (and therefore an officer of the Commonwealth) is expressly made a necessary condition to group membership. The allegations in the ASOC are expressly limited to alleged treatment in connection with the performance of group members’ duties as ADF Members.

55 A number of observations may be made.

56 First, I do not consider Marshall J’s conclusion in CPSU - that group membership being defined by reference to holding an office was sufficient to determine they were group members in their capacity as officers for the purposes of the Bankruptcy Act - is by itself necessarily sufficient in this case. His Honour’s conclusion must be understood in its context. As described above, the nature of the claims in CPSU related to the existence of the Deputy Registrars’ positions, their effective termination, and the conditions imposed by the Family Court on their employment in the newly created positions. The claims are substantially different to those in this proceeding. Further, the only information provided in the reasons as to the description of group members is that they were defined as “the Deputy Registrars of the Family Court of Australia”. It was in that context that Marshall J observed that “the members of the group are defined by reference to the fact that they hold office as Deputy Registrars. This is not a case where a Deputy Registrar is pursuing some individual right divorced from the holding of her or his office, for example a consumer-related complaint”: at [65]. The analysis is not as simple as the Commonwealth contends. Each case must turn on its own facts.

57 Second, the prohibitions in the SD Act pleaded in the ASOC apply to the ADF, as they do to any other workplace. Members of the ADF are expressly defined in the SD Act as Commonwealth employees, with the Commonwealth deemed to be their employer for the purposes of the SD Act: ss 4 and 108. This is to be contrasted with other statutes. As explained above, ADF Members fall outside the ambit of the Public Service Act, which governs APS employees and, unlike APS employees, ADF Members are excluded from the FW Act. As the legislature has chosen to exclude ADF Members from their application, it may be inferred that legislation is, to some extent, inconsistent with the structure, conditions, and duties to which an ADF Member is subject. The implication is that the sex discrimination laws contained in the SD Act are not.

58 Third, as already explained, it is accepted between the parties that this issue is not relevant to women who are no longer ADF Members, as s 33E(2) does not apply to them. However, as readily apparent from the pleadings, former ADF Members can fall within the description of a group member. It cannot sensibly be said that former ADF Members are group members in their capacity as ADF Members. They are acting in a private capacity. Their rights to bring or participate in the action are individual ones. They hold those rights irrespective of the fact they are no longer ADF Members. They are former employees alleging they were the subject of unlawful sex discrimination in their workplace, for which their employer, the Commonwealth, is responsible. They are women who have been the subject of the identified forms of unlawful discrimination in ASOC [15.2] and [15.3]. It is difficult to understand why that reasoning is not equally applicable to current ADF Members, who are current employees of the Commonwealth. As the applicants submit, the source of the right, the nature of the conduct alleged, and the capacity in which each group member participates are identical.

59 This also reflects the foundation of the Commonwealth’s submission on this limb, recited at [54] above, that “a person’s status as an ADF Member (and therefore an officer of the Commonwealth) is expressly made a necessary condition to group membership”, is based on an erroneous factual premise.

60 Fourth, the Commonwealth’s submission conflates a person’s status as an ADF Member and being a group member in these proceedings in that capacity. It does not address the nature of the claims, which relate to unlawful sex discrimination. Being an ADF Member does not bring a person within the group definition. Not all ADF Members fall within the definition of group members. Rather, it is women who have, in connection with their work, at their workplaces, been unlawfully discriminated against in the manner identified, and who suffered loss or damage by reason of the conduct. This definition is to be contrasted with that in CPSU described above. Although, as the Commonwealth submitted, the ADF is the applicants’ workplace, it does not necessarily follow that current ADF Members are group members in their capacity as officers of the Commonwealth. Current ADF Members are not group members in this proceeding acting in their role as ADF Members, nor as part of their function or duties as ADF Members. As explained above, persons who are not ADF Members fall within the description of a group member, if the characteristics in ASOC [15.2]-[15.3] exist. The ADF was also the workplace of former ADF Members, yet they are group members in their private capacity, as former employees.

61 Finally, there is no readily apparent potential for a conflict, as described in the explanatory memorandum, between one’s position as an ADF Member and being a group member in this class action, given the basis of the claims. Although the Commonwealth gave examples of ADF Members’ duties in its submissions in support of ADF Members being officers of the Commonwealth, no example was provided relevant to the subject of this class action, being claims of unlawful discrimination contrary to the SD Act. This is in a context where the applicants submitted that the Commonwealth had not pointed to any conflict between being a group member in these proceedings and being a member of the ADF. Although the Commonwealth accepted they had not done so, they submitted that was because the section does not require them to do so. But the section does require an assessment as to the capacity in which members are participating in this proceeding. That there is no apparent potential for conflict supports the nature of the right being an individual one being exercised by group members in their private capacity. It may assist in informing whether a person is a group member in her capacity as an officer of the Commonwealth. I note also, as submitted by the applicants, the ADF website informs members that “no adverse consequences [will result] for current or former ADF members…arising from their decision to participate” in the class action. That lends support to the conclusion there is no legislative or other restraint in issue given the subject matter of the proceeding. This suggests that being a group member in this case is not inconsistent with one’s position as an ADF Member and the discharge of their duties.

62 I do not accept the Commonwealth’s submission that ADF Members who fall within the description of being a group member are so in their capacity as officers of the Commonwealth.

63 Accordingly, current ADF Members do not fall within the exception in s 33E(2)(d). The default opt out procedure under Pt IVA applies to them.

Section 33C(1) of the FCA Act

64 The Commonwealth submitted that two of the gateway requirements in s 33C(1) of the FCA Act, being the claims are in respect of, or arise out of, the same, similar or related circumstances: s 33C(1)(b), and the claims give rise to a substantial common issue of law or fact: s 33C(1)(c), are not established. Before addressing the submissions, it is helpful to address the legal principles as to assessing whether s 33C(1) is satisfied.

Legal principles

65 The principal object of Pt IVA is enhancing group members’ access to justice: Brewster at [110]. The provisions of Pt IVA are to be broadly construed, consistent with their evident beneficial purpose facilitating the efficient resolution of representative proceedings: Cannan v Dollarama Australia Pty Ltd [2026] FCAFC 41; (2026) 316 FCR 114 (Cannan) at [101], citing Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 (Dyczynski) at [165].

66 Section 33C is a gateway provision concerned only with the commencement of proceedings. It is for the applicants to show they have satisfied the requirements of both ss 33C(1)(b) and (c) (s 33C(1)(a) not being in issue in this proceeding): Jenkings v Northern Territory [2017] FCA 1263 (Jenkings) at [16], citing Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487 (Philip Morris) at [138]. The assessment of the matters arising under s 33C is on the basis of the application and the pleadings: see Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 (Bright) at [126]; Bywater v Appco Group Australia Pty Ltd [2018] FCA 707 (Bywater) at [11]; and s 33H of the FCA.

67 The gateway is “deliberately undemanding”: Dyczynski at [163]-[164], [331]; ISG Management Pty Ltd v Mutch [2020] FCAFC 213; (2020) 385 ALR 146 (Mutch) at [12].

68 The reference to “claim” in s 33C(1) is not to the cause of action pleaded. Rather, it is to be given a wide meaning: Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150 (Dillon) at [43]-[44].

69 Section 33C(1)(b) does not require the claims themselves to be the same, similar or related, only for the circumstances from which they arise or which they concern to have that character: Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580 (Uber) at [79(2)]; Jenkings at [44]; Agnello v Heritage Care Pty Ltd [2021] VSC 838 (Agnello) at [44]. The word ‘related’ suggests a connection wider than identity or similarity: Zhang de Yong v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 715; (1993) 45 FCR 384 (Zhang) at [39].

70 In each case there is a threshold judgment as to whether the similarities or relationships between the circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding: Zhang at [39]. That a proceeding concerns separate acts or omissions of a respondent done or omitted to be done in relation to individual group members is not disqualifying: s 33C(2). Although the assessment is looking at points of similarity or relatedness in determining whether claims satisfy the description, it is appropriate to have regard to their differences as well as their similarities, and to the complexity of the claims: Jenkings at [43], [45]; Guglielmin v Trescowthick (No 2) [2005] FCA 138; (2005) 220 ALR 515 (Guglielmin) at [47].

71 Section 33C(1)(c) requires at least one substantial common issue of law or fact. “Substantial” means “real or of substance”, not “large” or “of special significance”: Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 (Wong) at [28]. A single common issue suffices. It is not necessary to show that resolution of the common issue would resolve the claims of all group members wholly or to any significant degree: Wong at [30]. It follows the existence of non-common issues does not preclude the satisfaction of the threshold in s 33C(1)(c). Whether the issues remain at the close of pleadings, and whether evidence which will be led in each case might differ in some respects are not matters which are relevant to a determination as to whether there is a common question and whether s 33C(1) is satisfied: Bright at [126].

