Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 (24 March 2005)

Last Updated: 4 May 2005

FEDERAL COURT OF AUSTRALIA

Peacock v Human Rights and Equal Opportunity Commission

[2005] FCAFC 45

CATCHWORDS - Discrimination law -- compulsory retirement on basis of age -- statutory discretion to exempt employees from compulsory retirement -- refusal by Secretary of Department of Defence to exercise such discretion -- inquiry by Human Rights and Equal Opportunity Commission into whether such refusal amounted to unlawful discrimination -- subsequent refusal to inquire further into appellant’s claims -- matter previously litigated and adequately dealt with -- need for finality in litigation


Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 20, 32


Peacock v Human Rights and Equal Opportunity Commission [2004] FMCA 466 affirmed
Peacock v Human Rights and Equal Opportunity Commission (2002) EOC 93-235 referred to
Peacock v Human Rights and Equal Opportunity Commission (2003) 73 ALD 341 referred to
Peacock v Commonwealth of Australia (1998) 88 FCR 110 discussed
The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-6 discussed
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] referred to
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 681-2 referred to
TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4; (2001) 3 VR 93 at [40]- [46] referred to
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 at 526-7, 531 and 537-9 referred to
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 at 544 referred to
Elekwachi v Human Rights and Equal Opportunity Commission (1997) 79 FCR 271 at 273-4 referred to
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [6]- [7] referred to
Commonwealth of Australia v Peacock [2000] FCA 1150; (2000) 104 FCR 464
Cheesman v Waters (1997) 77 FCR 221 referred to
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 referred to
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 referred to


MORTIMER JOHN PEACOCK v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

N1223 of 2004

WEINBERG, JACOBSON and LANDER JJ
24 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1223 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MORTIMER JOHN PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION RESPONDENT
JUDGES:	WEINBERG, JACOBSON and LANDER JJ
DATE OF ORDER:	24 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1	The appeal be dismissed.
2	The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1223 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MORTIMER JOHN PEACOCK APPELLANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION RESPONDENT

JUDGES:	WEINBERG, JACOBSON and LANDER JJ
DATE:	24 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Raphael FM dismissing an application for judicial review of a decision by the Human Rights and Equal Opportunity Commission (‘HREOC’). That decision, made on 22 January 2004 by the President, The Hon. John von Doussa QC, was to exercise HREOC’s discretion under ss 20 and 32 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) not to inquire further into the appellant’s complaints.

2 Those complaints go back a long way. They began shortly after the Commonwealth terminated the appellant’s employment on 19 July 1996, pursuant to s 76V of the Public Service Act 1922 (Cth) (as it then stood). At the relevant time, the section was in the following terms:

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

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

(3) The relevant Secretary may, at the time of making, or at any time after making, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the relevant Secretary may, at any time before the officer attains that age or before the expiration of the period so determined, vary the determination.

(4) In this section:

"maximum retiring age", in relation to an officer means:

(a) if the officer is included in a class of officers in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations – the age so fixed; or
(b) in the case of any other officer – the age of 65 years;

"officer" includes:

(a) an officer whose appointment to the Service on probation has not been confirmed; and
(b) a short-term employee, a fixed-term employee or an overseas employee.’

3 The appellant was a former officer of the Australian Public Service who had worked with the Department of Defence. He had applied to the Secretary of the Department, under s 76V(2), for a determination that s 76V(1) did not apply to him. His application was considered, but rejected. It would appear that his case was by no means unusual. In Secretary, Department of Defence v Human Rights and Equal Opportunity Commission (1997) 78 FCR 208, Branson J dealt with three other former employees of the Department of Defence who were also aggrieved by the Secretary’s refusal to exempt them from compulsory retirement.

4 On 11 June 1996, the appellant lodged a complaint with HREOC alleging age discrimination in his employment with the Commonwealth. As previously indicated, on 19 July 1996, the appellant was compulsorily retired.

5 On 30 September 1996, the Human Rights Commissioner, Mr Chris Sidoti, wrote to the appellant regarding his complaint. The Commissioner noted that among the appellant’s claims was a contention that s 76V was invalid as being inconsistent with the International Covenant on Civil and Political Rights (‘the ICCPR’, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)). He drew attention to the fact that the ICCPR did not affirm a right to employment. He noted, however, that equality of opportunity was affirmed in the Convention concerning Discrimination in respect of Employment and Occupation (‘the ILO Convention’, adopted 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960)), and related regulations. He went on to say that having considered the material relating to the appellant’s case, and the relevant provisions of the HREOC Act, he had provisionally concluded that the practice of compulsory age retirement constituted discrimination. He then identified a process that would be followed whereby, after considering further submissions, if he was still satisfied that the practice constituted discrimination, he would issue and serve upon the appellant a notice under s 35(2) of the HREOC Act.

6 It then took more than three years for Commissioner Sidoti to complete his inquiry into the appellant’s complaint. On 20 December 1999, the Commissioner issued a notice under s 35(2), finding that ‘an act done or practice engaged in’ by a person constituted discrimination. He recommended that the appellant be compensated and awarded the appellant the sum of $20,000 for his loss as a consequence of that discrimination.

