HREOC's failure to investigate age complaint not discrimination

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HREOC's failure to investigate age complaint not discrimination

The Federal Court has rejected a public servant’s allegation that HREOC discriminated against him when it failed to fully investigate a complaint that his age-based compulsory retirement was a breach of his human rights.

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The Federal Court has rejected a public servant’s allegation that HREOC discriminated against him when it failed to fully investigate a complaint that his age-based compulsory retirement was a breach of his human rights.

Background

The applicant, formerly employed by the Commonwealth as Director of Psychology Navy, was required to retire at age 65 and was not granted the discretionary right to remain in employment at a time when the Commonwealth had recognised the discriminatory nature of this provision and was in the process of amending the Public Service Act. The applicant sought and was refused an extension of his period of service. The parties proceeded through a series of HREOC inquiries and Federal Court litigation.

Eight years later, the applicant informed HREOC that he believed Commissioner Ozdowski’s rejection of an initial favourable HREOC report was discriminatory against him and was inconsistent with or contrary to his 'human right of equality before the law'.

The chairman of HREOC, John von Doussa, rejected this claim and refused the applicant’s call for further inquiry into his complaint on the ground that 'there is no evidence that in deciding not to inquire into your allegations of a breach of human rights that the commission or Commissioner Ozdowski subjected you to an act or practice...that discriminated against you ...There is no evidence that this decision constitutes a distinction, exclusion or preference in relation to you that was based on your age or any other relevant ground.'

The applicant then called on the Federal Magistrates Court to review this decision claiming HREOC had discriminated against him by not properly investigating his complaint. The applicant argued that the Commonwealth had released a circular in 1995 advising departments about the review of compulsory age retirement throughout the Public Service.

He said departments other than Defence had updated their policy allowing for discretion in relation to age retirement and that, as a public servant, he was entitled to equal treatment. The applicant argued the decision to retire him had not been made on a 'whole of public service' approach and that this differential treatment was a discriminatory application of the law and a breach of his human rights.

Findings

Federal Magistrate Raphael said there was certainly an argument that the applicant had not been treated equally with other public servants because other departments of state had adopted a far more 'conciliatory approach' to age retirement than Defence. However, he said, this argument had not been put in the applicant’s previous HREOC applications and Federal Court litigation.

The magistrate said that the applicant’s attempt to secure an inquiry as to whether his human right of equality before the law was infringed in some way was 'a matter which could and should have been previously canvassed and can no longer be'. He said the applicant had not provided any evidence that HREOC’s refusal had discriminated against him by failing to recognise that his human rights had been breached.

Federal Magistrate Raphael concluded that the reason the applicant did not get his 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.'

Consequently, the magistrate dismissed the application and ordered the applicant to pay HREOC’s costs.

See: Peacock v HREOC [2004] FMCA 466 (28 July 2004).

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