72 In summary, to satisfy the threshold, the claims are only required to be in respect of, or arise out of, similar or related circumstances and give rise to one substantial common issue of law or fact: Dillon at [44]. As Gordon J observed in Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 at [107], the conditions in s 33C(1) are “not only the minimum requirements but also the outer limit of the connection between the group members”.

Submissions

73 The Commonwealth’s submission, at its essence, is based on the “individual fact-driven nature” of the various claims. It submitted that unlawful conduct and its consequences are alleged to have: (a) taken place at various points in time during a lengthy claim period spanning between 13 November 2003 and 25 May 2025; (b) occurred in vastly different locations, both throughout Australia and overseas; (c) involved several different individual alleged perpetrators, without any coordination or linkage between them beyond their status as ADF Members; and (d) taken place across the three separate service branches of the ADF, being the Navy, Army and Air Force. The Commonwealth submitted that as the “alleged linkages between the claims arise only at the highest of levels…it is evident that the group members are connected by their status as female ADF Members during some point in the claim period, who allege they have been subjected to one or more of the forms of unlawful conduct identified at ASOC [15.2]”.

74 The Commonwealth identified the elements of each of the claims under the SD Act, being sexual harassment (ss 28A and 28B), harassment on the basis of sex (ss 28AA and 28B), sex discrimination (ss 5 and 14), victimisation (s 47A), and the basis of liability in respect to each (e.g. direct in s 14, or derivative under ss 105 or 106). It is unnecessary for present purposes to recite the detail of those differences. The Commonwealth also submitted there were some legislative changes during the relevant period, which are also unnecessary to recite.

75 In respect to sexual harassment, the Commonwealth submitted “the statutory definition of sexual harassment is quintessentially directed towards one or more specific interactions between specific individuals” such that “[t]here could never be a finding of sexual harassment…without specific findings as to what occurred between the individuals and their respective knowledge and states of mind, in all of the relevant surrounding circumstances between them”. It was submitted it is:

…difficult to see how determination of the lead applicants’ sexual harassment claims could have a material bearing on whether the claims of unidentified group members would be made out. These claims, like those in Philip Morris (at [166]), involve or arise out of circumstances that “are so disparate and involve such varied conduct … that they cannot be said to arise out of related circumstances” for the purposes of s 33C(1)(b). In reality, the sole matter linking the claims together is that they are brought by ADF Members based on alleged primary wrongdoing by other ADF Members. The respondent submits that this superficial linkage is insufficient to sustain the necessary connection between the claims of sexual harassment, in circumstances where the substance of the alleged facts and circumstances said to give rise to the claims are so intrinsically tied to the individuals involved.

76 The Commonwealth adopted the same type of submission in respect to the remaining claims:

…all of the points above in respect of the harassment claims apply with force to these sex discrimination claims. The exception is that the discrimination claims, unlike the harassment claims, do not import a subjective element on the part of the applicant. But this difference does not detract from the fundamentally individualistic nature of these claims as pleaded by the applicants. They still involve interactions between individual alleged perpetrators and individual applicants, with the claims turning entirely upon the particular circumstances experienced by each applicant. …

77 Essentially the same reasons were given in relation to the victimisation claims.

78 It was submitted it was difficult to see how the lead applicants’ sexual harassment claims (but for the superficial linkage of the lead applicants being ADF Members who experienced wrongdoing at the hands of other ADF Members) could have a bearing on the group claims.

79 The Commonwealth also submitted this case resembles the circumstances in Philip Morris, where it was found that s 33C(1) was not satisfied.

80 Conversely, the applicants submitted that s 33C(1) was established. They submitted the common circumstances are, as identified in the ASOC, as follows:

(1) All group members are women;

(2) All were members of the ADF during the claim period and were, by operation of ss 4(1) and 108 of the SD Act, deemed employees of the Commonwealth;

(3) The Commonwealth was at all times the single deemed employer. There is no contest about employment or agency status of the kind that arises in proceedings against a corporate group with subsidiaries and contractors;

(4) All group members were subject to a unified statutory chain of command flowing from individual members through commanding officers to the Chief of the Defence Force to the Minister;

(5) All were subject to the same disciplinary system under the Discipline Act; and

(6) The SD Act applied to all conduct by all ADF Members throughout the claim period.

81 The ASOC gives that framework further specific content. At [25.4], the ASOC particularises ADF-wide instruments governing unacceptable behaviour that applied across all three service branches throughout the claim period: Equity and Diversity in the ADF (DI(G) PERS 50-1, 2001), Department of Defence, Management and Reporting Unacceptable Behaviour in the ADF DI(G) PERS 35-3, 2004, and Military Personnel Policy Manual (2013 and 2017). The applicants submitted that what is significant is not merely that these instruments existed but that they persisted, in successive iterations, across the entirety of the claim period. The ADF’s institutional response to the risk of sexual harassment and sex discrimination – whatever its adequacy – was a continuous and uniform response, directed at all ADF Members in all service branches. It is the adequacy of that response, and the Commonwealth’s knowledge of the risk, that the ASOC puts in issue at [32]-[39]. Those paragraphs concern the Commonwealth’s conduct as the single deemed employer, which is common to every group member’s claim.

82 The applicants submitted that the originating application specifies the questions of law or fact said to be common to the claims of group members at [12], in compliance with s 33H(1)(c) of the FCA Act. Those questions address workplace culture, the Commonwealth’s knowledge, the definitional framework under the three legislative periods, ss 105 and 106(2) liability, exemplary and vindicatory damages, the methodology for assessing damages, and extraterritoriality.

83 The applicants submitted this is a systems case, with ss 105 and 106 of the SD Act forming part of the statutory foundation (s 105 providing for direct attribution), which was addressed in its complaint to the AHRC. The notion of "permitting" contained within s 105 is not to be approached narrowly: Elliot v Nanda [2001] FCA 418; (2001) 111 FCR 240 (Elliot) at [160]. Moore J provided the example in Elliot of an employment agency placing an employee with an employer and knowing or having reasonable grounds to believe that there was a material chance the employee would be at risk of being discriminated against on the grounds of sex. At [163] his Honour observed:

Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue. In my opinion, a person can, for the purposes of s 105, permit another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permittor knowingly places the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct will occur. That is certainly so in circumstances where the permittor can require the person to put in place measures designed to influence, if not control, the person's conduct or the conduct of that person's employees.

Consideration

84 There are three preliminary observations to be made.

85 First, the Commonwealth took some time critiquing the ASOC and originating application in a manner which, in some respects, did not appear to relate to either of the two bases the subject of the strike out application. I am mindful of the distinction recognised by Lee J in Cannan between a failure to satisfy the threshold requirements specified in s 33C(1) and inadequacies in the pleadings that do not go to the constitution of the proceeding as a representative action: see Cannan at [27]-[34]. It is the first type that is the subject of this aspect of the interlocutory application.

86 That said, as recognised by Lee J in Cannan at [30], where deficiencies in pleadings are capable of cure, leave to replead will ordinarily be granted. Information asymmetry is a recognised feature of many Pt IVA proceedings and may properly be considered in assessing the adequacy of pleadings, including where multiple versions of a pleading have been developed over time. It is commonplace that amended pleadings are often filed in complex class actions: Cannan at [31], citing Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 at [158].

87 Further, as to the criticisms of the ASOC, I note the observations of Lee J in Dillon at [48]:

It is often said that a role of a statement of claim in a Part IVA proceeding is to demonstrate that the s 33C ‘gateway’ has been passed through by specifying the matters required by s 33H, and that this necessitates ‘pleading’ group members’ claims at a level of generality sufficient to show compliance: see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487 at 514-515 [128] per Sackville J.

88 And see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 201 at [5].

89 Second, the Commonwealth’s submission that the applicants changed their case in this Court to a systems case which had not previously been pleaded is not borne out by a proper consideration of the complaint before the AHRC or the ASOC. The AHRC recognised the systems characterisation of the complaint in fulfilling its task in respect to this complaint, stating:

I am also satisfied, for the purposes of exercising the Commission’s inquiry and conciliation function, that the allegations are likely to give rise to substantial common issues of law or fact, including in relation to the Respondent’s practices and procedures on preventing or permitting sex discrimination, sexual harassment, harassment on the grounds of sex and victimisation under the SDA.

90 There has been no change. As discussed below, the ASOC puts squarely in issue the adequacy of the ADF’s institutional response to the risk of sexual harassment and sex discrimination, and the Commonwealth’s knowledge, as the single common employer, of that risk.

91 Further, the formulation and determination of common questions based on a pleaded system of conduct is well-established in representative proceedings: McDonald v Australian Life Insurance Distribution Pty Ltd [2025] FCA 678 at [43]; and see e.g. Bywater; Nguyen v Rickhuss [2023] NSWCA 249.

