On the Case: Issue 23

Is the system of registering marriages in Australia discriminatory?

In this edition of On the Case, Professor Michael Quinlan, Dean of the School of Law, Sydney discusses the Margandecision of Justice Jagot of the Federal Court of Australia1. Although this case is now a few years old, given the continuing controversy over the definition of marriage currently contained in the Marriage Act, 1961 (Cth), the case remains relevant and worth knowing about.

Background

This is a decision of Justice Jagot of the Federal Court of Australia. It is an Australian case about marriage and discrimination. It concerned a complaint made to the Australian Human Rights Commission (AHRC) by Simon Margan (Margan) “on behalf of homosexual and bisexual men and women and transgender and intersex persons claiming unlawful discrimination based on sex and marital status contrary to the Sex Discrimination Act 1984 (Cth) by reason of the inability of those persons to register same sex marriages in the States of New South Wales, Queensland, Victoria, South Australia and the [ACT].”2 He also complained of unlawful discrimination under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). There were a few procedural issues with this case which can cause some confusion so this On The Casedeals with those first.

Procedural issues

Mr Margan first complained to the AHRC of discrimination on the grounds of sex and of marital status under the Sex Discrimination Act 1984 (Cth). The AHRC terminated this complaint. Mr Margan then had two potential ways of proceeding. One way would be to appeal from the AHRC’s decision to the Federal Court relying on s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). This path involved identifying grounds within that section essentially showing that the AHRC had made an administrative error and appealing from the AHRC’s decision to the Federal Court from that decision. Section 5 of the ADJR Act provides that:

  1. A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
    1. that a breach of the rules of natural justice occurred in connection with the making of the decision;
    2. that procedures that were required by law to be observed in connection with the making of the decision were not observed;
    3. that the person who purported to make the decision did not have jurisdiction to make the decision;
    4. that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
    5. that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
    6. that the decision involved an error of law, whether or not the error appears on the record of the decision;
    7. that the decision was induced or affected by fraud;
    8. that there was no evidence or other material to justify the making of the decision;
    9. that the decision was otherwise contrary to law.

This means that an administrative law challenge relying on the ADJR Act was one approach potentially open to Mr Margan. If this complaint had succeeded the AHRC’s decision to terminate Mr Margan’s complaint would have been set aside and the AHRC would then need to determine the complaint correctly Where an unlawful discrimination complaint is terminated by the AHRC s46PO of the AHRC Act also gives an affected person the right to make their unlawful discrimination complaint directly to the Federal Court in which case that court will determine if the unlawful discrimination has occurred.. This section provides that:

  1. If:
    1. a complaint has been terminated by the President under section 46PE or 46PH; and
    2. the President has given a notice to any person under subsection 46PH
  2. in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

What Mr Margan did was to commence two separate sets of proceedings and to seek both judicial review by the Federal Court of the AHRC decision relying on the ADJR Act (which he sought leave to commence outside the statutory timeframe) and also to allege unlawful discrimination directly to the Federal Court under s46PO of the AHRC Act. So the first question Justice Jagot had to deal with was a procedural question: could Mr Margan run both cases before the Federal Court. On this question Justice Jagot found against Mr Margan.

Dismissal of ADJR Act appeal

Section 10(2)(b)(ii) of the ADJR Act gives a Federal Court judge a discretion to dismiss proceedings where “adequate provision” is made under another law. Justice Jagot found that s46PO of the AHRC Act gave Mr Margan “adequate provision” and that it was an abuse of process for Mr Margan to commence proceedings seeking relief under s46PO of the AHRC Act whilst at the same time seeking leave to challenge the AHRC’s termination of his complaint under the ADJR Act, s10(2)(b)(ii) applied and she dismissed Mr Margan’s ADJR Act proceedings. Justice Jagot found that it Is a form of abuse of process to seek judicial review of an AHRC decision under the ADJR Act if you have exercised rights of review under s46PO of the AHRC Act3 . ([13]).

Application under s46PO of the AHRC Act.

Having dismissed the ADJR Act proceedings Justice Jagot then considered Mr Margan’s application under s46PO of the AHRC Act. The States and the Commonwealth successfully argued that these proceedings should be summarily dismissed under s31A(2) of the Federal Court of Australia Act 1976 (Cth) because they had no reasonable prospects of success. The reasons for Justice Jagot’s finding that Mr Margan’s case was hopeless is the key significance of the case. Justice Jagot considered Mr Margan’s complaints of discrimination on the grounds of sex and of marital status under the Sex Discrimination Act 1984 (Cth).

