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Same-Sex: NOTES FROM SYDNEY HEARING

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

WRITTEN AND AUDIO NOTES

SYDNEY HEARINGS, 26 JULY 2006

 


WRITTEN AND AUDIO NOTES

SYDNEY HEARINGS, 26 JULY 2006

 

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

2. ACON (AIDS Council of NSW Inc)

Stevie Clayton, Chief Executive Officer; Anna Bacik, Senior Policy Advisor; Geoff Honnor, President; Adrian Lovney, Board Member;

Australian Federation of AIDS Organisations (AFAO)

Abigail Groves, Policy Analyst; Bridget Haire, Media Officer

ACON and AFAO describe the various areas of discrimination still facing same-sex couples in Australia, including: carers leave, paternity leave, parental rights of non-biological parents, income tax rebates, Medicare, Pharmaceutical Benefits Scheme, superannuation, intestacy, aged care, veteran's entitlements and social security.

Both organisations note that some of these discriminatory laws have a disproportionate impact on people living with HIV/AIDS.

ACON and AFAO acknowledge that some laws have been improved by introducing a definition of 'interdependency' that could encompass same sex couples. However they also suggest that real equality will only come when same sex relationships are fully recognised. ACON suggests that 'interdependency' is a 'back door' way to equality.

ACON emphasises that the impact of discriminatory laws is not just about financial disadvantage; it is about real people with real lives. Discriminatory laws have the effect of self censorship in that gay and lesbian couples sometimes don't bother asserting their rights because they expect to be rejected. The laws can also lead to social exclusion which, in turn, negatively impacts on health and well-being

 

3. Jim Woulfe (Personal Story)

Jim Woulfe talks about his nineteen year relationship with his partner Andreas Ohm. He describes how they make the same kinds of contributions to Australian society as heterosexual couples do, yet they are not entitled to ask for the same things back from that community.

Jim Woulfe suggests that equality in the law would be the biggest single step the government could take against harassment and violence against gay men and lesbians. He suggests that the community as a whole takes its lead from the attitude of government, as expressed in legislation. He says that by retaining inequality in the law the government maintains an environment in which hate and homophobia can thrive. The message that is conveyed is that: "The government treats gays and lesbians differently, they say, so why shouldn't we?"

 

4. Susan Everingham (Personal Story)

Susan Everingham shares the difficulties that she and her partner Maria face in being co-parents of a young child. Because Maria is not the biological parent, she cannot be on her daughter's birth certificate and their daughter cannot be on Maria's Medicare card.

Susan Everingham says that despite the fact that she and Maria have a joint mortgage, joint bank account and joint credit card, Maria does not have access to the same income tax benefits that she does, because she is not the biological parent. Susan expresses her immense frustration with being considered a single parent by government bureaucracy.

Susan says that she and Maria don't want anything more or different to others. "We just want the same."

 

5. Michael Burge (Personal Story)

Michael Burge describes the difficulties that he has had after the sudden death of his long term partner. He sets out the difficulties he had with his partner's Funeral Director and how that meant that he was not listed on his partner's death certificate.

Michael Burge describes how hard it has been to arrange his affairs since his partner's death, because he has had such difficulty proving his relationship. In particular he notes that he has been unable to benefit from the bereavement allowance and widow's pension.

 

6. Lynne Martin (Personal Story)

Lynne Martin talks about become a new mother in a context where the law does not recognise her role as a non-biological parent. She expresses frustration that Australian laws treat her, her relationship and her parenthood as inferior to heterosexual men and women.

Lynne Martin makes a simple plea: "I am not a second class citizen and resent my family and I being treated as such. All I ask is to be treated equally, no more and no less than any other Australian. Just equal."

 

7. Jiro Takamisawa (Personal Story)

Jiro Takamisawa tells the story of asserting his rights to a Veteran's Pension on the death of his partner. He describes the various avenues he has used to try and assert those rights and now says that he is going to take the case to the United Nations Human Rights Committee.

Jiro Takamisawa expresses great sorrow that his relationship of 20 years means nothing to the society in which he lives. He describes how he cared for his partner in his last years and that he received a carer's pension during that time. But once his partner died he was no longer eligible for any support.

Jiro Takamisawa says that the lack of recognition of his love for his deceased partner has caused him serious pain, and has possibly led him into depression. It has also resulted in serious financial strain.

