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Same-Sex: Hearing: Perth

National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits

WRITTEN AND AUDIO NOTES


PERTH HEARINGS, 9 August 2006

1. John von Doussa QC, President, Human Rights and Equal Opportunity Commission - Opening Speech

2. Brian Grieg (Former Federal MP)

Brian Grieg talks about the progress that has been made in Western Australia's laws regarding same-sex couples. He suggests that WA has changed from being a jurisdiction with some of the most draconian laws in the world, to becoming a State with some of the most progressive laws in the world.

Brian Grieg mentions some of the flaws that still exist in WA laws, for example there are exclusions for religious organisations in anti-discrimination legislation. However, Brian Grieg suggests that the real battle is now at the Federal level.

In relation to superannuation, Brian Grieg says that the government had promised the Democrats that it would reform public sector superannuation to include same-sex couples. But it has been 3 years and nothing has happened.

Brian Grieg describes his personal experience of being a gay member of Federal Parliament. He talks about some of the difficulties he faced regarding travel entitlements for his partner when his partner became a staff member. He also talks about various areas where same-sex partners are treated the same as de facto opposite sex couples - like staff relocation benefits. But Brian Grieg emphasises that reform should be comprehensive rather than piecemeal.

Brian Grieg discusses the genesis of the term 'interdependency' in Federal legislation and points out that it is not always clear whether it does or does not include same-sex couples. The term creates unease in same-sex couples because it fails to acknowledge the depth of those relationships. It also places additional hurdles on same-sex couples to prove their relationships. Mr Grieg also notes that the new counter-terrorism legislation is the first, and only, time that the phrase 'same-sex partner' has been used in Federal legislation.

3. Giz Watson MLC (Current MLC in WA)

Giz Watson MLC summarises some of the advancements in WA laws. For example both members of a same-sex couple can be on a child's birth certificate, lesbian couples have access to IVF and gay and lesbian couples can adopt.

Giz Watson explains the advantages of allowing both parents to be on a child's birth certificate - including greater clarity on the death of one partner or on breakdown of the relationship.

Giz Watson suggests that the Federal Parliament follow the WA example in removing discrimination against same-sex couples. However, she also notes several areas that still need to be improved in WA, including:

  • removing the exemption for religious organisations regarding the Anti-Discrimination Act
  • removing criminal defences relating to offensiveness of homosexual advances
  • introducing anti-vilification laws relating to gay men and lesbians
  • reducing the time requirements for proving a de facto relationship for tax purposes. At the moment gay and straight couples have to live together for two years - but straight couples can get married before then if they want to.

Giz Watson reports that the WA Attorney is considering introducing a register for same-sex couples along the lines of the Tasmanian model.

Giz Watson also suggests that the adoption of a Human Rights Charter would address many of the outstanding issues in Australia law. She advocates adoption at the Federal level but, in the alternative, at the State level.

4. Kelly and Samantha Pilgrim-Byrne (Personal Story)

Kelly and Samantha tell the story of how they met and what they are going through to try make a family of their own.

Kelly and Samantha have been trying to conceive for more than three years. Kelly first started with IUI (Inter-Uterine Insemination) at a cost of $200 per month and then needed to increase her treatment so that it cost $400 per month - none of which is covered by Medicare.

When that process didn't work, Kelly started on the IVF (In-Vitro Fertilisation) Program. Each round of IVF costs around $2,500 and she has had six miscarriages. She explains that if you are a recognised as a couple under Medicare you can claim the Safety Net at $1000 combined, but because they are a lesbian couple they have to reach $1000 each. So far they have spent around $30,000 on IVF.

Kelly explains that infertility is hard enough without the financial difficulties that have resulted. She and Samantha have refinanced their house once, and will have to again, as Samantha begins IVF treatment.

Kelly talks about the fact that they are continually asked why they don't adopt. She has to explain that they would adopt in a heartbeat, but gay and lesbian couples aren't recognised by countries relinquishing children to Australia. And while they have registered their interest in local adoption, with only 7 children available last year, and more than 100 opposite-sex couples on the list, they know their chances are slim.

Samantha explains the impact of changes to WA laws regarding recognition of same-sex parents on birth certificates. She explains that she and Kelly had often discussed becoming parents but it wasn't until the legislation changed that they finally agreed to pursue that dream. Samantha describes the burden that was lifted when they knew they would both be recognised as parents - a worry that heterosexual couples never give a second thought. In particular, she says that it has removed their concerns about what might happen to their children in the event that one of them died.

5. Gay and Lesbian Equality WA (GALE WA), Australian Coalition for Equality (ACE)

Rod Swift, Convener of GALE WA and Secretary of ACE

Rod Swift discusses various methods by which discrimination against same-sex couples might be eliminated under Federal law.