7 Both the appellant and the Commonwealth were dissatisfied with Commissioner Sidoti’s decision. The Commonwealth challenged the finding that there had been discrimination, and the appellant challenged the adequacy of the sum of $20,000 fixed by the Commissioner as appropriate compensation. Both parties sought judicial review. Both matters were heard together by Wilcox J who, on 17 August 2000, determined that the Commissioner’s decision should be set aside because he had treated the Secretary’s ‘consideration of age as a distinction based on age, without considering how it might effect equality of treatment between individuals’: Commonwealth of Australia v Peacock [2000] FCA 1150; (2000) 104 FCR 464 at [44]. His Honour remitted the matter to HREOC for further inquiry and determination according to law.

8 It is important to note that Wilcox J said at [43]:

‘It follows from these factual findings that the decision made by Mr Ayers was materially affected by a distinction made by him on the basis of age: the need to provide a balanced age profile and to provide career opportunities for younger officers. But how did that distinction affect equality of opportunity or treatment in employment? As between Mr Peacock and younger officers, at material times there was never relevant equality. Mr Peacock’s previously equal right to continue in the Commonwealth’s employment had been swept onto the rock called s 76V(1). He was not in competition with any other officers who might have been approaching the age of 65 years and seeking extensions. There was no question of Mr Ayers denying Mr Peacock’s equality with such persons.’ (original emphasis)

9 The appellant did not appeal against that decision.

10 The matter came back before HREOC, and was further considered by the then Human Rights Commissioner, Dr Sev Ozdowski. On 11 January 2002, Commissioner Ozdowski concluded that the act complained of did not constitute discrimination in employment on the basis of age, and so reported under s 35(3). In doing so, he relied upon the comments of Wilcox J at [43] which he described as the ‘key (and, in my view, determinative) issue in the matter before (him)’. He said at page 16 of his reasons:

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

11 The appellant then sought judicial review of that decision. On 8 August 2002, Moore J dismissed that application: Peacock v Human Rights and Equal Opportunity Commission (2002) EOC 93-325. His Honour held that Wilcox J at [43] in his reasons, in the earlier proceeding, had rejected as possible comparators other officers approaching the age of sixty-five years and seeking extensions, as well as the younger officers to whom he had also referred in the earlier part of the passage set out above. Moore J concluded that this was no mere dictum on the part of Wilcox J, but formed an integral part of his reasoning: at [26]. Moore J considered that he should follow that reasoning unless satisfied that it was plainly wrong: at [27]. His Honour said that he was not so satisfied.

12 The appellant then appealed against the decision of Moore J, and also sought leave to appeal, two years out of time, from the decision of Wilcox J.

13 On 23 March 2003, the appeal from Moore J, and the application for leave to appeal out of time from the judgment of Wilcox J, were both dismissed. The Full Court (Kiefel, North and Allsop JJ) concluded that the appellant was seeking to put his case on a completely new basis. Kiefel and Allsop JJ also observed that ‘the interests of justice in this case are opposed to the raising of a fresh ground and a continuation of these protracted proceedings’: Peacock v Human Rights and Equal Opportunity Commission (2003) 73 ALD 34 at [30].

14 In the meantime, the appellant had brought proceedings in the Industrial Relations Court of Australia alleging unlawful termination of his employment. He claimed that he had been dismissed by reason of age in contravention of s 170DF of the then Industrial Relations Act 1988 (Cth). On 26 June 1998, Judicial Registrar McIlwaine upheld his claim. On 16 October 1998, that decision was overturned on review by Wilcox J on the ground that the appellant’s employment was terminated as a result of the operation of an Act of Parliament: Peacock v Commonwealth of Australia (1998) 88 FCR 110.

15 On 6 February 2003, shortly before the Full Federal Court determined his appeal from Moore J, and his application for an extension of time to file an appeal from Wilcox J, the appellant lodged a further series of complaints with HREOC. He noted that, whereas his previous complaints had focussed upon, and been dealt with, as complaints of age discrimination in employment, pursuant to Pt II, Div 4 of the HREOC Act (‘Functions Relating to Equal Opportunity and Employment’), and the ILO Convention set out at Sch 1, his new complaints focussed upon claimed breaches of human rights, particularly equality of treatment before the law, relevantly in respect of age discrimination. He said that he now relied upon Pt II, Div 3 of the HREOC Act (Functions Relating to Human Rights) and art 26 of the ICCPR, as set out at Sch 2. It should be noted that art 26 provides as follows:

‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

16 The appellant stated that he relied upon s 11(1)(f) of the HREOC Act in support of his contention that there should be a further inquiry into his complaint of age discrimination. That paragraph vests in HREOC the function of investigating ‘any act or practice that may be inconsistent with or contrary to any human right’.