 

8. NSW Gay and Lesbian Rights Lobby

David Scamell, Co-Convener

The NSW Gay and Lesbian Rights Lobby (NSW GLRL) provides an overview of the issues covered in its extensive written submissions. A variety of topics are discussed during the oral submission, including:

  • A summary of NSWGLRL consultations on Federal relationship recognition
  • Discrimination caused by lack of relationship recognition
  • Lack of awareness about when gay couples do and do not have rights exacerbates the feeling of discrimination
  • The advantages and disadvantages of the introduction of a an 'interdependency' definition into legislation
  • Veterans pensions and Defence Force entitlements
  • The Aged Care Act
  • The Child Support Assessment Act
  • The Migration Act
  • Parenting for same-sex couples

 

 

9. NSW Law Reform Commission

Professor Michael Tilbury, Commissioner; Peter Hennessy, Executive Director

The NSW Law Reform Commission discusses its recent review of the Property Relationships Act 1984 (NSW). The consultation process for its review included a series of meetings in late 2004 and early 2005 with the gay and lesbian community regarding property, financial agreements and parenting issues. The NSWLRC also conducted a series of focus groups and a small survey.

Since the NSWLRC report has not yet been tabled in Parliament, the Commission can not talk about its findings in any detail. However, the Commission discussed the following issues during its oral submission:

  • Financial adjustments to be made when a relationship breaks down
  • The effect that domestic violence ought to have on financial adjustments
  • The best way to define a relationship in the absence of marriage - including views for and against a relationship registration system
  • The practical difficulties caused by failing to recognise the relationship between a child and non-biological parent
  • The NSW Law Reform Commission's intention to conduct further investigations on a uniform system of intestacy laws
  • The need for on-going review of NSW statutes in order to ensure recognition of same-sex relationships

 

10. Association of Superannuation Funds of Australia

Dr Michaela Anderson, Director of Policy and Research

The Association of Superannuation Funds of Australia (ASFA) starts its oral submission by stating its clear view that superannuation and tax legislation should not be discriminatory.

ASFA explains that the 2004 amendments to the Superannuation Industry (Supervision) Act 1993 and the Income Tax Assessment Act 1936 means that most Superannuation Fund Trustees can now consider same-sex partners as legitimate beneficiaries of their partner's superannuation funds (death benefits). This was done through the introduction of the concept of an 'interdependency relationship'.

However there are two qualifications to this legislation:

  • the legislation does not require a fund to adopt the concept of an 'interdependency relationship', it enables that recognition
  • the legislation does not apply to Commonwealth government superannuation funds

Although the 2004 legislation does not require recognition of same sex relationships, ASFA is unaware of any fund, other than Commonwealth government superannuation funds, which has not taken up the option of recognising interdependent relationships.

ASFA also explains the restrictions for same-sex partners in accessing:

  • contributions splitting
  • spouse tax rebate and
  • anti-detriment payments

 

11. Inner City Legal Centre

Natalie Ross, Principal Solicitor

The Inner City Legal Centre (ICLC) provides a specialist service legal advice to gay, lesbian and transgender people.

ICLC talks about the difficulties that same-sex families experience due to the lack of legal recognition of their relationships in these families. ICLC highlights that it is most difficult for the member of couple who does not give birth - the co-mother. Generally she does not have any legally recognised relationship with that child and this has a significant impact in many areas of life, particularly on financial entitlements.

Some of the issues that the ICLC discusses during its oral submission include

  • Parenting leave - there is no entitlement for the female partner of the co-mother. Definitions used in Workplace Relations Act and Industrial Relations Act (NSW) mean that maternity and paternity leave can not be used by same-sex partners.
  • Carer's Leave - a co-mother has no automatic right to paid carer's leave, under definitions in the Workplace Relations Act. However, there is a right to paid leave to care for a member of the household.
  • Separation - if the child lives with the birth mother, the birth mother has no entitlement to claim support from a co-mother.
  • Intestacy - if a co-mother dies intestate, the child has no right to the co-mother's estate. However, there may be grounds for child to claim under the Family Provision Act.
  • Public court appearances - same-sex couples who are not prepared publicise their relationship face a difficulty if forced to go to court. Families of the same-sex partners may not know of the relationship or child.
  • Parenting consent orders - to overcome practical difficulties with children (school notes, medical treatment) - ICLC recommends that a couple make an application for consent parenting orders under the Family Law Act to give co-mother rights and responsibilities with regard to child. But this does not make co-mother a parent of that child. Orders are limited to everyday matters between the parent and the child.
  • Superannuation - many clients are unhappy regarding the uncertainty of the interdependency test.

 

12. Australian Services Union

Jo Justo, National Industrial Officer

Community and Public Sector Union

Lisa Newman, Deputy National President; Peter Feltham, Project Officer

The CPSU notes a variety of areas where same-sex couples are excluded from workplace entitlements by using 'spouse' in relevant definitions and eligibility criteria. Some of those entitlements include: remote localities allowance, carer's leave, adoption leave, parental leave, maternity leave, bereavement leave, superannuation entitlements, relocation entitlements.

The CPSU also highlights the continuing discrimination in Commonwealth superannuation schemes in the context of death benefits. The CPSU notes that it has made various representations to the Department of Finance and Administration, and other departments that discrimination could be removed through amending the relevant legislation.

