Same-Sex: Same Entitlements: Chapter 3

international human rights treaties protect same-sex couples and their children,

in the context of accessing financial and work-related

focuses on the right to non-discrimination on the grounds of sexual orientation.

It also describes how the breach of that right can interfere with a range of

against parents on the grounds of sexual orientation can impact on the rights of

their children. In particular, discrimination against same-sex parents can

compromise the protection of the best interests of the child. It can also result

in a breach of Australia’s obligation to assist both parents in the

comply with the provisions of all of these treaties. However, a treaty only

becomes legally binding in Australia when it is directly incorporated by

domestic legislation. A range of Australian laws have sought to incorporate

aspects of the ICCPR, CRC, ILO 111 and ICESCR, but none of the treaties have

Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), which

empowers the Human Rights and Equal Opportunity Commission (HREOC) to examine

whether Australia is complying with its obligations under the ICCPR, the CRC and

ILO 111. HREOC also has a statutory responsibility to promote public

understanding and acceptance of human rights in

Australia’s laws relating to financial and work-related entitlements

comply with the ICCPR, the CRC and ILO 111 when applied to same-sex couples and

their children. The Inquiry also considers the impact of discriminatory laws on

the ability of same-sex couples and their children to realise their rights under

rights of all people. The provisions of the ICCPR which are relevant to this

Committee (the Human Rights Committee), is responsible for monitoring compliance

with the ICCPR and providing guidance about how to interpret ICCPR rights. HREOC

also monitors Australia’s compliance with the

ICESCR to the needs of children. It also creates specific rights that recognise

children’s unique needs. The provisions of the CRC which are relevant to

Committee on the Rights of the Child (the Children’s Rights Committee), is

responsible for monitoring compliance with the CRC and providing guidance on the

interpretation of the CRC. HREOC also monitors Australia’s compliance with

the

CRC also recognises the special competence of the United Nations

Children’s Fund (UNICEF) to provide expert advice about the implementation

of the CRC.^[3] The UNICEF Implementation Handbook for the Convention on the Rights of the Child (UNICEF Implementation Handbook) helps explain how the CRC’s

economic, social and cultural rights of all people. Article 2(1) of the ICESCR

requires State Parties to take steps, especially legislative measures, to

obligations of State Parties are subject to ‘progressive

realisation’ and available resources, the obligation of State Parties to

undertake to guarantee ICESCR rights without discrimination (article 2(2)) is of

Economic Social and Cultural Rights (the ESCR Committee) monitors compliance

with the ICESCR and provides guidance on how countries should interpret the

steps to eliminate discrimination on a range of grounds and ensure equality of

ILO 111 provides that countries can add to the list of grounds on which

discrimination is prohibited. In 1989, Australia added discrimination on the

grounds of sexual preference to that

II, Division 4 of the HREOC Act provides for a range of functions to be

exercised by HREOC in relation to ILO 111 discrimination. Those functions

include inquiring into acts or practices that may constitute discrimination in

the workplace on the grounds of sexual

recommendations to remedy discrimination, including for payment of compensation,

these recommendations are not

right to non-discrimination and the right to equality before the law are

denying same-sex couples financial benefits and entitlements available to

opposite-sex couples will be discriminatory, unless they serve a legitimate

same-sex couples from financial and work-related entitlements and benefits that

are enjoyed by opposite-sex couples, for no readily apparent

eligible for a range of rebates and tax concessions that are available to

opposite-sex couples. There is no justifiable reason for this

interfere with the rights of same-sex couples to enjoy equal protection of the

law, they can interfere with the ability of same-sex couples to enjoy many other

rights set out in international human rights treaties. These

‘flow-on’ effects are discussed throughout this

stating that all people should enjoy all the rights set out in the treaty

without discrimination of any kind. For example, article 2(1) of the ICCPR

should enjoy the rights in the CRC without discrimination of any kind,

irrespective of the child’s or his or her parent’s or legal

guardian’s race, colour, sex, language, religion, political or other

opinion, national, ethnic or social origin, property, disability, birth or other

‘umbrella clauses’ because they apply to all of the other rights set

out in the relevant treaty.^[8] In

other words, they require Australia to guarantee all the ‘stand

the recognition or enjoyment of a ‘stand alone’ right, there will be

a breach of that stand alone right in conjunction with the right to

denies protection to a same-sex family which is available to an opposite-sex

family, this will be a breach of the right to the protection of the family

(article 23(1), ICCPR) in conjunction with the right to non-discrimination

of the ICCPR protects the right to equality before the law and the right to the

before the law guarantees equality with regard to the enforcement of the law.