17 The particular targets of the appellant’s new complaints were identified in four letters from the appellant to HREOC. These were dated 28 March 2003, 15 April 2003, 2 July 2003 and 21 August 2003. The contents of these letters were not always easy to follow. However, in substance, the appellant seemed to be complaining about:

•	Commissioner Ozdowski in relation to his inquiry;
•	the Commonwealth in relation to s 76V;
•	Wilcox J, Moore J, and the members of the Full Court in relation to their judgments; and
•	the Minister for Employment and Workplace Relations and the Attorney-General for failure to introduce legislation to amend s 76V.

18 As previously indicated, on 22 January 2004, the President exercised the discretion vested in HREOC and declined to inquire further into the appellant’s complaints of 6 February 2003. He exercised this discretion in relation to both the performance of HREOC’s functions relating to human rights (under s 20(2) of the HREOC Act) and its functions relating to equal opportunity (under s 32(2)). The President gave the following grounds for his decision:

•	re Commissioner Ozdowski - the claim was misconceived and lacking in substance;
•	re the Commonwealth - the subject matter of the claim had been dealt with adequately by both HREOC and others, and the complaints were misconceived and lacking in substance;
•	re the members of the judiciary - the complaints were misconceived; and
•	re the Commonwealth Ministers - the complaints were misconceived.

19 As previously indicated, on 10 February 2004, the appellant sought judicial review of the President’s decision not to inquire into his complaints. The applicant named HREOC as respondent. On 1 March 2004, the appellant filed an affidavit in which he deposed to certain background facts and, inappropriately, set out as well his arguments in support of the application for judicial review.

20 On 27 April 2004 HREOC, sought to submit to the jurisdiction of the Federal Magistrates Court in accordance with the principle in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36 ("Hardiman").

21 That is made clear in an affidavit sworn and filed on 18 May 2004 in the Federal Magistrates Court by the deponent, Julie Catherine O’Brien, a solicitor employed by the Legal Services Department of HREOC, who after referring to the role that HREOC wished to take, deposed:

‘Hardiman principles

19 On 27 April 2004 the Commission sought to submit to the jurisdiction of this honourable Court in accordance with the principle in The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-6. Federal Magistrate Raphael indicated that it would assist the Court if the Commission provided a Response to the Applicant’s application. Federal Magistrate Raphael made directions to that effect. The Commission provides its Response dated 18 May 2004, together with this affidavit in support, in accordance with the directions made by Federal Magistrate Raphael on 27 April 2004.’

22 The contents of Ms O’Brien’s affidavit were non-controversial. She merely deposed to relevant historical matters in order to put the appellant’s application in the Federal Magistrates Court in context. On the same day, HREOC filed a response to the appellant’s application which did no more than seek an order that the application be dismissed, and that the appellant pay HREOC’s costs.

23 Significantly, HREOC did not call evidence from Mr von Doussa and did not seek to cross-examine the appellant.

24 In his submissions, on this appeal, HREOC’s counsel said:

‘In compliance with the Court’s (Federal Magistrates Court) direction it also acted as contradictor, providing submissions in support of the Decision in response to those of Mr Peacock.’

25 Those submissions were not provided to this Court.

26 The matter was heard by Raphael FM.

27 In his further amended application filed on 8 July 2004, the appellant relied essentially upon two matters:

•	that the President had failed to appreciate that his complaint of 6 February 2003 was not of age discrimination as such, but rather of failure to accord equality before the law in respect of age discrimination. In other words, he claimed that the Commonwealth had failed to accord him rights that were recognised in the ICCPR; and
•	that on the approach taken by the President, the HREOC Act did not provide any effective remedy for a breach of the ICCPR. If that were so, the HREOC Act would necessarily be invalid. To avoid that consequence, it must follow that the President had erred.

28 The Federal Magistrate dismissed the application for judicial review. In substance, his Honour concluded the President had acted lawfully when he exercised the powers conferred upon HREOC under ss 20(2) and 32(2).

29 By amended notice of appeal filed on 12 August 2004, the appellant appeals from the whole of the decision of the Federal Magistrate. The grounds set out in the notice are as follows:

‘2. In directing the HREOC to take a direct adversarial role to "rebut" the Applicant’s application, his Honour breached higher court ratio (that bound both his Honour and the HREOC) and compromised HREOC’s impartiality.

3. His Honour failed to address the substance of the application which was that HREOC did not exercise its discretion in accordance with the object and purpose of its governing statute and in accordance with the duties and obligations placed on it by that statute (in particular but not exclusively s.10A(1)(a) of the HREOCA refers).

4. His Honour erred by failing to recognise that the exercise of a discretion does not depend on the abstract meaning of the word "may" but on the clear establishment of the circumstances that allow for the exercise of the discretion. That if the circumstances are clearly there then HREOC may exercise the discretion but if they are not then it cannot. In this case the circumstances are not there.

5. His Honour failed to appreciate the difference between a complaint and the formulation of a complain and that, as s.20(2) of the HREOCA governs the complaint only (s.20(5) deals with the formulation), once HREOC had conceded the complaint it could not legally, linguistically or logically exercise its discretion under s.20(2). Further that as the complaint was only conceded in January 2004 it could not have been previously inquired into. It is logically impossible to inquire into a complaint before it is identified and/or conceded.