The CPSU recommends a variety of changes to bring equality in the workplace for same-sex couples. In particular they recommend amendment to

  • Australian Public Service Code of Conduct and Values
  • Public Service Act
  • Department of Employment and Workplace Relations (DEWR) Policy Parameters

The ASU notes that enjoyment of workplace entitlements are affected by industrial instruments; policies and procedures; and culture and environment. Carer's leave is one of several problematic areas.

The ASU notes that same-sex employees may be reluctant to come forward with some of their difficulties while there is inadequate legislative protection of rights.

The ASU provides examples of industrial agreements which reflect best practice outcomes for same-sex couples in employment provisions. The ASU also notes that collective agreements are likely to be more effective in protecting the rights of same-sex couples than Australian Workplace Agreements.

 

 

13. Gilbert and Tobin Centre of Public Law

Dr.Andrew Lynch

The Gilbert and Tobin Centre of Public Law discusses the constitutional issues surrounding recognition of same-sex relationships.

The Centre's starting premise is that the only way to address discrimination against same sex couples is through the legal recognition of same-sex unions. In the Centre's view, the ideal solution would be a national scheme of civil unions.

The Centre suggests that the Commonwealth does not have an obvious source of Constitutional power to create a national scheme of civil unions. But this also means that the Commonwealth probably does not the power to override State legislation that seeks to recognise civil unions. The situation is different with respect to Territory laws, where the Commonwealth power to override Territory legislation pursuant to article 122 of the Constitution.

The Centre discusses the interpretation of the marriage power in the Constitution. It also discusses the difference between the ACT civil unions legislation (which was overridden by the Commonwealth) and the Tasmanian registration system for same-sex relationships.

The Centre contemplates the possibility of a creating a national scheme of relationship recognition by all States referring their power to the Commonwealth government, or by the States voluntarily enacting similar legislation. The Commonwealth could then use such a system to remove discrimination by applying State recognition to Federal laws.

 

14. Public Interest Advocacy Centre (PIAC)

Vijaya Raman, Policy Officer ; Jo Schulman, Equality Solicitor

The Public Interest Advocacy Centre (PIAC) discussed Australian's international obligations to ensure non-discrimination against same-sex couples. In particular PIAC discusses:

  • the Universal Declaration of Human Rights (UDHR)
  • the International Covenant on Civil and Political Rights (ICCPR)
  • the Convention on the Rights of the Child (CRC)

PIAC notes that the principle of non-discrimination in the CRC includes protection from discrimination on the basis of the type of family from which a child comes. While PIAC is unaware of any specific international case law regarding this issue, PIAC notes that the Committee on the Rights of the Child has expressed concern about discrimination on the basis of type of family.

PIAC goes on to discuss that the ICCPR affirms equality of all people before the law. In particular, the UN Human Rights Committee has found Australia found to be in violation of the ICCPR where there has been discrimination on the basis of sexual orientation.

PIAC discusses an international trend towards implementing measures to address the inequality suffered by same-sex couples. PIAC notes that Australia sits towards the bottom of the spectrum of countries that recognise the rights of same-sex couples. PIAC also suggests that there is correlation between countries that have a Bill of Rights and countries that protect the rights of same-sex couples (with the exception of the USA).

PIAC notes that a Senate Committee on Legal and Constitutional Affairs recommended federal anti-discrimination legislation on the basis of sexuality in 1996. PIAC supports the implementation of this recommendation. It would formally meet Australia's international obligations and it would send a symbolic message that gay men and lesbians are worthy of protection.

 

15. NSW Anti-Discrimination Board

Fiona Kerr, Legal Officer

The NSW Anti Discrimination Board (ADB) describes the operation of the NSW Anti-Discrimination Act (ADA).

The ADB notes that there are some weaknesses in the way the ADA protects same sex couples. In particular, the ADA provisions protecting people from discrimination on the grounds of marital status do not include same-sex couples. The ADB describes this as an anomalous situation - the legislation protects against discrimination on the grounds of homosexuality but includes a discriminatory definition itself.

The ADB goes on to describes its review of all NSW legislation that used the definition 'spouse' in order to see what needed to be done to eliminate discrimination against people in same sex relationships. Annexure C to the ADB submission lists the NSW legislation that still needs reform, including:

  • Public Authorities Superannuation Act - 'deceased contributor' is limited to a person of the opposite sex
  • Industrial Relations Act NSW - parental leave excludes non-biological same sex parents; this may also cover adoption leave
  • Adoption Act - only for single people or a heterosexual couple
  • Human Tissues Act - may not recognise same sex co-parents as next of kin
  • Local Government Act - 'spouse' definition excludes same sex couples
  • Property Relationships Act -does not change the ways spouse is construed at law
  • Workplace Injury Management and Workers Compensation Act 1988 - defines 'de facto' in a way which may not cover same sex couples who don't live together on a full time basis