92 Third, in respect to this application (and in relation to s 46PO of the AHRC Act addressed below), the Commonwealth submitted it would not oppose leave to replead being given to the applicants. However, as the applicants submitted, the Commonwealth’s position is that the flaws identified in the applicants’ case are incurable. The concession rather belies the Commonwealth’s position. That is, the consequence of the Commonwealth’s submission is that the proceeding cannot proceed as a class action.

93 It is helpful at this stage to consider some of the authorities referred to by the parties.

94 Each party referred to several authorities, and I have considered each, although it is unnecessary to address each in these reasons. The applicants referred in particular to Jenkings, and the Commonwealth to Philip Morris. Each called those authorities in aid of their submission as to whether s 33C(1)(b) is satisfied. Given the focus on those authorities, I propose to briefly address each in turn. I will also refer to Zhang, which involved the first substantial judicial consideration of s 33C(1)(b). I have already summarised above the principles to be taken from the authorities, and they are unnecessary to repeat. These cases were highlighted as examples of cases said to be factually similar (or dissimilar) to the present proceeding. It is not, however, an issue of comparing cases, but whether the requirements in s 33C(1), on the pleadings in this case, are satisfied. While the cases referred to provide guidance as to the application of the principles in s 33C(1), they are just that: guidance.

95 The cases do reflect, however, consistent with the text of s 33C(1), that factually diverse claims can nonetheless satisfy the threshold and that the focus is on the related circumstances and common issues. Indeed, the terms of Pt IVA contemplate or anticipate that differences may exist between group members.

96 Commencing with Zhang, the first in point of time. Mr Zhang’s application for refugee status was refused. He filed a Pt IVA representative proceeding against the Minister of Immigration, Local Government and Ethnic Affairs, contending his action related to all those who had been refused refugee status since 4 March 1992, and who had a subsequent review of their refugee application refused by the Refugee Status Review Committee on or before 30 June 1993. French J (as his Honour then was) observed the statutory criteria in s 33C(1)(b) contemplates a “relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit”: at 404. His Honour observed, referring to s 33C(2), that the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent, or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members: at 404. His Honour then explained at 404-405:

The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word “related” suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

97 His Honour found the related circumstances requirement was satisfied where the proceeding was brought on behalf of hundreds of refugees, processed by different officers, at different times, under varying procedures, connected by the single common thread of the Minister’s policy: at 405-6.

98 In Jenkings, two detainees commenced a representative proceeding on behalf of all persons detained in Northern Territory youth detention centres, each of whom alleged assault, battery, false imprisonment, or other adverse action by officers or staff. Group members had been detained across five separate detention centres during a claim period of over 10 years. The officers involved numbered at least 175. The conduct alleged was diverse in terms of the excessive or unlawful use of force, restraint, search, isolation, and the deprivation of food and clothing. The legislation had been amended twice during the claim period, and individual centres had their own rules. The applicants also pleaded racial discrimination under the Racial Discrimination Act 1975 (Cth).

99 White J described the respondent’s submission in that case at [38] as follows:

In short, the Territory submitted that the claim of each Group Member will turn on its own particular facts and circumstances and that the circumstances of the claim of one Group Member need not have any relationship with the circumstances of the claim of another, unless assessed at a high level of abstraction.

100 His Honour referred at [39] to the observations of French J in Zhang, recited above. His Honour observed that the purpose of the legislation French J referred to in that passage is the provision of “an efficient and effective procedure to do with multiple claims”, citing the Minister’s Second Reading Speech to which the High Court referred in Wong at [20]: Jenkings at [40].

101 White J observed at [41] that the observations of Mansfield J in Guglielmin at [48] are “pertinent presently”:

In any representative proceeding there may well be differences between the positions of the various group members in respect of their claims against the respondents. That is likely to be the case whenever a complex representative action is instituted, that is a representative action involving a course of conduct rather than one transaction or piece of conduct or a representative action involving a large number of respondents. With an active mind, one could find a plethora of differences in any such representative proceeding. It is the nature of such proceedings that there are differences between the positions of the parties. That is why there is needed a relatedness of circumstances, rather than exactly the same circumstances, in the claims of the group members. Representative proceedings are not intended only to be available in the more straightforward of circumstances where the conduct of one respondent on one occasion is alleged to have resulted in loss to a number of persons.

(emphasis in original)

102 White J was satisfied that there was the requisite degree of connectedness, including for the reasons identified at [45]:

(a)    all Group Members were youths who had been detained in youth detention centres in the Territory;

(b)    common legislative and regulatory provisions applied to the youth detention centres and to the conduct of officers and staff members in those centres. The fact that the relevant provisions of the [Youth Justice] Act had been amended with effect from 9 September 2014 and again from 1 August 2016 and that some detention centres had their own rules does not alter this circumstance because it seems that there is an underlying core of common regulatory provisions;

(c)    the conduct said to constitute the false imprisonment, assault or battery and other forms of adverse action are said to be incidents in a form of systemic conduct by officers or staff members;

(d)    the conduct is said to constitute a form of racial discrimination.

103 White J concluded at [46]:

In short, I am not satisfied that the potential for there to be significant differences between the claims of individual Group Members has the consequence that they cannot be regarded as being in respect of, or arising out of, related circumstances.

104 The Commonwealth submitted there are limits to the usefulness of Jenkings as a guide in this case. It submitted the claims in that case arose within discrete, geographically limited youth detention centres in a single jurisdiction, and were subject to a unified regulatory framework under the Youth Justice Act 2005 (NT). It submitted the types of wrongdoing alleged were comparatively homogeneous. By contrast, and as set out at [73] above, this proceeding concerns diverse alleged conduct occurring across three separate service branches of the ADF (Navy, Army and Air Force), in different States and Territories throughout Australia and overseas, educational and leisure locations (including, for example, Naval bases, Air Force bases, ships, offices, educational facilities, ADF housing and recreation areas on base as well as locations attended for recreation purposes), over a lengthy period of more than twenty years examined by reference to an evolving legislative framework. The Commonwealth also noted the causes of action relied upon in this case are more individualistic than those in Jenkings.

105 By contrast, the applicants submitted Jenkings was an apt comparator to these proceedings. I agree with the applicants that the geographic and structural differences the Commonwealth points to (e.g. three service branches, multiple jurisdictions, overseas locations, over a period of more than twenty years) are differences of degree, not kind, from those his Honour considered and rejected. Although the Commonwealth submitted White J had struck out the racial discrimination claim, he did so on the basis the pleading was inadequately particularised. Relevantly, one of the related circumstances found by White J was that “the conduct [was] said to constitute a form of racial discrimination”: at [45(d)]. His Honour also left open whether those claims gave rise to substantial common questions: at [77], [88], [129]-[130].

106 The Commonwealth submitted this case is akin to or resembles Philip Morris: see submission recited above at [75] and [79].

107 In Philip Morris, the applicants alleged group members contracted a smoking related disease in consequence of being influenced by the respondents’ conduct to begin or continue smoking the respondents’ cigarettes. There was a claim that the respondents embarked individually and collectively on a course of conduct designed to create a false community perception about the risks associated with smoking. The Full Court (Sackville, Spender and Hill JJ agreeing) held the claim did not satisfy the threshold requirement in s 33C(1)(b). The Court concluded the pleading was flawed in a number of ways, including that the applicants did not plead a case based on the collective conduct of all three respondents. That is, “[w]hat is alleged, in essence, is that each of the respondents, over a period of 25 years or more, engaged separately in misleading or deceptive conduct. Each group member is said to have been influenced to smoke, continue smoking or fail to quit smoking by the conduct of one or other of the respondents”: at [155]. The Court concluded that this does not constitute the pleading of a claim by all applicants and group members against all respondents, as s 33C(1)(a) requires. As to s 33C(1)(b), Sackville J described the various permutations of how the respondents’ conduct may have been said to have influenced the applicants, and observed that “[t]he possible combinations of factual circumstances are virtually limitless”: at [149]. His Honour observed that in finding that s 33C(1)(b) was satisfied, the primary judge had erred by “overlook[ing] the range and scope of the allegations”, which “concern diverse conduct over a period of nearly 40 years”: at [164]. He concluded at [166], that:

…the applicants’ pleaded case included a claim that the respondents engaged in a collective course of conduct designed to mislead or deceive consumers. Once it is accepted that the case is founded on the separate conduct of each set of respondents, the difficulty in concluding that s 33C(1)(b) is satisfied becomes apparent. The circumstances of each of the thousands of claims pleaded in the statement of claim are so disparate and involve such varied conduct on the part of the several respondents that they cannot be said to arise out of related circumstances.

