Bereaved gay man takes next-of-kin discrimination case to Supreme Court


Tasmania Ben Jago discrimination case
Photo: Supplied

A bereaved man’s years-long battle against the Tasmanian government after he was denied next-of-kin rights has been heard in the Supreme Court in Hobart.

In 2015, the state’s Coroner failed to recognise Ben Jago as the next of kin of his deceased partner, Nathan Lunson, despite acknowledging they shared a “significant relationship” and same-sex relationships being recognised as equal under state law for over a decade.

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Jago, who was engaged to Lunson, was denied access to see his fiance’s body or, initially, attend his funeral. After negotiations between their respective families, he was seated at the back of the funeral with Lunson’s friends.

Jago subsequently lodged a discrimination complaint, but it was blocked by the Tasmanian Government and the Anti-Discrimination Tribunal on the basis that the Coroner’s Office is immune to any such legal action, unless they’ve acted in “bad faith”.

Ben is now seeking to have the block removed by appealing to the Supreme Court, and the first hearing was held last Monday.

At the hearing, Jago’s barrister, Ron Merkel QC, described the decision not to recognise him as Lunson’s next-of-kin as “Kafka-esque”.

The Coroner had decided that Ben could only be next-of-kin if he and Nathan had a Deed of Relationship, a Tasmanian civil partnership.

But the court heard this was incorrect because same-sex partners without Deeds of Relationship have had full spousal rights under state law, including recognition as next of kin, since 2003.

Merkel argued against the legal immunity of the Coroner’s Office, as Jago is claiming discrimination by the organisation, not an individual within the Coroner’s Office.

Merkel also alleged that the decision not to proceed with Ben’s discrimination case was made with reference to only one or two of the eighteen relevant legal documents.

Solicitor for the Attorney-General Jenny Rudolf argued the immunity protections in two pieces of state legislation – the Magistrates’ Act and the Coroners Act – did apply in this case, the Examiner reported.

Rudolf told the court Jago was side-stepping the immunity protection by naming the Magistrate’s Court as the respondent in the matter, instead of an individual within the Coroner’s office.

Rudolf “vigorously denied” any claim that the Court had refused to bring forward evidence of any member acting in “bad faith.”

A Tasmanian government spokesperson last month said it was not appropriate to comment on the ongoing legal proceedings.

Crowdfunding for legal costs

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Jago said all he wanted was to “make my case that I suffered discrimination, and to do my best to make sure this doesn’t happen to anyone else.”

“It’s great we have marriage equality, but there is still discrimination against same-sex couples that must be challenged,” he said.

Equality Tasmania says Jago’s case is not the first time the Tasmanian Coroner’s Office has failed to recognise the legal spousal rights of same-sex partners.

Following a similar case some years before Ben’s, that also ended up before the Anti-Discrimination Commissioner, the Coroner’s Office agreed to have its officials undertake training in LGBTIQ legal rights, the group said.

The group expects the Supreme Court to deliver its verdict on the case soon.

Jago’s legal team, including Ron Merkel, are providing their services pro bono in the case.

Equality Tasmania has set up a GoFundMe page to try and raise $20,000 to cover the costs if he loses the case.

If Jago wins, he will donate the money to local LGBTIQ organisations.

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