Background
Four former Australian Defence Force members brought a representative proceeding under Part IVA of the Federal Court of Australia Act 1978 (Cth) against the Commonwealth. They alleged that women serving in the ADF had experienced workplace sexual harassment, sex-based harassment, sex discrimination and victimisation, for which the Commonwealth was directly or vicariously liable under the Sex Discrimination Act 1984 (Cth).
The Commonwealth sought interlocutory relief on three grounds. It argued that current ADF members could not participate without written consent because they were officers of the Commonwealth under s 33E(2)(d); that the pleaded claims did not satisfy the commonality requirements in s 33C(1); and that specified allegations fell outside the scope permitted by s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) because they were not the same as, or the same in substance as, the discrimination addressed by the terminated Australian Human Rights Commission complaint.
The Court’s Holding
Justice Abraham dismissed the Commonwealth’s interlocutory application. The Court held that current ADF members are “officers of the Commonwealth” for purposes of s 33E(2)(d), but women falling within the pleaded group definition participate to enforce private statutory rights arising from alleged discrimination, not in their capacity as Commonwealth officers. They therefore need not give written consent to become group members.
The Court also held that the pleading satisfied the s 33C(1) gateway. The claims arose from sufficiently same, similar or related circumstances and raised a substantial common issue, including allegations concerning a single deemed employer, a unified chain of command and disciplinary system, and ADF-wide policies and practices.
Finally, the Court treated the terminated AHRC complaint as a single representative complaint alleging systemic discrimination, rather than as four isolated individual complaints. Read in that context, the challenged allegations—including additional incidents, locations and particulars—arose from substantially the same acts, omissions or practices that were the subject of the terminated complaint and fell within s 46PO(3). The Commonwealth was ordered to pay the applicants’ costs.
Key Takeaways
- Current ADF members are officers of the Commonwealth under s 33E(2)(d), but that status does not require them to opt into a class action when they participate to vindicate private discrimination rights rather than in their official capacity.
- Individual differences among alleged incidents do not necessarily defeat the Part IVA gateway where the pleading identifies related systemic circumstances and a substantial common issue.
- A representative AHRC complaint must be read as a whole and without the strictures applied to a court pleading; later allegations may proceed if they arise from substantially the same acts, omissions or practices.
Why It Matters
The decision permits the proposed ADF discrimination class action to continue without requiring current service members to provide written consent. It also rejects a narrow approach that would have confined the proceeding to incidents closely matching those personally experienced by the four named complainants.
More broadly, the judgment explains how Part IVA’s class-action requirements interact with the AHRC Act’s complaint process in systemic discrimination cases. A representative complaint can support court claims involving additional affected people and factual instances when those claims remain within the substance of the discrimination presented to the AHRC.