Sex discrimination

Section 5(1) of the Sex Discrimination Act 1984 (Cth) deals with sex discrimination and it provides that:

5. (1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of:
  1. the sex of the aggrieved person;
  2. a characteristic that appertains generally to persons of the sex of the aggrieved person; or
  3. a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

Justice Jagot found that there was no sex discrimination within the terms of this Act when the agencies of the State registered only marriages within that term as defined in s5(1) of the Marriage Act 1961 (Cth) being marriages voluntarily entered into between a man and a woman voluntarily for life. There was no sexual discrimination because men and women were treated equally under this legislation. The judge put it this way:

In the terms of s5 [of the Sex Discrimination Act 1984 (Cth)] there cannot be discrimination by reason of sex of a person because in all cases the treatment of the person of the opposite sex is the same. Hence a man cannot enter into the state of marriage with a man just as a woman cannot enter into the state of marriage with a woman4.

Marital status discrimination

Justice Jagot then considered the claim of discrimination on the basis of marital status. At the time of this decision s 4(1) of the Sex Discrimination Act 1984 (Cth) defined “marital status” in this way:

The condition or status of being:
  1. single;
  2. married;
  3. married, but living separately and apart from one’s spouse;
  4. divorced;
  5. widowed; or
  6. the de facto spouse of another person5

Section 6 of the Sex Discrimination Act 1984 (Cth) provided that:

  1. For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, by reason of:
    1. the marital status of the aggrieved person; or
    2. a characteristic that appertains generally to persons of the marital status of the aggrieved person; or
    3. a characteristic that is generally imputed to persons of the marital status of the aggrieved person;
      the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

Justice Jagot found that no one was being treated any differently because of their marital status (that is the status of being married under the Marriage Act, 1961 (Cth) because the complaint was really that certain people did not have that status because they were not married under the Marriage Act,1961 (Cth). So in relation to the claim of discrimination on the basis of marital status she found that the inability of persons of the same sex to be registered as married does not involve unlawful discrimination on the .basis of their marital status6. As she explained:

It is equally apparent that the marital status of a person as defined is irrelevant to the treatment about which Mr Margan complains. It is the definition of “marriage” in the Marriage Act which requires that, to be a marriage (and thus capable of registration as such by State agencies), the union must be “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. The marital status of a man wishing to enter into a union to the exclusion of all others voluntarily entered into for life with another man or of a woman wishing to enter into a union to the exclusion of all others voluntarily entered into for life with another woman is irrelevant. The facts do not involve any alleged less favourable treatment on this basis7.

Unlawful discrimination under the AHRC Act

Finally Justice Jagot considered the complaint of unlawful discrimination relying on the AHRC Act. Section 3(1) of the AHRC Act defines "unlawful discrimination as "any acts, omissions or practices that are unlawful under [relevantly] Sex Discrimination Act 1984 (Cth). Justice Jagot found that to an “act” or a “practice” for these purposes required that the person about whom the complaint was made exercised a discretion in so acting or in so practising8. In doing so she applied the reasoning of the decision of Department of Defence v Human Rights & Equal Opportunity Commission9. Justice Jagot found that as no exercise of discretion is involved by a State agency in registering as marriages only marriages which are within the definition of the Marriage Act, 1961 (Cth) the refusal to register as marriages any relationship outside that definition is not “unlawful discrimination” as that term is defined in s3(1) of the AHRC Act10. As Justice Jagot explained:

If, as in this case, the State agencies are able only to register “marriages” as defined under the Marriage Act the State agencies, in not registering same sex unions as marriages, are doing nothing more than applying the definition of “marriage” which the Commonwealth legislation requires. The state agencies are not engaging in any act or practice for the purpose of the definition of “unlawful discrimination”11.

Conclusion and significance

Justice Jagot summed up the significance of the case well when she said:

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 area because what would be required is a change to the definition of “marriage” in s5(1) of the Marriage Act12.

Four years later the definition of “marriage” contained in the Marriage Act, 1961 (Cth) remains unchanged. This case found that that definition is not discriminatory in the sense in which that term is used in current Commonwealth legislation. The question of whether or not the present definition of ‘marriage; is otherwise discriminatory would involve a consideration of “the meaning of the term ‘marriage’, the objectives the State seeks by regulating marriage and whether the State has taken irrelevant considerations into account in so doing.”13 The Court was not required to answer these questions in order to determine the case before us and they remain largely unasked and unanswered in the public discourse in Australia about the potential redefinition of the meaning of the term ‘marriage’ in the Marriage Act, 1961 (Cth) to date.

1Margan v President, Australian Human Rights Commission [2013] FCA 109 (Margan)
2 ibid [2]
3 ibid [13]
4 ibid [23]
5 As quoted ibid [25]
6Margan [27]
7 ibid [27]
8Margan [29]
9 (1997) 78 FCR 208, 212-216
10Margan [29]
11 ibid [29]:
12 ibid [24]:
13 Michael Quinlan, "Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia," (2017) 18 (3) The University of Notre Dame Australia Law Review. 83 Available at: http://researchonline.nd.edu.au/undalr/vol18/iss1/3