Case summary: The need for a jurisdictional basis for a human rights complaint to access the Federal Court

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A claimant must be able to demonstrate that the Court has jurisdiction to hear and determine the matters in dispute.
Australia Government, Public Sector
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A very limited number of Courts within the Australian Judicial System have what is referred to as inherent power or inherent jurisdiction. Inherent power is the exception rather than the rule. In the vast majority of circumstances Courts will have their powers set out in the relevant legislative regime that created the Courts. That legislative regime determines what matters come before that Court.

The Decision the Federal Court in Rushton v Commonwealth of Australia [2023] FCA 1357 with published Reasons of 7 November 2023 demonstrates the need for a proper basis for the commencement of proceedings.

It is not enough to have a sense of injustice to attract a Court's attention. Any claimant needs to be able to demonstrate that the relevant Court has jurisdiction to hear and determine the matters in dispute.


In this matter Mr Rushton had commenced proceedings in the Federal Court, however, the Commonwealth of Australia, as the Respondent, was successful in having the proceedings summarily dismissed.

It was considered on jurisdiction grounds that Mr Rushton had no reasonable prospect of successfully prosecuting his various claims before the Federal Court.

It was held the Court did not have jurisdiction to hear and determine the claims.

Mr Rushton initiated a complaint before the Human Rights Commission, however, he did not seek to allege he had been the subject of discrimination of a kind of which the relevant Federal legislation permitted a personal cause of action. There are specific requirements under the Australian Human Rights Commission Act 1986 (Cth) ("HR Act").

For instance, he did not allege he had been the subject of age or racial discrimination.

Mr Rushton sought to allege there had been a breach of Human Rights under the International Covenant on Civil and Political Rights ("the Covenant").

Mr Rushton, as part of his factual allegations, related to when he was arrested, charged and detained by ACT Police Officers. He referred to the Police improperly taking his private and intangible intellectual property such as fingerprints and photographs.

The Federal Court was not satisfied that the HR Act conferred on the Federal Court any jurisdiction to deal with the alleged breaches of the Covenant.

The Federal Court stressed its jurisdiction was limited by the Act to complaints of unlawful discrimination under Section 46PO of the HR Act.

What can this decision mean for parties to threatened or actual proceedings?

Access to justice is important, and this clearly includes access to the Court system.

When giving advice, parties always need to be mindful of the proper jurisdictional basis for commencing, maintaining and/or defending proceedings.

If a party is concerned that they have been the subject of conduct which is regulated by the HR Act and/or related legislation, it is important to carefully consider the rights and options so that the claim is put on a proper basis at the outset.

When lodging a complaint form with the Commission, it is vital that you identify the basis upon which you allege you have been discriminated.

It can range from age through to family responsibilities, pregnancy or marital status or gender identity. It includes sexual harassment. Some of these matters might be regarded as overlapping.

You may have a concern that your circumstances involved more than one type of claim. There is significant flexibility in the form to deal with more than one type of claim.

What is important is that the documentation is lodged in a timely way.

It can be more than merely disappointing to be pursuing a matter only to find out it is not properly grounded. In Mr Rushton's case, an Order for costs was made against him.

Carroll & O'Dea Lawyers can assist you in considering your options, including the lodgement of the claim documentation with the Human Rights Commission.

What it is important is that the claim documentation is correctly completed to identify the key components of the complaint.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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