Rod Swift suggests that one of the main problems in Federal law is that even when same-sex couples are recognised, they are put in a 'third class' category of 'other relationship'. The hierarchy is first married couples, then de facto couples and then everyone else.

Rod Swift explains some of the difficulties that arise with the 'interdependency' definition and suggests a consistent definition of 'de facto' across all legislation in all jurisdictions (State and Federal) to remove any confusion and stress. He goes through the definitions used in WA and Tasmania as examples.

Another way of addressing the problem would be to permit registration of relationships by the relevant Registry of Births, Deaths and Marriages. The advantage of this method would be that it would catch genuine couples who don't cohabitate (for instance one partner lives in a different State or country for work) and can't meet the usual indicia of de facto relationship.

Rod Swift explains some of the problems that remain in Federal laws, including:

  • Defence - despite improvements to the legislation in December 2005, there are still problems for defence force personnel
  • Medical benefits - the additional difficulties faced by same-sex families in reaching the Medicare safety net. Rod swift points out that a same-sex family has to guess which parent will have more expenses, so that he or she and the child can get to threshold first. There should also be some examination of what happens in foster families.
  • Aged Care - same-sex couples are treated as individuals when entering aged care facility so the family home is not protected. Rod Swift notes that the Council of the Aging and Senior Associations strongly supports that same-sex couples are treated as a couple for this purpose.



  • Audio file for GALE WA and ACE (49 minutes, Mp3 45 MB)
  • Written submission by GALE WA
  • Written submission by ACE

6. University of Western Australia

Beverley Hill, Manager - Equity and Diversity

Malcolm Fialho

Beverly Hill describes the ongoing and serious efforts of the University of Western Australia to make sure that the campus is a place where GLBTI students and staff feel safe, secure and proud to be who they are.

UWA aspires to be a best practice workplace regarding gender and sexuality equality. One of the programs set up to pursue this goal is the ALLY network. The network is a formal sexuality awareness process. Members of the network are trained and then there is an ongoing dialogue between ALLY members, staff and students.

Beverly Hill highlights that the UWA employment policy is explicit about leave entitlements for same-sex couples. For example, the enterprise agreement explicitly says that 'partner' means same-sex partner. And there is 'parental' leave rather than 'maternity' leave.

7. Equal Opportunity Commission of WA

Yvonne Henderson, Commissioner for Equal Opportunity

Yvonne Henderson states that discrimination against same-sex couples has no moral or logical foundation and should be eliminated.

The Commissioner for WA discusses the legislative reform process that has taken place in Western Australia including the introduction of the Acts Amendment (Lesbian and Gay) Law Reform 2002 and a variety of other state legislation (which is covered in the Commission's written submission). She explains that these changes have, for all intents and purposes, removed legislative discrimination in WA.

The Commissioner explains that the law reforms have had a noticeably positive impact on community attitudes and workplace practices. She describes the homophobia displayed in the debates leading up to the law reforms and compares it with the more accepting community attitudes of today. The Commission has received dramatically fewer complaints about discrimination on the basis of sexuality since the reforms.

The Commissioner flags the exception for religious organisations in WA's anti-discrimination legislation as something that may need to be amended in the future.

8. Women in Social and Economic Research (WISER)

Dr Rob Guthrie, Head of School of Business Law, Curtin University

Dr Guthrie talks about the rights of a same-sex partner to workers compensation benefits, where the other partner dies in the course of employment.

Dr Guthrie explains that normally, a partner and any children is entitled to workers compensation death payments. If no person can prove their entitlement to a workers compensation payment, it is totally lost. In WA the payment to a partner is around $150 000, and in other states it is considerably more.

Dr Guthrie explains that in WA, Queensland, the ACT, South Australia and the Northern Territory, legislation specifies that a dependent must be spouse, and that includes someone in a de facto relationship. The legal question then arises as to whether this includes a same-sex relationship. Dr Guthrie notes that there is no evidence of same-sex partners making claims in these States. He believes that this is because they have been advised that they have no claim.

On the other hand, Tasmania has gone to some lengths to make it clear that a same-sex relationship or partnership is included in workers compensation. Similarly, Victoria has clarified that irrespective of gender, a domestic partner is entitled to workers compensation payments.

Dr Guthrie says that Commonwealth legislation stands out as excluding same-sex couples because it requires a dependent to be an opposite-sex partner of the employee. He suggests that the Tasmanian and Victorian models could be used to amend the Commonwealth legislation.

Dr Guthrie notes that employers who are in competition with Commonwealth authorities can now seek a license from the Minister to transfer into Comcare - for example transport drivers. This may result in increased exclusion of same-sex couples from workers compensation benefits.

Dr Guthrie suggests that there is no financial reason for Comcare to deny benefits to same-sex partners. He says that 2000 people are killed at work each year in Australia and Comcare deaths will be a fraction of that 2000. Members of same-sex couples will be a further fraction.