6. His Honour failed to distinguish between the rights recognised in the Convention (Schedule 1 of the Act) and the separate and distinct rights recognised in the Covenant (Schedule 2 of the Act) and that an inquiry pursuant to the Covenant involved different legal considerations to one pursuant to the Convention.

7. Although directed to the jurisprudence, his Honour failed to appreciate that the Australian constitution will not support a law depriving citizens of their citizenship rights and that s.76V(1) of the PSA 1922 had been identified by HREOC as such a law.

8. The judgment as it stands invalidates the HREOCA 1986 pursuant to binding High Court of Australia ratio on the basis that the discrimination, the denial of rights is given (Art. 2(1) of the ICCPR breached); the HREOC says it can’t help (Arts 2(2) and 2(3)(b) not complied with); remedy not available (Arts 2(3)(a) and 2(3)(c) not complied with). Indeed none of the provisions in Art 2 adhered to. The optional protocol is part of the Covenant only and exists independent of the Act thus it does not save the invalidity. The proposition is in itself discriminatory and violates Art. 50 of the Covenant.’ (AB255-6)

30 It must be said that some of these grounds of appeal are difficult to follow. The same is true of a number of the appellant’s submissions. In substance, however, he seemed to have been making three points:

• the Federal Magistrate erred in directing HREOC to participate in the proceeding (‘the Hardiman point’);
• the Federal Magistrate and the President erred by failing to differentiate between the provisions of the ILO Convention and the ICCPR; and
• the President’s approach would render the HREOC Act invalid, and must therefore itself have been erroneous.

31 In relation to the ‘Hardiman’ point, the appellant complained that the Federal Magistrate’s direction to HREOC, an independent body with statutory functions, including those of inquiring into and attempting to conciliate complaints of unlawful discrimination, meant that it had been forced to adopt an adversarial role in the proceeding before his Honour.

32 It would appear, from what we were told from the Bar table, that HREOC endeavoured to persuade the Commonwealth to seek to be joined as a party so that it would not be put in the awkward position of having to adopt an adversarial role in justification of its own conduct. Regrettably, and for reasons that we cannot fathom, the Commonwealth declined to assist. HREOC then complied with the Magistrate’s direction. It was represented below, and it has continued to be represented before this Court on the appeal.

33 If HREOC had done no more than submit to the jurisdiction of the Court in the ordinary way, and the Commonwealth had not stepped in to defend the proceeding, there would have been no contradictor. It was in those circumstances that the Federal Magistrate indicated that the Court would be assisted if HREOC were to provide a response to the appellant’s application. Indeed, his Honour went further and made a direction requiring HREOC to do so.

34 Counsel for HREOC on the appeal submitted that crucial to the Hardiman principle is the presence of a contradictor. He referred to Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 681-2 ("Fagan"), and to TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 4; (2001) 3 VR 93 at [40]- [46]. In the present case, given the unwillingness of the Commonwealth to be joined, or to intervene, there was really no choice other than for HREOC to comply with the Court’s direction.

35 Counsel noted that it had been open to the appellant to join the Commonwealth as a party to this proceeding. He had elected not to do so. In addition, he had raised no objection to HREOC’s participation before the Federal Magistrate even though he knew full well that it had sought simply to submit to any order that the Court might make. He submitted that given that there had to be a contradictor, and given also that HREOC had confined its submissions to matters relating to its powers and procedures, it could not be said that the decision below, and the orders made, were the product of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23]. He submitted that it was of particular significance that HREOC had not sought to lead evidence from either the President or Commissioner Ozdowski in support of the impugned decision. Nor had the appellant been cross-examined on any of his affidavit material.

36 Counsel also relied upon the somewhat unusual nature of the decision that was the subject of the application for judicial review. The President had determined that HREOC should not enquire further into any of the appellant’s complaints. That decision did not involve any other party. It stood in stark contrast with a number of the cases relied upon by the appellant in the course of his submissions.

37 Counsel emphasised that the issues raised before the Federal Magistrate related squarely to the breadth of HREOC’s powers and procedures: cf Hardiman at 35-6. That made it singularly appropriate for HREOC to be heard regarding those issues.

38 Finally, counsel argued that HREOC fully understood the importance of the Hardiman principle. Indeed, it had once previously been rebuked by this Court for having adopted an adversarial role: Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 at 526-7, 531 and 537-9. Plainly it had no desire to relive that experience. However, HREOC had been asked, on various occasions, to assist the Court in situations where there was no contradictor. The present case was no different to what had occurred in other cases: see, eg, Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 at 544 per Wilcox J; Elekwachi v Human Rights and Equal Opportunity Commission (1997) 79 FCR 271 at 273-4 per Mansfield J; and Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [6]- [7] per Sackville, North and Kenny JJ.

