Commonwealth of Australia & Anor v Human Rights & Equal Opportunity Commission & Ors [1997] FCA 664

FEDERAL COURT OF AUSTRALIA Discrimination Law - Sex Discrimination Act 1984 (Cth) - National Health Act 1953 (Cth) - availability of drug for treatment of osteoporosis restricted under the pharmaceutical benefits scheme ("PBS") to a certain category of women - determination upholding complaints against the Commonwealth and Minister for Health and Family Services for discrimination on the ground of sex - whether the Commissioner erred in making the determination without hearing evidence relating to the circumstances in which the drug came to be listed under the PBS and reasons for the limited 'indications' listed - whether a factual inquiry is necessary to establish the causal relationship contemplated by s 5(1) of the Sex Discrimination Act - whether a factual inquiry is necessary to establish whether circumstances are the same or not materially different under s 5(1). ADMINISTRATIVE LAW - judicial review - review of decision of Human Rights and Equal Opportunity Commission - whether decision reviewable.

National Health Act 1953 (Cth), ss 85(1), 85(2), 85(2A), 101. Sex Discrimination Act 1984 (Cth), ss 3, 4, 5, 22, 26, 44, 81. Therapeutic Goods Act 1989 (Cth), ss 3, 4, 6(1), 16, 20, 21. Therapeutic Goods Regulations, reg 36(1), 36(2).

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited. New South Wales Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559, cited. Australian Medical Council v Wilson (1996) 137 ALR 653, cited. Waters v Public Transport Corporation (191) 173 CLR 349, cited. Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, cited. Waterhouse v Bell (1991) 25 NSWLR 99, cited. Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, followed. James v Eastleigh Borough Council [1990] 2 AC 751, cited. Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191, cited. Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, applied. COMMONWEALTH OF AUSTRALIA & ANOR v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ORS NG 203 of 1997