Fisher v Commonwealth of Australia [2023] FCAFC 106

FEDERAL COURT OF AUSTRALIA

Fisher v Commonwealth of Australia [2023] FCAFC 106 File number: VID 545 of 2021

Judgment of: MORTIMER CJ, KATZMANN, CHARLESWORTH, ABRAHAM AND KENNETT JJ

Date of judgment: 12 July 2023

Catchwords: HUMAN RIGHTS – discrimination – special case stated – where applicant an Aboriginal man not yet of the age to qualify for the age pension if Social Security Act 1991 (Cth) is applied according to its terms – where Indigenous men have shorter life expectancy than non-Indigenous men – whether applicant or represented persons enjoy the right to apply for and receive age pension 'to a more limited extent' than non-Indigenous men for purposes of s 10 of Racial Discrimination Act 1975 (Cth) REPRESENTATIVE PROCEEDING – whether applicant and represented persons have same interests in proceeding – where interests of group members in proceeding contingent on future events for practical value

Legislation: Constitution ss 51, 75, 83, 109 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB Federal Court of Australia Act 1976 (Cth) s 24 Invalid and Old-Age Pensions Act 1908 (Cth) ss 15, 16 Invalid and Old-Age Pensions Act 1942 (Cth) s 13 Migration Act 1958 (Cth) ss 476, 478 Native Title Act 1993 (Cth) Racial Discrimination Act 1975 (Cth) ss 8, 9, 10 Social Security (Administration) Act 1999 (Cth) ss 3, 40G, 242 Social Security Act 1991 (Cth) ss 23, 43, 44, 55, 593, 1064, 1065, 1067G, 1067L, 1068, 1068A, 1068B Social Security and Other Legislation Amendment (Pension Reform and Other Budget Measures) Act 2009 (Cth) Social Security Legislation Amendment Act (No 2) 1994 (Cth) Social Services Act 1959 (Cth) Social Services Act 1966 (Cth) Social Services Consolidation Act 1947 (Cth) s 21 Federal Court Rules 2011 (Cth) rr 9.21, 38.01 Aboriginal and Torres Strait Islander Communities (Justice Land, and Other Matters) and Other Acts Amendment Act 2008 (Qld) Alcohol Protection Orders Act 2013 (NT) s 6 Liquor Act 1992 (Qld) Misuse of Drugs Act 1990 (NT) ss 5A, 5D Succession Act 1981 (Qld) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 1, 2, 5 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 9