108 The Commonwealth submitted Sackville J’s observations apply with force in the present case.

109 The Commonwealth also relied on Spender J at [8] to submit that the fact of multiple respondents was not essential to the conclusion that the primary judge had erred in finding s 33C(1)(b) was satisfied:

Multiple respondents seriously compound the difficulties, but even in a case without that complication (of which this is not one), in my view the proceeding would not satisfy the requirement of s 33C(1) of the Act. To take an hypothetical example [sic]: suppose one company, Widget Retailing Ltd (Widget) had distributed its goods by road throughout Australia over four decades. Suppose further that various individual members of the public were injured by the negligent driving of different employees of Widget, as follows: A in Melbourne in 1960; B in Townsville in 1974; C in Sydney in 1984; and … Z in Perth in 1996. Claims for damages by each injured individual against Widget, in my opinion, would not properly be described as claims arising out of the same, similar or related circumstances. This is so, even if it be the position that on each occasion the negligence consisted of, say, driving at an excessive speed. In my opinion, a representative proceeding against Widget could not properly be brought under Pt IVA of the Act, on those assumed facts. The ALRC reports (which led to the introduction of Pt IVA) do not suggest that it was intended that such disparate claims could properly be brought in representative proceedings.

110 As can be seen from the brief summary of this decision, Sackville J placed importance in his construction of s 33C(1) so as to require, where there is more than one respondent, every group member to have a claim against all respondents. That construction has since been held to be incorrect: Cash Converters International Limited v Gray [2014] FCAFC 111; (2014) 223 FCR 139 at [32]-[33]; and see Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153; (2003) 130 FCR 317 at [122], [248]. Therefore, care needs to be taken with this decision.

111 The applicants also submitted that Philip Morris is distinguishable:

Philip Morris involved multiple respondents, separate advertising and promotional conduct over four decades. There was no single unifying employer-employee relationship, as is the case here, with the Commonwealth as the sole respondent. The alleged wrong is not the separate conduct of multiple respondents but the Commonwealth’s failure to maintain adequate systems across its entire ADF workforce throughout the claim period. Spender J’s hypothetical in Philip Morris at [8] of individual negligent driving incidents by different employees of a single employer over forty years is also inapt: RS [68]. Random tortious acts by different employees in different places over decades share nothing beyond the identity of the employer. The common thread here is not merely the identity of the employer. It is the employer’s conduct in maintaining (or failing to maintain) a single system applicable to every group member.

112 I accept that submission.

113 As will be apparent from the discussion below, I do not consider this case resembles Philip Morris. Further, some of the arguments advanced by the Commonwealth bear a similarity to those in Jenkings.

114 Before leaving the authorities, I also note that Agnello, Meredith v State of New South Wales (No 5) [2025] NSWSC 1133 and Uber are other examples of claims which involved diversity between claimants, but nonetheless satisfied s 33C(1)(b).

115 As evident from the consideration of the authorities above, each case must turn on its own facts.

116 That said, it is plain that some of the Commonwealth’s submissions do not sit comfortably with these decisions, as the Commonwealth failed to properly grapple with the allegations in the ASOC in this case.

117 I consider the common circumstances identified by the applicants (recited above at [80]), read in the broader context of the ASOC, establish the claims are in respect of, or arise out of, the same, similar or related circumstances: s 33C(1)(b).

118 First, the Commonwealth’s challenge to both s 33C(1)(b) and (c) focussed on the individuality of the claims. In doing so the Commonwealth’s submission focussed on the claims themselves and their elements, not the circumstances to which s 33C(1)(b) is directed, thereby taking an unduly narrow approach to the section’s application. The Commonwealth also focussed on the differences between the claims of individual group members without appropriately addressing any issues of commonality. The Commonwealth referred to the linkages at a level which fails to grapple with the allegations pleaded. It may be accepted, as explained above, the Court may have regard to the differences and complexity of claims when considering this issue: Jenkings at [43]. But a submission which only focuses on the differences is directed to the wrong question.

119 The Commonwealth advanced its submission in chief on the basis that the only pleaded matter of commonality between the applicants is a common employer. In oral reply, the Commonwealth conceded three areas of commonality identified by the application, being “employer identity, shared statutory coverage and shared disciplinary structure”. It was said these attributes are a common feature of nearly all employment and that, if found to be sufficient, nearly every employer “would be amenable to a class action in respect of every complaint of individual wrongdoing by any employee against any other”. Neither submissions in chief nor in reply accurately responds to the case advanced by the applicants. The Commonwealth failed to acknowledge or deal with inter alia, the nature of the ADF, the statutory chain of command, and the significance of workplace culture to the claim. It also did not recognise service in the military, and that the ADF is not simply any other employer, as discussed above in considering s 33E. Further, in so far as the Commonwealth submitted what is in effect a floodgates argument (i.e. every employer would be open to a class action), the submission is unhelpful as it fails to address the gateway issue in this particular case.

120 Second, Pt IVA anticipates that individuals in the group will have differing circumstances: Marks v GIO Aust Holdings Ltd (1996) 63 FCR 304 at 319. Section 33C(2) indicates that claims may be in respect of the same, similar or related circumstances even if concerned with separate contracts or transactions or involve separate acts or omissions. Pt IVA provides a procedure which deals with how remaining unresolved issues of individual group members may be addressed: see ss 33Q-33R.

121 Third, a class action of this nature does not necessarily resolve every issue of the individual group members, but the common questions that arise in the claims. This assessment is about whether the claims “are in respect of, or arise out of, the same, similar or related circumstances”, not whether a particular person’s claim will be made out, or whether there are other elements of individual group members’ claims that may need to be established. It requires only one substantial common issue of law or fact. It follows that potential differences between the individual claims and their complexity does not of itself indicate that they may not satisfy the criteria in s 33C(1)(b). I do not consider the differences in this case, or the individual nature of claims between group members, detracts from the conclusion as to their relatedness.

122 I am also satisfied the claims, as reflected in the ASOC, and the questions identified in the originating application as required by s 33H, give rise to a substantial common issue of law or fact: s 33C(1)(c).

123 It may be accepted that the questions as formulated in the originating application (of which there are currently ten) will be refined, with the ultimate questions being determined after the close of evidence. I address two topics of questions pleaded in the originating application that have obvious common application. That is not to suggest they are the only common questions, but rather they are sufficient to illustrate the conclusion.

124 In the originating application, the questions relating to the liability of the Commonwealth are currently posed at [12] as:

…

(e)    Did the Commonwealth, by reason of the matters pleaded in Sections C and D of the SOC (including Workplace Culture, the ADF Disciplinary Framework, and the Commonwealth’s Knowledge), “permit” ADF members to engage in acts amounting to unlawful discrimination within the meaning of s 105 of the SD Act during the Claim Period (or any sub-period of it)?

(f)    On the assumption that the Respondent advances a defence under s 106(2) of the SD Act, did the Commonwealth, during the Claim Period (or any sub-period of it), take “all reasonable steps” to prevent ADF members engaging in acts amounting to unlawful discrimination?

…

125 However these questions may be framed in their final form, the application of ss 105 and 106 of the SD Act is a common issue.

126 So too, the question relating to the Commonwealth’s knowledge as currently drafted:

…

(c)    Did the Respondent have the Commonwealth’s Knowledge as pleaded in paragraph 39 of the SOC in the Claim Period?

…

127 Paragraph [39] of the ASOC is as follows:

During the Claim Period, the Commonwealth knew that there was a real and more than a remote possibility that women, including the Applicants and/or Group Members, during their service with the ADF would be exposed to or otherwise subjected to unwelcome sexual advances, requests for sexual favours, conduct of a sexual nature, and/or sex discrimination and victimisation as a result of making complaints about such conduct by other ADF Members (Commonwealth’s Knowledge).

128 This paragraph also contains lengthy particulars unnecessary to repeat for present purposes.

129 The Commonwealth’s submissions in respect to the common questions were limited. It was to the effect that, while there may be abstract legal questions capable of common formulation, those questions cannot be answered without engagement with the particular facts and circumstances of each individual claim. As the case is pleaded, I do not agree. Given the basis on which liability is sought to be attributed to the Commonwealth, the answers to those questions, by reference to the lead applicants, will address issues that will arise in determining the claims of individual class members.

130 Accordingly, as the Commonwealth conceded s 33C(1)(a) is satisfied, and as I am also persuaded that ss (b) and (c) are satisfied, the applicants have established the gateway requirements for the Pt IVA proceeding.

Section 46PO AHRC Act

131 In the alternative, the Commonwealth submitted this Court does not have jurisdiction over aspects of the allegations advanced in the ASOC by reason of the contended operation of s 46PO(3) of the AHRC Act which, it submitted, is central to the Court’s authority to conduct these proceedings. There are two aspects to this application: first, the Court does not have jurisdiction in respect to the representative aspect of the claim (the standing objection); and second, some parts of the individual applicants’ claims in the ASOC do not satisfy s 46PO(3).

132 Put succinctly, the Commonwealth submitted some allegations of unlawful discrimination as pleaded by the applicants in the ASOC are not “the same as (or the same in substance as) the unlawful discrimination that was the subject” of the complaint originally before and terminated by the AHRC, such that they do not satisfy the jurisdictional requirement in s 46PO(3) of the AHRC Act. As explained above, the Commonwealth’s application seeks an order pursuant to r 16.21 of the Rules, and by reason of s 46PO(3) of the AHRC Act, that identified paragraphs of the ASOC be struck out. These paragraphs of the ASOC relate to all aspects that reflect the claims’ constitution as a class action, and specific aspects of the individual applicants’ claims.

