Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor [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. 2. Subject to order 4, the matter is remitted to the Human Rights and Equal Opportunity Commission for further consideration according to law. 3. No order as to costs. 4. 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.