39 It goes without saying that the principles laid down by the High Court in Hardiman are of fundamental importance. Perhaps the Federal Magistrates Court should have invited the Commonwealth or the Attorney-General for the Commonwealth to intervene: s 78A Judiciary Act 1903 (Cth). It is difficult to believe that the Commonwealth would have resisted joinder, or declined to provide assistance, had the Court, rather than HREOC, specifically requested it to do so. It is unfortunate that HREOC was put in the invidious position of having to make submissions in support of the President’s decision, rather than having the Commonwealth act on its behalf.

40 More troubling still was the fact that on the appeal to this Court, HREOC was forced into the position of having to justify its own conduct, being the subject matter of the proceeding before the Federal Magistrate, and also its conduct in that proceeding.

41 In the end, however, we are not persuaded that the Federal Magistrate’s direction led to any miscarriage of justice, or denial of procedural fairness. It was accepted by the appellant that even if HREOC had acted inappropriately by simply acceding to that direction his appeal to this Court could not succeed unless he could also demonstrate that his Honour had erred in dismissing the application for judicial review. It is necessary therefore to turn to his arguments in support of that application.

42 In substance, the appellant’s principal contention was that the President had fallen into jurisdictional error by failing to differentiate between a claim brought under the ILO Convention, and a claim brought under the ICCPR. He submitted that his complaint under the ICCPR was quite separate and distinct from his earlier claim under the Convention. He further submitted that the rejection of that earlier claim should not operate to bar his later complaint.

43 The appellant’s argument that a complaint under the ICCPR alleging a denial of ‘human rights’ is completely different from a complaint under the Convention dealing with ‘equal opportunity’ or ‘discrimination’ requires careful analysis. Regardless of how the appellant’s argument is formulated, the essential subject matter of the complaint is the same, namely his compulsory retirement, based upon his age, pursuant to s 76V.

44 There is undoubtedly a degree of overlap between the ILO Convention and the ICCPR on this issue. The ILO Convention and the ICCPR are both appended as schedules to the HREOC Act. The ILO Convention focuses more directly upon discrimination in respect of employment, and is therefore more obviously relevant to the appellant’s case. That was certainly the view of Commissioner Sidoti who, as previously indicated, wrote to the appellant in 1996 noting that the ICCPR did not affirm a right to employment but that the ILO Convention did. It was largely for that reason that the earlier proceedings in this matter were directed towards the question whether the appellant had been discriminated against, in breach of the ILO Convention, rather than whether he had been denied equal protection under the ICCPR.

45 It is true, as the appellant submitted, that he sought to invoke the ICCPR from the time he first lodged his complaint, on 5 June 1996. In his letter of that date, he stated his belief that s 76V was invalid, and had been invalid since 1980, the year that the Fraser Government ratified the ICCPR. He referred specifically to art 26, noting that the purpose of his submission was to meet a requirement of the Human Rights Commission in Geneva that a ‘petitioner’ must have exhausted all local remedies for the alleged infringement of rights before approaching that body.

46 However, once Commissioner Sidoti refocused the appellant’s complaint upon the Convention, neither he, nor anyone else, paid any real attention to the ICCPR. It was not until years later, after Commissioner Ozdowski had rejected his complaint, and the decision had been upheld by Moore J, and then again by the Full Court, that the appellant sought to revive his complaint by directing it back to its original roots in the ICCPR. The President’s decision to refuse to further investigate the complaint must be seen against that background.

47 The President accepted, correctly in our view, that the expression ‘or other status’ in art 26 encompasses discrimination on the basis of age. When understood in that light, there is little, if any, difference in substance between the protection afforded under that Article of the ICCPR, and the protection given under the ILO Convention.

48 The President’s decision reflects that fact. In summary, he noted that the appellant’s allegations in relation to a breach of human rights under the ICCPR were set out in his letter to HREOC dated 6 February 2003. He claimed that Commissioner Ozdowski, and HREOC, had acted in a way that was inconsistent with, or contrary to his right to equality before the law, under art 26.

49 The President observed that the appellant appeared to be arguing that his complaint should also be considered under s 11(1)(f) of the HREOC Act. That section provides that one of HREOC’s functions is to ‘inquire into any act or practice that may be inconsistent with or contrary to any human right’. However, Commissioner Ozdowski had noted that as far back as September 1996, Commissioner Sidoti had determined that the appellant’s complaint should be regarded as having invoked the ILO Convention, and therefore as having been brought pursuant to s 31(b) (which gives HREOC the function of inquiry into ‘any act or practice ... that may constitute discrimination’), rather than s 11(1)(f). Commissioner Ozdowski considered that it would therefore be inappropriate, after all that had occurred, to inquire further into the complaint under s 11(1)(f).

50 It was in the context of the entire history of this matter that the President determined that HREOC would not inquire further into the appellant’s complaint. The President said that he regarded the appellant’s case as ‘misconceived and lacking in substance’. His explanation for that view was straightforward. There was no evidence before him to suggest that in deciding not to inquire into the allegations of a breach of human rights, HREOC or Commissioner Ozdowski subjected the appellant to ‘an act or practice’ in its administration of the HREOC Act that discriminated against him on the basis of any of the grounds listed in art 26. That of course included age.