133 The consequence of the Commonwealth’s submission, if accepted, is that this proceeding could not be pursued as a class action, but only advanced as discrete claims in respect to the four individual applicants.

Legal principles

134 Given the nature of the Commonwealth’s application, it is appropriate to refer to the legislative provisions highlighted in submissions, and to address the jurisdiction of this Court to determine claims arising under the AHRC Act.

135 The AHRC Act and the SD Act are beneficial and remedial pieces of legislation which should be given a “fair, large and liberal interpretation”: AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [24], citing IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12. As Gageler J described “[t]he principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”: NSW Aboriginal Land Council v Minister Administering the Crown Land Act [2016] HCA 50; (2016) 260 CLR 232 at [92], and see s 15AA, Acts Interpretation Act. That is, as with Pt IVA, these provisions are to be broadly construed, consistent with their evident beneficial purpose: the protection and enforcement of human rights.

136 The requirements to file a complaint with the AHRC are addressed in s 46P which is relevantly as follows:

46P Lodging a complaint

(1) A written complaint may be lodged with the Commission:

(a)    alleging:

(i)    that one or more acts have been done; or

(ii)    that one or more omissions or practices have occurred; and

(b)    alleging that those acts, omissions or practices are unlawful discrimination.

(Notes omitted)

(1A)    It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.

(1B)    The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices.

(2) The complaint may be lodged:

(a)    by a person aggrieved by the alleged acts, omissions or practices:

(i)    on that person’s own behalf; or

(ii)    on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or

(b)    by 2 or more persons aggrieved by the alleged acts, omissions or practices:

(i)    on their own behalf; or

(ii)    on behalf of themselves and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or

(c)    by a person or trade union on behalf of one or more other persons aggrieved by the alleged acts, omissions or practices.

(3) A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.

(4) If it appears to the Commission that:

(a)    a person wishes to make a complaint under subsection (1); and

(b)    the person requires assistance to formulate the complaint or to reduce it to writing;

the Commission must take reasonable steps to provide appropriate assistance to the person.

137 As can be seen, s 46P(2) permits the filing of a complaint by a person aggrieved on behalf of others who are also aggrieved by the alleged acts, omissions or practices (i.e., the filing of a representative complaint).

138 Section 46PB of the AHRC Act then sets out specific conditions for a representative complaint:

46PB Conditions for lodging a representative complaint

(1)    A representative complaint may be lodged under section 46P only if:

(a)    the class members have complaints against the same person; and

(b)    all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    all the complaints give rise to a substantial common issue of law or fact.

(2)    A representative complaint under section 46P must:

(a)    describe or otherwise identify the class members; and

(b)    specify the nature of the complaints made on behalf of the class members; and

(c)    specify the nature of the relief sought.

(3)    In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(4)    A representative complaint may be lodged without the consent of class members.

139 If a complaint satisfies the requirements of s 46P (and for a representative complaint, s 46PB), the AHRC must refer the complaint to the President of the AHRC: s 46PD. The President’s function is to consider if the complaint should be terminated or if an inquiry should proceed, including by attempting conciliation: s 46PF(1). Termination of the complaint is addressed in s 46PH. The President must terminate the complaint if satisfied it is “trivial, vexatious, misconceived or lacking in substance”: s 46PH(1B)(a), or there is “no reasonable prospect of the matter being settled by conciliation”: s 46PH(1B)(b), or “there would be no reasonable prospect that the Federal Court…would be satisfied that the alleged acts, omissions or practices are unlawful discrimination”: s 46PH(1C).

140 The jurisdiction of this Court derives from s 46PO of the AHRC Act, which provides:

46PO Application to court if complaint is terminated

Making an application

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(2A)    The application may be made:

(a)    by an affected person in relation to the terminated complaint:

(i)    on that person’s own behalf; or

(ii)    on behalf of that person and one or more other affected persons in relation to the terminated complaint; or

(b)    by 2 or more affected persons in relation to the terminated complaint:

(i)    on their own behalf; or

(ii)    on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or

(c)    by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.

Note: Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

Court orders

(4)    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)    an order requiring a respondent to employ or re-employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section in certain circumstances—see section 43 of the Federal Court of Australia Act 1976.

Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section in certain circumstances—see section 214 of the Federal Circuit and Family Court of Australia Act 2021.

(4A)    In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).

(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

141 As made clear from the terms of s 46PO(3A), the basis on which a complaint is terminated goes to the ability of an applicant to bring a proceeding in this Court without leave.

142 Section 46PO(3) operates as a constraint on the relief a complainant to the AHRC can later seek in this Court: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye) at [46]. The scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the complaint before the AHRC: s 46PO(3). In Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 (Grigor-Scott) the Full Court observed at [18]:

Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission.

143 And further at [19]:

The intention [of s 46PO] is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

144 The text in s 46PO(3)(a), “must be the same as (or the same in substance as)” and (b) “must arise out of the same (or substantially the same) acts, omissions or practices” that were the subject of the terminated complaint, suggests some degree of flexibility in the application of the section: Dye at [46]-[48]. It contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination: Dye at [46]. Different or additional facts may therefore be relied upon, provided they are not different in substance from those alleged in the terminated complaint, with complete symmetry not being required: Leach v Burston [2022] FCA 87 at [58]. For example, in Dye, an additional allegation of sexual assault was permitted to be relied upon because it was “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance”, and the complaint was understood to be alleging “instances of a pattern of behaviour” such that the scope of the complaint was “sufficiently wide” to prevent this aspect from being excluded from the pleading upon the ground in s 46PO(3): Dye at [44], [50]–[52]; and see Hanson v Burston [2022] FCA 1234 at [99(c)]; Gao v Macquarie Bank Ltd [2026] FCA 289 (Gao) at [36]-[37].

145 In Dye, the Court observed that a representative complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of a complaint. It recognised that it is the nature of representative proceedings that individual group members may only be informed of the existence of class proceedings well after their commencement. Their individual experiences may fall within a more general or inclusory description in a complaint to the AHRC, but a person entitled to seek relief as a group member under ss 46PO(4) and (5) of the AHRC Act cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge: Dye at [45].

146 Although Dye was itself not a representative complaint, the Court observed at [43] that:

in construing how far s 46PO(3) defines and limits a complaint it is important to bear in mind that s 46PO itself contemplates that a complaint, and proceedings based on it, can be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA of the Federal Court of Australia Act.

147 Recognising s 46PO(3) applies both to representative and individual complaints, account may be taken of the fact that the articulation of a representative complaint may be more generalised than in a case concerning only one or two individuals: Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [22].

148 As such, the terms of a complaint made to the AHRC should not be read with the same strictures as those that apply to a pleading in this Court: Dye at [46]-[48], citing Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188B-D. The ambit of a complaint is to be ascertained not by considering its initial form but by considering the shape which it assumed at the time of its termination: Dye at [47].

Standing

Submissions

149 Against that background, I turn to the submissions directed to the question of standing.

150 The Commonwealth submitted, in effect, that the representative complaint filed in the AHRC was fundamentally flawed. Section 46P requires that a representative complaint can only be lodged where the other class members are “persons who are also aggrieved by the alleged acts, omissions or practices” in the lead applicants’ complaints (emphasis added to reflect the submission made). On the Commonwealth’s submission, as an applicant is only empowered by s 46PO(2A) to bring proceedings in this Court if they are an “affected person” themselves or, in representative claims, on behalf of “other affected persons”, and having regard to the specifics in the individual claims that form the foundation of the representative complaint, the Court cannot be satisfied that any of the group members are “persons aggrieved” by the same allegations that form the basis of the individual complaints. That is, the group members are only affected persons if they were “also aggrieved by the alleged acts, omissions or practices” within the meaning of s 46P(2), understood only by reference to the acts, omissions or practices which the individual complainants identified in their complaints. As such, the Commonwealth submitted the applicants whose allegations concern different incidents, at different places or times, or involving different alleged perpetrators, were never validly within the representative complaint at all and so are not “affected persons” for the purposes of s 46PO(2A). The consequence being that none of the group members are “affected persons” within the meaning of s 46PO(2A)(b)(ii) and a representative proceeding cannot be brought on their behalf.

151 The flaw identified above was, in the Commonwealth’s submission, borne out in the construction of the AHRC complaint, which incorporated two documents: Attachment A, which concerned allegations advanced on behalf of the class, and Attachment B, which contained the lead applicants’ complaints. The Commonwealth submitted that, in respect of the class, rather than relying on the conduct complained of in Attachment B, the conduct in fact relied on and advanced was identified separately, in Attachment A. That is, the class members could not be affected persons in relation to anything that occurred to each of the four individual complainants, and the four individual complainants are not “affected persons” with respect to anything that is described or occurred in Attachment A. This physical disjunct demonstrated, in the Commonwealth’s submission, the complaint lacked the commonality required to satisfy s 46P and in turn, s 46PO.

