GLBTI Human Rights Conference: Issues in the Asia Pacific Region
Graeme Innes AM, Human Rights Commissioner
31 January 2008
I begin by acknowledging the traditional owners of the land on which we meet today.
I also thank the organisers of the Asia Pacific Outgames 2008 for the opportunity to speak with you today.
Many communities use sport as a way to build peer friendships, and enjoy favourite activities in an atmosphere which is safe and supportive. Some years ago- too many sadly- I enjoyed a bi-annual Australian cricket carnival played between teams of people who were blind or had low vision. This is exactly what is happening at these games, and I trust that the links and friendships built through the activities will be positive and long-standing ones, as they were for me. I also hope that the competition will be fierce, but show a better spirit of fair play than that demonstrated by Australian and Indian cricketers in the last few weeks. Showing respect for all, whether competitors or team-mates, or whether members of broader society, is what human rights are all about.
For those of you unfamiliar with Australia’s Human Rights Commission, it is an independent government body that protects and promotes human rights.
My role as Human Rights Commissioner is to monitor human rights in Australia. One focus of my work has been promoting equal rights for gay and lesbian couples trying to access the financial entitlements and work benefits that many heterosexual couples take for granted.
It is sometimes easy to judge Australia's human rights record by comparing it to other nations around the world. Find another nation that treats its gay and lesbian citizens more poorly than Australia and some might argue that Australia is a great upholder of gay and lesbian equality. However, as we know, it doesn't and shouldn't work like that. Sure, Australia no longer criminalises homosexual sex like some other countries in our region but there are many other human rights that gay and lesbian people do not enjoy in Australia today.
Human rights are not specific to a country or region; they belong to humans. Therefore the fact that gay and lesbian Australians are significantly discriminated against in Australia is of great concern to me.
There is no one separate human rights treaty focusing on sexuality and gender rights; instead gay, lesbian, transsexual and intersex individuals enjoy all human rights without discrimination.
I was pleased to see in March 2007, that a group of human rights experts developed and adopted what is known as the Yogyakarta Principles. The Yogyakarta Principles confirm that all international human rights laws apply to gay, lesbian, transsexual and intersex people. These principles are important in promoting and protecting the human rights of people who are sexuality and gender diverse.
Many of you would know that the right to non-discrimination and the right to equality before the law are two of the most fundamental principles of human rights law. The United Nations Human Rights Committee has been very clear that these principles apply to gay, lesbian, transsexual and intersex people.
Many of you would also know that there are federal laws in Australia which prohibit discrimination against women, older people, people with disability and people of different races. Unfortunately, there is not yet a federal law that prohibits discrimination against gay and lesbian people.
It might further surprise many of you, that there is a raft of laws on Australia's books which explicitly deny certain rights to gay and lesbian couples, and their children.
In June 2007, the Human Rights Commission launched the final report of our year-long National Inquiry into discrimination against people in same-sex relationships in the area of financial and work-related entitlements.
This Inquiry, known as the Same-Sex: Same Entitlements inquiry, found 58 pieces of federal legislation which discriminate against same-sex couples in the area of financial and work-related entitlements.
We really didn't have to look very hard to find these laws which clearly and explicitly discriminate against same-sex couples in employment, workers' compensation, tax, social security, veterans' entitlements, health care, superannuation, aged care and migration. The discrimination is there, on the statute books, in black and white.
Since today's conference has been made possible by the bringing together of gay, lesbian, bisexual, transgender and intersex sportspersons to compete in the Outgames, let me give you an example of this discrimination in the area of health care. Because while we all like to think our sporting prowess is such that we are immune from failure and injury, we know that is not always the case!
The Medicare Safety Net is designed to provide additional health subsidies to people with high medical costs. The idea behind the Safety Net is that when an individual, couple or family accumulate medical expenses above a certain threshold, the government subsidies will increase. But the Medicare legislation defines a 'family' to include a 'de facto spouse' and the definition of 'de facto spouse' is limited to a person of the opposite-sex.
Those two words - opposite-sex - in the definitions section of the Health Insurance Act mean that same-sex couples have to spend at least twice as much on medical costs before the government subsidies kick in.
It is quite clear that these legislative provisions breach the right to non-discrimination and equality before the law. But they also have the potential to breach a range of other human rights available to people in same-sex families, including the rights of children.
In particular, these legislative provisions have the potential to breach the principles of the best interests of the child in the Convention on the Rights of the Child. Because, after all, when you deny financial benefits to same-sex parents, you inevitably sacrifice the best interests of the children being raised by that couple.
Of the estimated 25,000 plus same-sex couples in Australia, approximately 20 % of lesbian couples, and 5 % of gay male couples, are raising children. Federal laws, and some state and territory laws, fail to recognise both same-sex parents as genuine parents. The consequence is that same-sex families are frequently denied access to entitlements, such as subsidised medical costs, which are intended to help parents financially support their children.
Another example of discrimination involves parental leave entitlements.
We know that minimum workplace entitlements for Australian employees include parental leave. But parental leave is only guaranteed to a male employee who is the spouse of a woman giving birth. This means that there is no guarantee that a lesbian co-mother can take leave to help her partner through the birth of her child and those difficult first few weeks of dealing with a screaming baby!