51 The President said that he regarded the appellant’s complaint of a breach of human rights as essentially the same as his complaint of age discrimination in employment or occupation. Both complaints arose directly out of the terms of s 76V, and the Secretary’s refusal to grant him an age extension.

52 The President concluded that all of these issues had been ‘extensively and exhaustively’ dealt with. In arriving at that conclusion he invoked ss 20(2)(c)(iii), 20(2)(c)(v), 32(3)(c)(iii) and 32(3)(c)(v) of the HREOC Act. There had been a hearing before the Industrial Relations Court, four separate hearings before the Federal Court, and an inquiry and report under s 35 of the HREOC Act. Nothing more was warranted. The President had therefore decided not to inquire further into the appellant’s allegations.

53 The President added that it would make not the slightest difference to his decision if the appellant’s complaint were characterised as involving a breach of his human right to equality before the law, rather than age discrimination under the ILO Convention. While s 76V(1) was ‘clearly discriminatory’, it operated automatically of its own force. Compulsory retirement under that provision did not involve an ‘act or practice’ within the meaning of s 11(1)(f): Secretary, Department of Defence v Human Rights and Equal Opportunity Commission (1997) 78 FCR 208 at 212 per Branson J. The President noted that her Honour’s reasoning had been approved by Wilcox J in Commonwealth of Australia v Peacock [2000] FCA 1150; (2000) 104 FCR 464 at [41].

54 The President observed that both Branson J and Wilcox J had determined that a person affected by s 76V(1) could not compare his or her position to persons in respect of whom the subsection did not apply. He accepted that Wilcox J had rejected as possible comparators not merely younger officers, but also other officers approaching the age of sixty-five years who might be seeking extensions. There was therefore no relevant comparator in relation to whom the appellant had been denied equality.

55 The President dealt with various other complaints raised by the appellant. It is unnecessary to set out his reasons for rejecting them. They are not the subject of any grounds of appeal to this Court.

56 In the final analysis, the President concluded that despite the appellant’s strong sense of injustice and disappointment, given that at the relevant time s 76V(1) ‘was clearly discriminatory’ (and meant that the appellant retired not at a time of his choosing), there was nothing more that HREOC could do for him in relation to that matter. HREOC could only investigate complaints that came within its jurisdiction. That did not include matters that arose by reason of the automatic operation of legislation. Not did it include acts that arose in the exercise of judicial or legislative functions of the Commonwealth.

57 The Federal Magistrate set out in some detail the history of the appellant’s complaints. He noted that the grounds of review contained in the amended application were somewhat narrower than those originally filed. The amended grounds were as follows:

‘3. Grounds

The grounds of the Application are that:

(a) HREOC failed to appreciate that the Applicant’s complaint was not one of age discrimination per se but of equality before the law in respect of age discrimination. The Applicant has been denied equality pursuant to three Acts, The HREOCA 1986, the "statutory grounds of discrimination" in the Industrial Relations Act 1988 and the PSA 1922.
(b) HREOC did not take cognizance of the fact that the rights and obligations enshrined in the Covenant (and Schedule 2 of the Act is declared in s 3(i) to be the Covenant as it applies in relation to Australia) are separate and distinct to those of the Convention. Pursuant to the Covenant the Commonwealth has undertaken "to respect and to ensure to all individuals subject to its jurisdiction the rights recognised in the Covenant" (Art 2(1)). The failure or refusal of the Commonwealth to honour its undertaking was an act of omission as defined in s3(3) of the HREOCA 1986. As such it meets the criteria of an "act for purposes of s11(1)(f)).
(c) The right to equality before the law and an effective remedy for a denial of this right (and both the Court and HREOC have conceded the discrimination before the law) are basic human rights enshrined in The Universal Declaration of Human Rights (see Clauses 7 and 8 of the Declaration) and in the Covenant. As HRC Geneva sees it the Commonwealth has guaranteed the "Applicant" these rights by ratifying the Covenant.
(d) It is not possible, pursuant to the external affairs power (s 51(xxix) of the Constitution), to enact a law purporting to give effect to a treaty but inconsistent with it. If the HREOC, as the "competent tribunal" established to implement the Covenant, does not meet the criteria or requirements of the Covenant then the HREOCA 1986 is invalidated.
(e) The President, in his review of Ozdowski C’s decision not to inquire into the Applicant’s original complaint under s11(1)(f) of the HREOCA made further findings of fact which, with respect, he was not entitled to do in the absence of further inquiry pursuant to s11(1)(f).
(f) The Applicant relies, inter alia, on the following grounds from s5 of the AD(JR) Act 1977
5(1)(b) required procedures were not observed.
5(1)(f) the decision involved an error of law.
5(1)(j) the decision was otherwise contrary to law.
5(1)(e) / 5(2)(d) the exercise of a discretionary power in bad faith.
5(1)(e) / 5(2)(b) failing to take a relevant consideration into account.

Grounds (e) and (f) are explicated overleaf at ps 2(a) and 2(b).’