152 In oral submissions the Commonwealth also submitted that as a result of s 35L of the AHRC Act, there is no pathway to making a systems complaint by a person in their own right or on behalf of others, as dealing with systemic unlawful discrimination is a function conferred exclusively on the AHRC. It was submitted that the scheme of the AHRC Act distinguishes those claims that affect classes or groups from those that affect individuals in the way in which complaints can be lodged.

153 More generally, the Commonwealth submitted this Court has emphasised that applicants should not be permitted to commence proceedings “effectively bypassing the procedures provided by the legislation”: Travers v State of New South Wales [2000] FCA 1565 at [8]. It was submitted it was recently confirmed in Wilson v Commonwealth of Australia (Strike-out and Further Particulars) [2026] FCA 91 (Wilson) that Pt IVA of the FCA Act is not an available way of “bypassing” the requirements of s 46PO, as the section operates as an important constraint upon the ability of a complainant to later seek relief in respect of matters not previously raised before the AHRC. Section 46PO imposes different requirements to the “gateway” requirements of s 33C of the FCA Act, and while they “may sometimes overlap in their operation” (as they do in this case), “the provisions have their distinct fields of operation”: Wilson at [45]. Hill J rejected the applicants’ submission that s 46PO(3) has to be interpreted “harmoniously” with ss 33C and 33D of the FCA Act, such that the former could not narrow the types of claims permitted by the latter: Wilson at [31], [43]-[45]. It was said by the Commonwealth that this directly supports its approach in this application of separately addressing the s 33C and s 46PO requirements on the basis that the applicants must satisfy both.

154 The applicants took issue with the Commonwealth’s submission both in relation to whether s 35L prevented a complainant lodging a systems complaint, and the nature and content of the AHRC complaint in this case.

Consideration

155 Before addressing the paragraphs sought to be struck out, it is necessary to address the broader submission.

156 First, it may be accepted that s 46PO(3) applies in this, and any other case where discrimination claims are brought to this Court. This Court only has jurisdiction if the claims fall within s 46PO(3). The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. Properly described, s 46PO is a constraint or a limitation. That is, this Court’s jurisdiction only applies to matters within s 46PO(3).

157 Second, in so far as the Commonwealth relies on Hill J’s rejection of the submission in Wilson that s 46PO(3) has to be interpreted “harmoniously” with ss 33C and 33D of the FCA Act, that conclusion must be read in context. It appears to have been based on the proposition that s 46PO(3) could not narrow the types of claims permitted by ss 33C and 33D: Wilson at [31], [43]-[45]. Hill J referred to the difference in the text of the provisions at [45]:

Crucially, the preconditions for representative proceedings under Pt IVA are expressed in quite different terms from s 46PO(3); in particular, s 33C of the Federal Court Act requires that the claims of group members “are in respect of, or arise out of, the same, similar or related circumstances”, and give rise to a “substantial common issue of law or fact” (s 33C(1)(b) and (c) emphasis added).

158 The applicants do not contend that Pt IVA of the FCA Act expands the subject matter permitted by s 46PO(3). Nor is it suggested that the inquiry in s 46PO(3) is not relevant. Rather, the applicants submitted that where the terminated complaint is itself a representative complaint, the inquiry required by s 46PO(3) must be undertaken by reference to the complaint in its representative character, not as though it were confined to the named complainants’ individual incidents.

159 Nonetheless, in light of Wilson and given the nature of the Commonwealth’s submission, it is appropriate to make some observations about the relationship between s 46PO and s 33C.

160 The applicants submitted that there are textual indications in the AHRC Act of the way in which the Act contemplates the interaction between the two regimes not referred to in Wilson: s 46PB, 46PO(5), and the Note to s 46PO(2A). That may be accepted.

161 As Hill J observed, the text of those provisions is different. However, those provisions must be considered in the context of the fact a representative complaint can be filed with the AHRC and the AHRC Act imposes requirements for filing such a complaint. Although there are some differences between the filing of a representative complaint in the AHRC and the gateway provisions in Pt IVA, there are also similarities.

162 A representative complaint can be filed pursuant to s 46P(2)(b). As apparent from the terms of s 46PB(1) recited above, the conditions by which a representative complaint may be made is relevantly in the same language as s 33C(1)(b) and (c) of the FCA Act. That is, a representative complaint accepted by the AHRC is one that satisfies s 46PB(1) and includes the claims of group members that are in respect of, or arise out of, the same, similar or related circumstances, and gives rise to a substantial common issue of law or fact. Given the text of s 46PB(1)(b) and (c), (and the scheme of the Act) jurisprudence as to the construction of the same language in s 33C(1)(b) and (c) may be relevant. The structure of the AHRC Act is that a representative party may, on behalf of persons entitled to proceed, after the complaint has been terminated by the President, bring representative proceedings under Pt IVA of the FCA Act, subject to the constraints imposed by s 46PO of the AHRC Act: see e.g. ss 46PO(1) and (2A), and see the Note to s 46PO(2A), and s 46PO(5).

163 The AHRC Act cannot sensibly be construed as permitting a complaint to be accepted and terminated as a representative complaint, but because of the different language of s 46PO(3), persons in representative proceedings are excluded from commencing proceedings in this Court. The AHRC Act must be read harmoniously. To put it another way, representative proceedings that are accepted by the AHRC as satisfying the conditions in ss 46P and 46PB, if terminated, should be capable of proceeding to this Court within the constraints in s 46PO(3). To construe the provisions otherwise would be inconsistent with the scheme and purpose of the Act.

164 That is not to suggest that this Court is not to assess whether the claims brought fall within s 46PO(3). Indeed, this Court only has jurisdiction for claims within s 46PO(3); this is an application by the Commonwealth to strike out paragraphs of the ASOC as not falling within s 46PO(3). Although s 46PO(3) does provide constraints, they must be read consistently with the procedures in the AHRC Act for filing a complaint, including a representative complaint. As reflected in Dye, s 46PO(3) is to be construed in light of the fact the scheme encompasses representative complaints.

165 Third, the assessment of whether the claims in the ASOC are the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, is a factual one. That is because the statutory cause of action lies in respect of the subject matter of the complaint. As the focus is on whether the ASOC filed in this proceeding is consistent with, or complies with s 46PO(3), attention is focussed on the complaint before the AHRC and involves the Court considering whether what is pleaded falls within the boundaries drawn by reference to the terminated complaint.

166 It is important to focus on the task of the Court in s 46PO(3). It is not assessing whether the AHRC was correct to accept or terminate the complaint. Nor, on this application, is it assessing the merits of the complaint. The Commonwealth did not seek review of the AHRC decision: c.f. RST v Anti-Discrimination (NT) [2026] FCA 990. As such, the role of the Court is assessing the factual basis of the claims (as described in the authorities referred to above), and whether the claims in this Court are outside of the ambit of those the subject of the terminated complaint.

167 It will be recalled the complaint submitted to the AHRC in this case was accepted as a representative one (with the conditions in ss 46P and 46PB being met) and, with one exception, was terminated under s 46PH(1B)(b) of the AHRC Act on the ground there was no reasonable prospect of the matter being settled by conciliation. The proceeding in this Court is of the same nature as the complaint before the AHRC, a class action brought by four lead applicants on behalf of group members.

168 Fourth, in so far as the Commonwealth submitted, based on s 35L of the AHRC Act, that an individual cannot bring a representative complaint in the AHRC alleging systemic unlawful discrimination, I do not agree. As the applicants submitted, s 35L is in Part II of the AHRC Act, which addresses the AHRC’s functions and confers on the AHRC power to inquire into matters that may relate to systemic unlawful discrimination. Section 35L creates no cause of action and provides no remedy to affected individuals. Part IIB addresses individual redress.

169 Section 35L was introduced in 2022 by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Anti-Discrimination Amendment Act). The explanatory material for s 35L reflects the provision’s role as expanding the function of the AHRC only. The Explanatory Memorandum to the Anti-Discrimination Amendment Act provides at [220]-[221]:

[220]    The Bill would confer a new inquiry function on the Commission to enable it to inquire into, and report on, issues of systemic unlawful discrimination or suspected systemic unlawful discrimination.

[221]    This amendment would implement recommendation 19 of the Respect@Work Report, which recommended that the Commission be provided with an enhanced inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment, on its own motion. The Respect@Work Report found that there are significant cultural and systemic factors driving sexual harassment in the workplace and addressing these systemic drivers can be challenging.

