Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 616

Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 616

The Commission erred in law in concluding that DIP 5-9 did not require refusal of promotion to Mr Manning. Properly read, DIP 5-9 meant that, absent an extension of retirement age or other exceptional circumstances, the selection panel could not promote an officer unable to serve the required two year period before compulsory retirement. No extension, application for extension, or exceptional circumstances existed.

Jurisdiction
Australia
Judgment Date
11 May 1999
Procedural Posture
Application for Judicial Review of a Human Rights & Equal Opportunity Commission Decision / Federal Court Reasons for Judgment and Orders
Outcome
Application for review upheld; decision of the first respondent set aside.
Legal Topics
['age Discrimination' 'promotion Within Two Years of Compulsory Retirement Age' 'defence Instructions' 'judicial Review for Error of Law' 'inherent Requirements of Employment']
['human Rights' 'discrimination Law' 'administrative Law' 'military Law'] ['age Discrimination' 'promotion Within Two Years of Compulsory Retirement Age' 'defence Instructions' 'judicial Review for Error of Law' 'inherent Requirements of Employment']

Case Brief

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Procedural Posture

Application for Judicial Review of a Human Rights & Equal Opportunity Commission Decision / Federal Court Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether Defence Instruction (Air Force) Personnel 5-9 gave the RAAF promotion selection panel a discretion to promote an officer who could not serve normally not less than two years at the higher rank before compulsory retirement.' 'Whether the Commission erred in law by concluding that DIP 5-9 did not require refusal of promotion to Mr Manning.' 'Whether action taken in compliance with Defence Instructions was an act or practice for the purposes of s 31(b) of the Human Rights and Equal Opportunity Commission Act 1986.' 'Whether availability to serve at the rank of Squadron Leader for two years was an inherent requirement of the job.']

Ratio Decidendi

The Commission erred in law in concluding that DIP 5-9 did not require refusal of promotion to Mr Manning. Properly read, DIP 5-9 meant that, absent an extension of retirement age or other exceptional circumstances, the selection panel could not promote an officer unable to serve the required two year period before compulsory retirement. No extension, application for extension, or exceptional circumstances existed.

Court Disposition

Application for review upheld; decision of the first respondent set aside.

Orders

  • ['The application for review be upheld.' 'The decision of the first respondent be set aside.']