58 His Honour then referred to the President’s reasons for decision. It is fair to say that, in substance, he accepted those reasons as providing a proper justification for HREOC’s decision not to inquire further into the complaints. He noted that under the HREOC Act, the President had no power to review Commissioner Ozdowski’s decision dismissing the appellant’s complaints. That decision had already been subject to review by Moore J, and on appeal, by the Full Court. If the appellant wished to argue that Commissioner Ozdowski had failed to appreciate that the true basis of his complaint was not one of age discrimination, but rather one involving a breach of human rights, he ought to have raised that point in the course of those judicial review proceedings. The nearest that the appellant had come to raising the matter was before the Full Court. However, even there, it had not been argued in the manner in which the appellant now sought to put it.

59 The Federal Magistrate also noted that the appellant had had the opportunity to institute an appeal against the judgment of Wilcox J, but had not done so. His application for an extension of time had been rejected. That was the end of the matter, at least so far as the Federal Magistrate was concerned.

60 It followed, so the Federal Magistrate found, that the President had acted properly in concluding that the subject matter of the appellant’s claim was both misconceived and lacking in substance, and had been ‘adequately dealt with’ by HREOC. In effect, his Honour accepted the President’s conclusion that merely reclassifying his complaint, and seeking an inquiry under a different section of the HREOC Act, did not make that complaint a new one, or one that could not have been raised previously. In his Honour’s words:

‘In summary I do not consider that any of the grounds for review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 suggested by Mr Peacock have been made out. When one tears away all the confusing argument his case is a simple one. He says that his original complaint against Mr Ayres should have been looked at in a manner in which it was not. That failure could have resulted in him being wrongfully discriminated against and he was entitled to an inquiry as to whether that was the case. He claims he did not get that inquiry. But the reason he did not get that inquiry was not because of the discriminatory action of Commissioner Ozdowski or of any reviewable error on the part of President von Doussa. It was a result of him not raising the matter in the way in which he now seeks to put it when he made his original complaint. He became boxed in by rulings given in respect of the complaints he had made and by the reluctance of courts to grant him a new hearing every time he thought of a different way in which to put his argument. I too am bound by those decisions.’

CONCLUSIONS ON THE APPEAL

61 The President’s reasons for declining to inquire further into the appellant’s complaints are comprehensive, and answer all of the points raised on the appeal, with the exception of that involving HREOC’s role before the Federal Magistrate.

62 In a sense, that concludes the matter on appeal. As noted earlier, the appellant accepted, correctly in our view, that his appeal could not succeed unless the Federal Magistrate erred in dismissing the substantive grounds for judicial review. Because it is this Court’s opinion that the Federal Magistrate not only did not err, but was right to dismiss the application for judicial review, the ground of appeal complaining of the Federal Magistrate’s direction to HREOC to participate in the application before him does not strictly need to be answered. However, the point achieved some prominence during argument and it may be helpful to address it.

63 It is to be noted, as we have said earlier, that the complaint on appeal relates to the Federal Magistrate’s direction to HREOC to take an adversarial role to rebut the applicant’s application. There is no complaint, as such, regarding HREOC’s ultimate decision to submit to the direction of the Federal Magistrate.

64 In Hardiman, the prosecutor seeking the issue of the prerogative writs before the High Court was the Australian Labor Party. The contradictor was the applicant in the Australian Broadcasting Tribunal seeking approval of its acquisition of half the shares in a company which had a shareholding interest in a licensee.

65 One of the principal issues before the High Court was the manner in which the Australian Broadcasting Tribunal had conducted the inquiry.

66 It can be seen from the argument of Mr T.E.F. Hughes QC, who appeared for the Tribunal in the High Court, that the Tribunal appeared for the purpose of justifying the manner in which it had conducted the hearing.

67 The matter was part-heard before the Tribunal and if a prerogative writ were to be granted (which it was), the matter had to go back before the same Tribunal.

68 In the circumstances of that case, it is easy to understand why the High Court would have concluded that it was inappropriate for the Tribunal to be represented on the application for the issue of the prerogative writs.

69 The position might be different, however, where there is no contradictor. In Fagan, Brennan J said at 681:

‘But where the proceedings before the Tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf. Corporate Affairs Commission v Bradley) and neither a law officer nor a public official observed by the Court (cf. Reg v Cook; Ex parte Twigg), it may be desirable that the Tribunal should appear by counsel to make such submissions as it thinks calculates to assist the Court and, in an appropriate case, to argue against the applicant’s case.’

70 Here, HREOC sought to submit to the jurisdiction of the Federal Magistrates Court but was directed to appear.

71 In the absence of any contradictor or any of the parties referred thereto by Brennan J, and in the face of the Federal Magistrate’s direction, HREOC had no real choice other than to comply with the direction.

72 We note that one of HREOC’s functions is to seek leave of the Court to intervene in proceedings that involve discrimination issues: s 31(j) of the HREOC Act.

73 In these circumstances, we are of the view that there is nothing that HREOC could have done before the Magistrate, except assist as directed.