170 The Explanatory Memorandum reflects that although the AHRC had existing powers of inquiry which would include systemic discrimination, they are confined in scope: at [223]. The amendment would enable the AHRC to perform its systemic inquiry functions of its own motion, when requested to do so by the Minister, or when it appears to the AHRC to be desirable to do so: at [226].

171 A consideration of s 35L, in the context of the AHRC Act and given its purpose does not support the contention that it should be read as giving the AHRC the exclusive function of addressing systemic unlawful discrimination. Moreover, given the history of systemic discrimination claims in this Court through s 46P(2)(b)(ii) (and s 46PO), (see e.g. Jenkings and Cumaiyi referred to above) it could not have been Parliament’s intention, through the introduction of s 35L, to narrow the ambit of those provisions and to now exclude a representative complaint on the basis of systemic unlawful discrimination. This would have the effect of excluding a basis on which redress could be obtained by complainants of unlawful discrimination which previously existed.

172 Further, the text of ss 46P and 46PB, considered in context and given their purpose, do not support the Commonwealth’s submission with respect to s 35L. Rather (and as explained further below), the provisions encompass, inter alia, an individual bringing a claim on their own behalf and on behalf of others in respect to “the alleged acts, omissions or practices” (emphasis added). That is capable of encompassing complaints based on systemic unlawful discrimination.

173 There is no inconsistency between s 35L empowering the AHRC to conduct an inquiry into systemic unlawful discrimination, and an individual or individuals filing a representative complaint based on an allegation of systemic unlawful discrimination. To the contrary, it is consistent with and promotes the purpose of the AHRC Act. The regime in the AHRC Act is an exclusive one for remedying contraventions of Commonwealth anti-discrimination laws and places importance on the ability to conciliate claims in the AHRC before proceedings are commenced in court: see e.g. French v Gray [2013] FCA 263; (2013) 301 ALR 679 at [149]-[151]; Dye at [71]; Gao at [26].

174 Fifth, the Commonwealth submitted that the other persons on whose behalf the complaint is filed by virtue of s 46P(2)(b)(ii) must have a complaint directly related to that of the affected person bringing the claim. This, at least in part, is a corollary of its submission that only the AHRC can address systems complaints. As referred to above, the Commonwealth also emphasised “persons who are also aggrieved by the alleged acts, omissions or practices” in s 46P(2)(b)(ii). It was submitted that, on the applicants’ case the word ‘the’ in s 46P(2)(b)(ii) had no work to do. The Commonwealth submitted it confines the provision to the individual acts described by the individual complainants.

175 During oral submissions, the consequences of that submission became apparent. The Commonwealth accepted that, in this case, the only class members in the representative complaint could be those whose alleged perpetrator is the same as the alleged perpetrator in respect to one of the four individual complainants. Generally, in the Commonwealth’s submission, the conduct experienced by a group member must also have been at the same time and in the same location as the acts identified by the individual complainants. The Commonwealth also submitted that, in this context, the identity of other group members would be required to be known before the representative complaint is filed in the AHRC (although they do not need to be identified in the complaint) because it is necessary for the complaint to contain the details of their experience, relying on s 46PO(1B).

176 The Commonwealth’s construction of the representative provisions in the AHRC Act is so narrow the avenue of complaint to the AHRC would be of limited utility. That is particularly so if, as explained above, a representative complaint includes a systems complaint. I do not consider its construction is supported by a consideration of the text of the AHRC Act, considered in context, and given its purpose. To the contrary, it would frustrate that purpose for no ostensible benefit. It would significantly limit the ability of an applicant or applicants to file a representative complaint or to bring a class action in relation to claims under discrimination laws.

177 Further, the submission the class members need to be known (even if their identity is not revealed) before the filing of a complaint fails to grapple with the nature of a representative claim. As properly recognised in Dye, persons who may be in the class or part of the representative claim may not know of its existence until filed in this Court: at [43]-[45]. That is also reflected in the fact the class members need only to be described, and a representative complaint can be lodged without the consent of the class members: ss 46PB(3) and (4). Again, the Commonwealth’s construction would limit the application of the process of representative complaints in a manner not supported by the terms of the provisions.

178 The Commonwealth submitted that Dye was not addressing issues relevant to a class action. As explained above, that is correct. However, that does not impact on the correctness of its reasoning. As the Court observed, the fact of representative proceedings is a matter of context, plainly relevant to construing s 46PO. Further, the observation in Dye about when group members may become aware of proceedings is uncontroversial, as it describes a common circumstance applicable to class actions generally.

179 Turning to the AHRC complaint in this case.

180 Although the Commonwealth submitted that it was not challenging the validity of the complaint to the AHRC, in practical terms that is the import of its submission. That is, the Commonwealth submitted that systemic unlawful discrimination is not available, and so no one other than the four individual complainants are affected persons for the purpose of s 46PO (which is addressed above).

181 It also submitted the limits of the applicants’ representative complaint are as described above, and therefore in this case there are no class members who are affected persons. This involved an assessment of the complaint in the AHRC. As already explained, the Commonwealth submitted that because of the manner in which this complaint was filed in the AHRC, only the four applicants themselves are affected persons as only their complaints sufficiently identify the elements that would engage the relevant provisions in s 46PO. It was said that apart from those individuals, the persons who are separate to and only described in Attachment A are described at such a high level of generality that they could not be identified as an affected person. The Commonwealth accepted that “there are affected persons within the description of Attachment A” but that “the affected person is not a hypothetical person. The class members are real people”. It submitted that they do not need to be named, or come to court, but the Court does “[need to] know who they are by what occurred to them and by the basis upon which the conduct that they say occurred to them would be unlawful”. For the reasons already expressed, I do not accept that degree of specificity is required, or that the class members must be known before the complaint is filed.

182 The Commonwealth’s submission is based on an artificial reading of the complaint before the AHRC. I address the complaint in further detail below, but the Commonwealth has chosen to read the complaint filed in the AHRC as if Attachments A and B are not related, and as if it is not a representative complaint. A consideration of the complaint reflects there is no proper basis to do so. It is readily apparent from the complaint that it was not confined to the named complainants’ personal incidents. Read properly, there is one written complaint lodged with the AHRC for the purposes of s 46P(1) of the AHRC Act.

183 The terminated complaint is a representative complaint, and as such the content of the complaint to which s 46PO(3) refers is to be understood in that light. As explained above, the ambit of a complaint to be considered for the purposes of s 46PO(3) is the shape of it at the time of its termination, which in this case was one of a representative complaint involving an allegation of systemic unlawful discrimination.

184 As the commencement of Attachment A makes plain, the complainants are making complaints on behalf of themselves as aggrieved persons and on behalf of other persons aggrieved by the acts, omissions and practices described in [8] of that attachment, amounting to unlawful discrimination. Paragraph [8] onwards details not only the characteristics of the class members but the basis for the Commonwealth bearing liability in relation to their claims and those of the class. The representative complaint involves complaints against the same legal person, the Commonwealth, which is said to be in relation to the individual complainants and class members liable under ss 105 and/or 106 of the SD Act, for the relevant conduct.

185 I note that an affected person is defined by the SD Act as a person on whose behalf a claim is lodged: s 3. There is no dispute that the four lead applicants are affected persons. They have filed the proceeding in this Court on behalf of class members who, given their description in the representative complaint, are affected persons. Their discrimination, alleged against the Commonwealth, arises out of the same, or substantially the same acts, omissions or practices of the Commonwealth, that were the subject of the terminated complaint.

186 The Commonwealth has not established any basis on which the paragraphs in the ASOC relating to the group members’ claims should be struck out.

Specific paragraphs

187 Against that background I turn to the remaining challenges to paragraphs identified in the ASOC on the basis they are outside of s 46PO(3).

188 The Commonwealth submitted there are significant factual allegations made by the individual applicants that are not reflected in the AHRC complaint in any way.

189 The Commonwealth submitted that, in relation to the first applicant, [41]-[49] of the ASOC involves a series of detailed allegations about events in connection with her time at [REDACTED] Base ([REDACTED] Base Conduct) where no allegations concerning [REDACTED] Base were advanced in the AHRC complaint. It submitted the [REDACTED] Base Conduct advances a new set of allegations occurring at a different place and time, and involving different alleged perpetrators to those in the terminated complaint. The Commonwealth made what was essentially the same submission in relation to the allegations advanced by the third applicant at [112]-[118]. There, it was submitted, the third applicant made detailed allegations concerning acts, omissions or practices allegedly occurring from [REDACTED] to December [REDACTED] at the [REDACTED] ([REDACTED] Conduct) where there is no such allegation in the AHRC complaint. In respect to both challenges, it was submitted it could not reasonably be said to arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint, as required by s 46PO(3).

