Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 138

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. Public Service Act 1922, s 33, s 90 Audit Act 1901 s 34A Quilter and Ors v The Attorney General 17 December 1997, New Zealand Court of Appeal, unreported referred to YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395 referred to Baehr v Lewin 852 P2d 44 (Hawaii 1993) referred to THE COMMONWEALTH OF AUSTRALIA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and ROGER MULLER NG 671 of 1996 MOORE J SYDNEY 27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 671 of 1996

BETWEEN: THE COMMONWEALTH OF AUSTRALIA

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

ROGER MULLER

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 17 July 1996 that: (i) the Department of Foreign Affairs and Trade's and the Department of Industrial Relation's practice of interpreting Determination 15 of 1983 so that same sex partnerships would not be recognised for the purposes of the allowances in question was a practice which constituted discrimination on the ground of sexual preference, and (ii) it is recommended that the Department of Foreign Affairs and Trade and the Department of Industrial Relations pay the second respondent $16,161.20 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.