The right to the equal protection of the law without discrimination is directed

at the legislature and requires State Parties to prohibit

because it is a stand alone right which forbids discrimination in any law and in any field regulated by public authorities, even if

those laws do not relate to a right specifically mentioned in the

discriminates against same-sex couples it will breach Australia’s

obligations under article 26 of the ICCPR even though the legislation relates to

ensure children can enjoy their CRC rights without discrimination. Article 2(2)

of the CRC goes a step further and requires Australia to ensure that a child is

protected against ‘all forms of discrimination’ based on the status

words, article 2(2) of the CRC creates a stand alone right which protects

children from suffering any discrimination on the basis of the status of their

parents – including the sexual orientation of their parents. This is

discrimination is different to the protections in the ICCPR, CRC and ICESCR.

This is because ILO 111 focuses purely on non-discrimination in employment and

enact legislation which reflects this policy of non-discrimination and equal

opportunity, while article 3(c) requires Australia to repeal any statutory

non-discrimination in the workplace, by setting out ‘the right to fair

wages and equal remuneration for work of equal value without distinction of any

kind’ and providing for ‘equal opportunity for everyone to be

promoted in employment, subject to no considerations other than those of

ICCPR, CRC or ICESCR treaties specifically mention ‘sexual

orientation’ or ‘sexuality’ in the prohibited grounds of

discrimination. However, all of those articles forbid discrimination on the

basis of ‘sex’ or ‘other status’. And it appears that

the UN treaty bodies interpreting those provisions agree that the right to

non-discrimination includes protection from discrimination on the grounds of

has considered two cases from Australia (Toonen v Australia and Young

v Australia) which make it clear that one or the other of these categories

(‘sex’ or ‘other status’) protects people

from discrimination on the basis of sexual orientation under the ICCPR. These

authority for the proposition that a law differentiating between same-sex and

opposite-sex de facto couples in accessing financial entitlements will generally

be discrimination for the purposes of article 26 of the

Human Rights Committee has also emphasised the obligation of all parties to the

ICCPR to provide ‘effective protection’ against discrimination based

stated that discrimination on the grounds of sexual orientation is prohibited

under article 2(2) of the

ICESCR.^[13] The Committee on the

Rights of the Child has also indicated that the CRC prohibits discrimination on

the grounds of sexual

authority for the statement that the ICCPR prohibits discrimination on the

grounds of sexual orientation. However neither case clarifies whether the

prohibited discrimination is on the basis of ‘sex’ or an

criminalised consensual homosexual acts, even when they occurred in a private

home.^[15] The Human Rights Committee

found that the laws breached the right to privacy (article 17(1) of the ICCPR)

whether the Tasmanian laws breached the right to equal protection under the law

(article 26), since it had already found that there was discrimination in the

‘sex’ in articles 2(1) and 26 of the ICCPR, includes sexual

orientation.^[16] However, the

Committee did not address whether discrimination on the grounds of sexual

orientation might also fall under the ‘other status’ category

– despite a specific request by Australia to do

Human Rights Committee’s recommendation that the Tasmanian laws be

repealed was implemented through the introduction of the Human Rights (Sexual

Conduct) Act 1994 (Cth). This act was introduced after a Constitutional

legal battle between Mr Toonen’s partner, Mr Rodney Croome, and the then

denied him the right to receive a veterans’ pension because he was

his partner, Mr C, who was a war veteran. When Mr C died, Mr Young applied for a

veterans’ pension under the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlement Act). The Department of Veterans’

Affairs denied his pension application because a same-sex partner does not

qualify as a veteran’s ‘dependant’, even though an

Human Rights Committee found no reasonable or objective reasons for denying Mr

Young the pension. It concluded that the distinction between the treatment of

opposite-sex couples and same-sex couples under the Veterans’ Entitlements

Act was discrimination in breach of article 26 of the

Committee did not clarify whether the discrimination in Mr Young’s case

was on the basis of ‘sex’ or ‘other status’. The

the Human Rights Committee is suggesting that ‘sexual orientation’

is a subset of ‘sex’ discrimination. Another way of reading the

passage is that ‘sexual orientation’ is either a subset of

‘sex’ or it is something in addition to ‘sex’

discrimination, namely discrimination on the grounds of any ‘other

status’. It is unclear which interpretation was intended by the

recommendation that the Australian government amend the veterans’

