The Commonwealth failed on all three grounds to block the proceeding
A Federal Court judge has cleared the way for a sex discrimination class action against the Commonwealth over conditions in the Australian Defence Force.
The court on September 15, 2026, dismissed every challenge the Commonwealth raised to block the proceeding and ordered the government to pay costs (MAN25 v Commonwealth of Australia [2026] FCA 1349).
Four former female ADF members brought the case on behalf of women who served in the Defence Force between November 13, 2003 and May 25, 2025. They allege sexual harassment, sex-based harassment, sex discrimination, and victimisation during their service, contrary to the Sex Discrimination Act 1984. The Commonwealth is the sole respondent as the deemed employer of all ADF members under that Act.
The case is framed as a systems claim. The applicants allege the Commonwealth failed to maintain adequate policies and practices to prevent discrimination across the ADF and knew there was a real possibility that women serving in the Defence Force would be exposed to unlawful conduct.
The government tried to stop the class action on three grounds. It lost on all three.
The first argument centred on whether current serving members could be included in the class without their individual written consent. Under the Federal Court of Australia Act, certain government officials must actively opt in to a class action rather than being automatically included.
The court accepted that all ADF members - enlisted and commissioned - qualify as government officers for the purposes of that rule. It pointed to their statutory appointment, the military disciplinary framework, and the absence of any civil contract between members and the Commonwealth.
But the judge found that current members are not part of this class action in that official capacity. The discrimination claims involve private rights under anti-discrimination law, not obligations arising from military service. The court noted former members are plainly participating as private individuals, and said it was "difficult to understand" why the same reasoning would not apply to current members.
The court also pointed to the ADF's own website, which states that "no adverse consequences [will result] for current or former ADF members...arising from their decision to participate" in the class action.
The practical result: current serving members are automatically included under the standard opt-out model. They do not need to provide written consent.
The second argument attacked the class action structure itself. The Commonwealth argued the claims were too varied and individual to qualify - pointing to conduct spanning three service branches, locations across Australia and overseas, different alleged perpetrators, and a claim period exceeding 20 years.
The court found the Commonwealth focused on the differences between individual claims while failing to engage with what connected them. The common ground included a single employer, a unified chain of command, one disciplinary system, and ADF-wide policies on unacceptable behaviour that applied across all branches throughout the claim period.
The court found the claims met the threshold for a class action. Substantial common questions arise, particularly around whether the Commonwealth effectively allowed the unlawful conduct to occur, whether it took "all reasonable steps" to prevent it, and what the Commonwealth knew about the risk.
The third challenge argued that parts of the applicants' court filings went beyond what was originally raised in the complaint to the Australian Human Rights Commission, and therefore fell outside the court's jurisdiction.
The court rejected this too. The terminated complaint was a representative complaint alleging systemic unlawful discrimination, and the judge held the legislation could not sensibly be read as allowing a complaint to be accepted and terminated in that form, only to then block its representative character from proceeding to court.
On specific parts of the pleadings the Commonwealth targeted - relating to additional incidents at various ADF bases not expressly named in the AHRC complaint - the court found these were further instances of the same pattern of conduct and fell within the statutory boundaries.
The ruling is a procedural one. It does not determine whether the discrimination claims are made out - those remain to be tested at trial. The class action will now move to the next stage.