74 It was entirely understandable that the Federal Magistrate should have been concerned to ensure that a contradictor be available to lend some coherence to a proceeding that involved a number of potentially complex issues. Nonetheless, his Honour’s direction to HREOC to adopt an adversarial role in the proceeding before him gave rise to serious difficulties.

75 We do not know precisely what steps HREOC took to have the Commonwealth or the Attorney-General take the position of contradictor before the Magistrate. Nor do we know whether HREOC took any such steps prior to the hearing of the appeal to this Court. The Attorney-General certainly was entitled to intervene if he wished: s 78A Judiciary Act. If the Attorney had elected to intervene he would thereby have become a party to the proceeding: Cheesman v Waters (1997) 77 FCR 221.

76 HREOC is an arm of the Executive. It is normally the case that when a Minister’s decision is challenged by way of judicial review, the Minister is represented by counsel, and takes an active role in defending that decision. However, a body like HREOC is not to be equated with a Minister, or other senior government official. It is required by statute to carry out a series of important functions. One of its main roles is the task of conducting inquiries into whether there has been unlawful discrimination. This includes discrimination on the part of government officials. HREOC must be independent of government. It must be, and be seen to be, impartial. When one of its decisions is challenged by way of judicial review, it should ordinarily be the case that either the Commonwealth, or the Attorney-General, has the carriage of the proceeding. That is very much in HREOC’s own interests, but more importantly it is also in the interests of the proper administration of justice. The Court must be assured, wherever possible, that any argument presented in defence of HREOC’s conduct is that of a dispassionate advocate, and not that of a determined adversary.

77 We do not know why the Commonwealth or the Attorney-General, if in fact his assistance was sought, did not seek to intervene to uphold those principles.

78 HREOC’s difficulty was compounded because on this appeal it once again was obliged to adopt an adversarial role. Counsel for HREOC found himself in the invidious position of having to justify its previous role before the Federal Magistrate, calling in aid its reluctance to do any more than submit to the jurisdiction of the Court, and his Honour’s insistence that it do more, and adopt a central role.

79 Those difficulties were exacerbated by what transpired before this Court. On one occasion during argument, the Court asked counsel whether he had any submission to make regarding the correctness or otherwise of the reasoning contained in [43] of the judgment of Wilcox J which we have set out at [8] above. The Court also raised with counsel any submission that he might wish to make in relation to the correctness, or otherwise, of the judgment of Moore J in the application for review of Commissioner Ozdowski’s decision. Counsel replied that he had no instructions on either matter. Understandably, he felt constrained from making any submission. Regrettably, that was of little assistance to the Court. Counsel’s reluctance to be heard on these matters may have been brought about, in part at least, by the fact that HREOC had interpreted these decisions in a particular way, and acted upon that basis. Had the Commonwealth or the Attorney-General been joined as a party, or otherwise intervened, their counsel may not have been under these constraints.

80 In any event, as we have previously indicated, there is no basis for the appellant’s contention that the President erred in law, still less that any error was jurisdictional in nature, in deciding, as he did, that the appellant’s claim was misconceived or lacking in substance, or had been otherwise adequately dealt with. The Federal Magistrate was correct to dismiss the application for review. Accordingly, the appeal to this Court must also be dismissed.

81 We would not wish to leave this case without making several additional observations. The appellant’s legal submissions are based upon a series of misconceptions that are quite fundamental. Notwithstanding that fact, the President acknowledged his genuine sense of grievance, and recognised that s 76V(1) had been clearly discriminatory. We can understand the appellant’s frustration at having been compulsorily retired simply because he had reached the age of sixty-five. That is an age at which many individuals can, and do, function effectively. That fact has now been recognised with the repeal of the section.

82 Notwithstanding the appellant’s understandable feelings regarding what had occurred, the time has come for him to accept that there is no basis in law for any further challenge to the decision taken in 1996 that required him to retire. Moreover, he has exhausted all legitimate avenues for review of HREOC’s response to his complaints regarding that decision.

83 The appellant’s claim before the Federal Magistrate failed principally because it involved an attempt by him to litigate again matters that had already been finally and conclusively determined against him. Although his Honour did not refer in his reasons for judgment to ‘Anshun estoppel’ (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589), that case was cited during the course of argument below. There is no doubt, in our minds, that his Honour could properly have invoked Anshun as a basis for refusing to grant the appellant relief. His claim, as formulated before the Federal Magistrate, was so closely connected with the subject matter of the various proceedings before Wilcox J, before Moore J, and before the Full Court on appeal from Moore J, that it would clearly have been an abuse of process to allow that issue to be agitated again. As the High Court has recently observed, albeit in a somewhat different context, there must eventually be some finality to litigation: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.

84 In the light of these reasons, there is no reason why the appellant should not pay the respondent’s costs.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Weinberg, Jacobson and Lander.

Associate:

Dated: 24 March 2005

	The appellant appeared in person
Counsel for the Respondent:	Dr J. Kirk
Solicitor for the Respondent:	Human Rights & Equal Opportunity Commission
Date of Hearing:	23 February 2005
Date of Judgment:	24 March 2005