Commonwealth of Australia v Human Rights and Equal Opportunity Commission

[1998] FCA 137

FEDERAL COURT OF AUSTRALIA

HUMAN RIGHTS - Whether failure to pay allowance to an officer of the Australian Public Service who was in a stable homosexual relationship constituted discrimination - construction of definition of “spouse” in determination made under the Public Service Act 1922 - whether Human Rights and Equal Opportunity Commission has misconstrued definition.

Commonwealth of Australia v the Human Rights and Equal Opportunity Commission and Muller (NG 671 of 1996), Federal Court of Australia, unreported 27 February 1998, Moore J

COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION &  JEFF KELLAND
NG 755 of 1996

MOORE J
SYDNEY
27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 755 OF 1996

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

JEFF KELLAND
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

27 FEBRUARY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The decisions of the Human Rights and Equal Opportunity Commission of 13 August 1996 that:

(i)the Department of Social Security’s and the Department of Industrial Relation’s practice of interpreting Determination 10 of 1983 so that same sex partnerships would not be recognised for the purposes of the entitlements in question was a practice which constituted discrimination on the ground of sexual preference, and

(ii)it is recommended that the Department of Social Security and the Department of Industrial Relations pay the second respondent $6,380 compensation for loss of allowances suffered by reason of the discriminatory conduct of the Departments;

are set aside.

1. Subject to order 4, the matter is remitted to the Human Rights and Equal Opportunity Commission for further consideration according to law.

1. No order as to costs.

1. Order 2 is to take effect on 27 March 1998 unless, by further order of the Court and the consent of the parties, that order is revoked.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 755 OF 1996

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

JEFF KELLAND
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application by the Commonwealth for judicial review under the Administrative Decisions (Judicial Review) Act 1977 of a decision of the Human Rights and Equal Opportunity Commission (“the Commission”). The issues arising in this application are, in most material respects , the same as issues arising in the Commonwealth of Australia v the Human Rights and Equal Opportunity Commission and Muller (NG 671 of 1996).  I have given judgment in that matter today and my reasons for judgment need to be read in order to understand my conclusion in this matter.  I do not repeat what I have said in the other matter.

Mr Jeff Kelland, was at relevant times, an officer in the Australian Public Service employed in the Department of Social Security located in Darwin.  On 30 May 1990 he lodged a complaint with the Commission alleging that the Department had discriminated against him by denying him access to certain benefits of employment by reason of his sexual preference.  The entitlements in issue were a District Allowance a and Remote Locality Leave fares which were entitlements conferred by Determination No 10 of 1983.  While no express finding was made, it appears to have been common ground that at the time the complaint was made Mr Kelland was living in a stable homosexual relationship with a partner in Darwin.  The relevant provisions in Determination No 10 of 1983, were in summary, that the rate of the District Allowance depended on whether an officer had an eligible dependant.  For present purposes, whether Mr Kelland had an eligible dependant depended on whether his partner satisfied the definition of spouse.  That definition was in the terms discussed in Muller’s case.  Similarly leave fares were payable to Mr Kelland in respect of his cost of travel and that of any eligible dependant.  That again turned on the scope of the definition of spouse.

The approach adopted by the Commission in this matter was substantially the same as that it adopted in the Muller case.  For the reasons I gave in Muller, it was an approach attended by legal error.  I propose to make orders with similar legal effect as those in Muller for the reasons I gave in that matter.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             27 February 1998

Counsel for the Applicant:	Mr P Hanks
Solicitor for the Applicant:	Australian Government Solicitor
Date of Hearing:	3 December 1997
Date of Judgment:	27 February 1998