Court rejects challenge to discrimination decision on basis of sex and marital status

On 17 November 2010, Simon Margan lodged a complaint with the Australian Human Rights Commission (AHRC) alleging discrimination on the basis of sex and marital status, following the refusal of government entities to register same-sex marriages.

Mr Margan stated that the complaint was lodged on behalf of a number of homosexual and bisexual men and women and transgender and intersex people.

On 9 July 2012, the AHRC terminated Mr Margan’s complaint on the basis that it was misconceived and/or lacking in substance. Mr Margan subsequently applied to the Federal Court, requesting that the Court overturn the AHRC decision and issue a writ of mandamus to prevent the registration of marriages in a discriminatory way.

[A writ of mandamus (Latin for ‘we command’) is a court order that requires an inferior court, tribunal, public body or official to perform a duty that it has failed to perform.]

On 20 August 2012, the respondents – including the Queensland Attorney-General – were successful in having Mr Margan’s Federal Court application struck out. Mr Margan then made a second application to the Federal Court, in which he sought the same relief as in his first application.

On 21 February 2013, the respondents (including the State of Queensland, replacing the Queensland Attorney-General as a respondent) were again successful in having Mr Margan’s further Federal Court application struck out, with costs.

Specifically, Justice Jagot found [at 24]: “By statutory definition, persons of the opposite sex may marry and persons of the same sex may not. The redress for these circumstances lies in the political and not the legal arena because what would be required is a change to the definition of ‘marriage’ in s.5 (1) of the Marriage Act.”

Mr Margan subsequently sought leave to appeal this decision.

On 18 June 2013, the Federal Court dismissed Mr Margan’s leave application, with costs. In his judgment, Griffiths J recognised [at 51] that Mr Margan apparently now intends to seek leave to intervene in some proceeding in the High Court in order to address the Court on the issue of whether the same-sex marriage exclusionary marriage registration scheme infringes constitutionally protected human rights.

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Published: 10 September 2013