It is true that many employers do grant parental leave to all parents no matter their sex. But this is not something guaranteed under the law, so a non-biological lesbian parent will have to rely on the good-will and open-mindedness of her employer.
Thankfully there are a few of those employers around. I am happy to note that IBM, a sponsor of this conference, provides its gay and lesbian employees with the same benefits and entitlements available to heterosexual employees. I congratulate them for this.
In September last year, Telstra announced a similar move. At that time, I praised Telstra; commending it as an excellent example of a major Australian company behaving as a good corporate citizen should by providing economic justice for gay and lesbian couples. I also urged the Australian Government to follow this example. That hasn't happened- yet.
To date, those 58 discriminatory laws still remain. However, the Same-Sex: Same Entitlements report was an important part of public debate in the lead up to the federal election last year.
It filled me with great optimism to see that same-sex issues became a commonly talked about election issue. Individual candidates from several parties in some key inner-city Sydney seats were particularly vocal in their promises to end the discriminatory treatment of same-sex people.
All major parties indicated support for the removal of discrimination against same-sex couples in some way. The Australian Labor Party indicated that - if elected - it would address the discrimination in the 58 laws listed in our report. It also said that it would support State relationship register regimes.
The Coalition government had consistently stated that it opposed discrimination against people on the basis of their sexual orientation, and that it would address reforms on a case by case basis.
I remain in discussions with the new Labor Attorney-General about when the 58 laws listed in our report will be amended to remove that discrimination. The Liberal Party, now in Opposition, has also committed to supporting the removal of the discrimination we highlighted in our report. I believe with continued pressure from the community these discriminatory laws will be removed.
Although we couldn't have timed the release of the report better - with a federal election less than six months away - this was not the sole reason the report generated so much community interest and support. The report was powerful because we included the real-life experience of people affected by this discrimination. We collected these stories during our inquiry; spending more than three months travelling around Australia holding public hearings and community forums to hear, first hand, about the impact of discriminatory laws on gay and lesbian couples.
Although we could have produced a report with recommendations about new laws without leaving our offices in central Sydney, we wanted to ensure that real stories about real Australians were heard loud and clear.
We wanted to be able to tell the government and the community at large that laws that discriminate against same-sex couples have a real impact on real people. It is these stories that make the discrimination come alive and our recommendations become imperative.
Let me share two stories with you.
In Canberra we heard from a Commonwealth public servant, Brian McKinlay who talked about superannuation entitlements:
"My long-term same-sex partner and I are 58 and 60 years of age. We are both members of the Australian Public Service; I have been a member for thirty years. On joining the APS, we were each required to become members of the Public Sector Superannuation Scheme (the PSS). Of itself, that is no bad thing.
My salary is double that of my partner and I want to provide security for him should I die before he does. However, unlike other couples, we are unable to provide security to each other through superannuation death benefits … even though opposite-sex de facto partners are eligible.
My partner and I hold all our assets in common - house, mortgage, car, bank accounts, furniture, insurance, etc. Superannuation is the only asset of importance that we cannot share…
This is an extraordinary and hurtful discrimination by the Australian Government against its own employees. Am I any less committed to my partner than a member of a de facto opposite sex couple or a person employed in the private sector?"
In Adelaide we heard from Sue and Leanne Nearmy, who had just become the parents of a five week old child. Sue and Leanne have been together for eight and a half years. They contribute to the community through volunteer work, donations and providing respite care to a foster child. They find it frustrating that they were allowed to care for foster children, yet they were not allowed to adopt children or access assisted reproductive technology. Leanne said the following at the end of her testimony:
“We are an average suburban family. We are working hard and contributing to our community. We don't want special treatment - just what others can expect from their legal and social community. Our rights are denied simply because of who we love. We just want equality."
The Same-Sex: Same Entitlements report was limited to looking at the financial and work related aspects of discrimination faced by same-sex couples. However, during our consultations we also heard many other stories of discrimination faced by the broader gay, lesbian, bisexual, transgender and intersex community that we weren't able to cover in the inquiry report.
For example, we know that people in same-sex relationships have been denied visiting rights to their partners in hospital. We know that same-sex people have experienced harassment in the workplace. We know that people who are transsexual face difficulties in getting appropriate identity documents.
I am committed to continuing to highlight and address these and other blatantly discriminatory practices against gay, lesbian, bisexual, transgender and intersex people. Last year we prepared a short paper which detailed some of the other stories that we were unable to adequately address in the Same-Sex: Same Entitlements report.
HREOC hopes that by sharing these stories, we can start meaningful conversations about how to address gay, lesbian, bisexual, transgender and intersex discrimination, and promote equality. HREOC will be talking with organisations and individuals about these issues over the next few months and considering how these areas of discrimination can be addressed.
Over the past two years I've been incredibly moved by those people in the gay and lesbian community who've made it very clear that there's only one thing that they want: to be treated equally; no more, and no less than any other Australian. Just equal.
The 58 pieces of legislation listed in our report fail the litmus test which all Australians apply, in the schoolyard, the workplace and the sports field- the fair go test. As 71 per cent of Australians agreed in Get Ups Galaxy poll last June, to treat people differently simply because of who they love, is just not fair. As you go home from these games and this conference with high hopes for future similar competitions and conversations, I go with high expectations that this discrimination against Australian same-sex couples will be remedied during the next twelve months.