190 The Commonwealth also submitted that [51], [60], [68]-[74], [81], [101], [104]-[105] and [125] of the ASOC advance specific allegations of fact by the individual applicants which are substantially different from the corresponding allegations advanced in Attachment B of the complaint. However, apart from [60], the Commonwealth did not address these paragraphs. Rather, it was put that where the complaint advanced allegations of a particular kind of conduct at a particular location, the ASOC introduces fresh allegations of a materially different kind or introduces conduct occurring at a materially different time or in materially different circumstances. Where such differences exist, they cannot be characterised as arising from the same (or substantially the same) acts, omissions or practices within the meaning of s 46PO(3)(b). The Commonwealth did not address the submissions put against them by the applicants in respect to any of these paragraphs.

Consideration

191 As a general observation, the Commonwealth’s submissions with respect to these paragraphs tend to approach the s 46PO(3) issue as if the complaint relates to individual claims, and individual complainants. As explained above, properly understood this is one complaint filed in the AHRC. This application was, as the applicants contended, lodged, accepted, amended and terminated as a single representative complaint. It will be recalled that s 46PO(3) is directed to the subject of the terminated complaint. Further, it will be recalled as earlier explained, the terms of a complaint made to the AHRC should not be read with the same strictures as those that apply to a pleading in this Court: Dye at [46]-[48].

First applicant: [REDACTED] Base Conduct – paragraphs [41]-[49]

192 As to the first applicant’s claims in relation to the [REDACTED] Base Conduct at [41]-[49], it is correct the [REDACTED] Base is not referred to in the AHRC complaint. The question is whether the [REDACTED] Base Conduct arises from substantially the same acts, omissions or practices as those the subject of the terminated complaint: s 46PO(3)(b).

193 Although the Commonwealth advanced this is a new set of allegations occurring at a different place and time, and involving different alleged perpetrators to those in the terminated complaint, that fails to consider the claims in the context of the content of the AHRC complaint.

194 It will be recalled, as described earlier, that in Dye an additional allegation of sexual assault fell within the description in s 46PO(3). The alleged incident was not referred to in the AHRC complaint, but the complainant was understood to be alleging “instances of a pattern of behaviour”. Her complaint alleged a course of sexual harassment in a variety of forms over a period of months. The scope of the complaint was “sufficiently wide” to prevent another instance of such conduct being excluded from the pleading upon the ground in s 46PO: Dye at [50]-[51].

195 The applicants submitted the complaint before the AHRC of the first complainant was of “career-long experience of sexualised and hostile environment [sic] throughout her ADF service”. The [REDACTED] Base Conduct is alleged to have occurred four months before the conduct said to have occurred at [REDACTED] that was included in the AHRC complaint and is the first in point of time. The applicants submitted that it does not raise a new species of discrimination or introduce conduct absent from the complaint in substance. I accept the applicants’ submission that the [REDACTED] Base Conduct is identical in character to the conduct having occurred at [REDACTED] and [REDACTED], being sexualised comments, leering, sexist remarks, and exposure to explicit material. The complainant is the same and the service relationship is the same. The basis on which liability is sought to be attributed to the Commonwealth is the same. I accept those submissions.

196 I am mindful of the Commonwealth’s submission that the flexibility referred to in Dye should not extend to the use of a complaint as a “launching pad for an open class of claims by persons who were strangers to the complainant’s specific experiences”. The Commonwealth also pointed to an observation in Dye at first instance, that an incident that was unknown at the time of the attempted conciliation “could not have been part of it”: at [105]. It was also submitted that the conciliation purpose underpinning s 46PO would be defeated if group members’ individual claims could be brought within the ambit of the complaint merely because they involve the same generic type of conduct.

197 However, that submission, taken literally, would mean that in respect to an individual in a class action, the flexibility encompassed within s 46PO(3) should be more narrowly applied or exercised where it relates to a class action. These submissions miss that the issue is whether what is pleaded at those passages satisfies the description in s 46PO(3)(b). That involves an assessment of the terminated complaint. If these paragraphs involved further allegations in relation to the bases already pleaded (e.g. further examples of that same conduct at [REDACTED]), it would be difficult to understand how that would not satisfy the criteria in this case. Given the ambit of the AHRC complaint, I do not consider, given the ongoing experience there described, that these same allegations made in respect to a different base, alters that assessment. The Commonwealth’s submission does not grapple with the ambit of the AHRC complaint in this matter.

198 I am satisfied the [REDACTED] Base Conduct arises from substantially the same acts, omissions or practices as those the subject of the terminated complaint: s 46PO(3)(b).

First applicant: Paragraphs [51], [60], [68]-[74], [81]

199 These are paragraphs which, apart from the generic submission outlined above, are not addressed by the Commonwealth. They are to be considered in light of the description of the first applicant’s complaint to the AHRC, described above.

200 Paragraph [51] relates to conduct at the [REDACTED] base. It cannot be suggested that the claim made is not within s 46PO(3); at best it must relate to the particulars given of that claim. I accept these are additional instances of the same pattern of conduct described in the terminated complaint.

201 Paragraph [60] relates to sexual conduct said to have occurred at the [REDACTED] Base and less favourable treatment said to have occurred at the same location. I agree that any additional instances of conduct not expressly referred to in the AHRC complaint are further instances of the same categories of conduct expressly described in the complaint: Attachment B at [7]-[9].

202 Paragraphs [68]-[74] relate to the sexual conduct said to have occurred at [REDACTED] Base, an incident involving a [REDACTED] servicewoman, and detriments the first applicant claims to have suffered. In so far as the conduct related to the first applicant’s experience of sexual conduct, these are further instances of what she describes having occurred to her at other bases. It is part of her continuing experience. The incident involving a [REDACTED] servicewoman is referred to in the AHRC complaint, with the details referred to in the ASOC: Attachment B at [11].

203 Paragraph [81] relates to further instances of sexual conduct said to have occurred at [REDACTED] Base, including an incident in [REDACTED]. This paragraph only provides particulars of the particular conduct already described: Attachment B at [14]-[16].

204 The allegation in each of the passages in these paragraphs, although not expressly referred to in the AHRC complaint, arises from substantially the same acts, omissions or practices as those the subject of the terminated complaint.

Second applicant: paragraphs [101], [104]-[105]

205 Paragraph [101] relates to sexual conduct said to have occurred at [REDACTED] Base, including incidents relating to the HMAS [REDACTED] ([REDACTED] Incident). Given the incidents described in this paragraph appear in the AHRC complaint, it is difficult to understand the basis of the Commonwealth’s application: see Attachment B at [28]-[29].

206 Paragraphs [104]-[105] relate to the second applicant making a complaint about the [REDACTED] Incident to her commanding officer, and to detriments she claims to have suffered. The second applicant accepts that Attachment B does not contain an express individual victimisation claim of the complaint in the same form as those of the third and fourth complainants. However, as the second applicant submitted, Attachment A does expressly allege victimisation and the consequence thereof: Attachment A at [35]-[37]. I accept that [104]-[105] falls within that description such that it can be said the claim arises from substantially the same acts, omissions or practices that were the subject of the terminated complaint.

207 I note that to the extent the incidents engage issues of extraterritoriality, the applicant applied for leave pursuant to s 46PO(3A)(a) to plead conduct which occurred outside of Australia. Leave was not opposed by the Commonwealth on the basis that it involved no finding or concession that the SD Act applied to the extraterritorial allegation, with that issue being addressed on a final basis at a later stage of the proceedings. Leave was granted on that basis.

Third applicant: [REDACTED] Conduct – paragraphs [112]-[118]

208 As to the third applicant, it also may be accepted that her description of the [REDACTED] Conduct at [112]-[118] is not described in the AHRC complaint. However, for substantially the same reasons as above, these paragraphs arise from substantially the same acts, omissions or practices as those the subject of the terminated complaint.

209 In addition, in relation to these paragraphs, I accept that in Annexure A, there is express reference to the Broderick Phase 1 Report, otherwise known as “The Report of the Review into the Treatment of Women at ADFA” (November 2011) and its contents. That includes, inter alia, extensive references to examples of experiences of women at the [REDACTED]. As the applicant submitted, the [REDACTED] Conduct is a specific instance of the systemic pattern the representative complaint describes.

210 I am satisfied that [112]-[118] arise from substantially the same acts, omissions or practices as those the subject of the terminated complaint.

Third applicant: paragraph [125]

211 Paragraph [125] relates to conduct at [REDACTED] Base. The AHRC complaint refers to conduct at that base including an incident in [REDACTED] and its consequences. It also refers to other sexualised conduct and a hostile environment: Attachment B at [41]-[42], [45]-[46]. These further particulars, given the nature of the complaint made, are matters which fall within the scope of s 46PO(3).

212 For the reasons above, the Commonwealth has not established that the specific allegations of fact alleged by the four individual complainants fall outside s 46PO(3). Considering the ambit and shape of the terminated complaint, I am satisfied the impugned matters arise from substantially the same acts, omissions or practices that were the subject of the terminated complaint.

Conclusion

213 For the reasons above, the Commonwealth’s interlocutory application is dismissed, with costs.

Associate:

Dated:    15 September 2026

SCHEDULE OF PARTIES