Court clears path for Australian Defence Force sex discrimination proceedings

The Commonwealth has failed in its bid to narrow a class action alleging systemic sex discrimination across the Defence Force.

Federal Court Justice Wendy Abraham has rejected a Commonwealth bid to prevent current Australian Defence Force (ADF) members from participating in the class action proceedings without first providing written consent.

In its interlocutory application, the Commonwealth argued that, under section 33E(2)(d) of the Federal Court of Australia Act 1976, current serving members could not automatically participate because they are “officers of the Commonwealth”.

The class action has alleged a systemic pattern of sexual harassment and discrimination against women serving as ADF members between November 2003 and May 2025.

While Justice Abraham agreed with this characterisation, she did not accept that the group members would be participating in the class action in their capacity as officers of the Commonwealth.

The Commonwealth’s own website has informed members there will be “no adverse consequences” for current or former ADF members arising from their decision to participate in the action.

“That lends support to the conclusion there is no legislative or other restraint in issue given the subject matter of the proceeding.

“This suggests that being a group member in this case is not inconsistent with one’s position as an ADF member and the discharge of their duties,” Justice Abraham said.

The Commonwealth also argued the women’s allegations were too individualised to survive as a representative proceeding, pointing to differences in the alleged conduct, perpetrators, locations, time periods and the circumstances experienced by group members.

It contended the claims should amount to separate disputes rather than matters arising from common circumstances.

Justice Abraham found the Commonwealth had taken an “unduly narrow” approach, having focused on the differences between the claims of individual group members “without appropriately addressing any issues of commonality”.

The claims were connected by more than the fact the women shared a different employer, with group members also subject to the same statutory employment framework, ADF chain of command and disciplinary system, and ADF-wife policies.

Given commonalities between the claims do exist, Justice Abraham said the group members have satisfied the statutory “gateway” for pursuing them in representative proceedings.

Another challenge pursued by the Commonwealth was its claim that allegations made in the court were not included in an earlier complaint made to the Australian Human Rights Commission.

It was ultimately terminated because there were no reasonable prospects of the matter being settled by conciliation, allowing the group members to bring the proceedings to the Federal Court.

Justice Abraham also rejected this argument, finding the complaint needed to be considered in light of the fact it was a representative complaint concerning systemic conduct, rather than treated as a collection of individual complaints and specific incidents.

The allegations made in the Federal Court were sufficiently connected to those made in the original complaint, she added.

Citation: MAN25 v Commonwealth of Australia [2026] FCA 1349.

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