entitlements law to give Mr Young access to a pension has not been

‘seems more properly classified as an ‘other status’, rather

than as an aspect of one’s

discrimination on the grounds of sexual orientation is included in the

preferable to distinguish discrimination on the grounds of sexual orientation

from discrimination on the grounds of ‘sex’. This is because

‘sex’ discrimination is more about a person’s gender than a

discrimination on the basis of ‘sexual orientation’ with

discrimination on the grounds of ‘sex’ minimises the importance of

can access a veterans’ pension but lesbian women cannot, then that law

would discriminate against lesbian women because they are women in a

same-sex relationship, not because they are in a same-sex relationship. This

would amount to discrimination on the grounds of their ‘sex’ not

other hand, if a law provides that a man in an opposite-sex couple can access

the veterans’ pension but a man in a same-sex couple cannot, then the

discrimination is based on the ‘sexual orientation’ of the men, not

‘sex’ discrimination and discrimination on the grounds of

‘sexuality’ is consistent with the treatment of ‘sex’

discrimination under Australia’s Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The Sex Discrimination Act separates the

concept of ‘sex’ discrimination from the concept of ‘marital

status’ discrimination.^[23] However, it must be noted that discrimination on the grounds of ‘marital

status’ under the Sex Discrimination Act does not include discrimination

Human Rights Committee’s General Comment 18 states that for the purposes

of interpreting the scope of both article 2(1) and article 26 of the ICCPR, the

only be discrimination if its purpose or effect is to harm or deny a

Rights Committee has also stated if the grounds for treating one group of people

discrimination. ^[25] This reasoning

also applies to the CRC, ICESCR and ILO

treatment between same-sex and opposite-sex couples, it is relevant to consider

which suggest that the sexual orientation of a couple is a reasonable and

objective justification for differential treatment in the area of financial and

Committee, the ESCR Committee, the Children’s Rights Committee and the

European Court of Human Rights have consistently found that discrimination

between people on the grounds of sexuality breaches the relevant human rights

the Inquiry has concluded that Australia's obligations under the ICCPR require

Australia to remove all distinctions between same-sex couples and opposite-sex

provide for marriage between homosexual couples’ does not violate the

if denying the right to marry results in discrimination in the area of financial

and work-related entitlements then there may still be a breach of international

could occur if financial entitlements and benefits are only available to married

couples (and not to de facto opposite-sex couples or same-sex couples). This is

because same-sex couples are unable to meet the threshold requirement (marriage)

only available to a married couple, an opposite-sex couple has the option to

marry and therefore obtain those benefits. But a same-sex couple can never

obtain those entitlements because they can not meet the ‘marriage’

requirement.^[29] This is a form of

‘indirect

married and de facto couples in the same way. Thus this form of discrimination

does not frequently arise. However, in those areas where married and de facto

couples do have different access to financial entitlements, there will be

that same-sex couples can access ‘effective remedies’ to address

enforceable and requires ‘reparation to individuals whose Covenant rights

have been violated’. ^[32] A

failure to investigate allegations of violations can in itself give rise to a

separate breach of the

number of submissions to the Inquiry observed there are no effective federal

remedies available to people who experience discrimination on the grounds of

of sexual orientation is not unlawful discrimination under federal

makes it unlawful to dismiss someone because of their sexual preference, or for

reasons which include their sexual

preference.^[36] While this provides

effective remedy for a person who is dismissed on the grounds of their sexual

orientation, the remedy is limited to discrimination in the context of dismissal

HREOC cannot enforce any recommended remedies. The Human Rights Committee has

confirmed that this means complaints to HREOC can not be characterised as

discrimination and there is no effective remedy for that discrimination, there

narrow view about what constitutes a legitimate family. The failure to include

same-sex couples and their children within the definitions of

‘spouse’, ‘member of a couple’, ‘child’,

‘dependant’ and so on, means that that same-sex families miss out on

tax, social security, superannuation, Medicare, aged care and other federal

financial benefits which are designed to assist members of the legally defined

‘family’, and are available to opposite-sex parents and their

co-mother or gay co-father is particularly problematic for same-sex couples who

face confusion and uncertainty when attempting to access the financial

to different people. But the Human Rights Committee takes the view that the term

‘family’ is not confined by the concept of

marriage^[45] and should be

interpreted broadly to include a wide variety of living

that when a group of persons is regarded as a family under the legislation and

practises of a particular country, that family must be protected under the

ICCPR.^[47] A country’s laws

Human Rights Committee has set out some minimal requirements for the existence

of family including ‘life together, economic ties, [and] a regular and

intense relationship’ however it has not sought to impose any strict

definitional criteria on the concept of

also emphasised that the definition of ‘family’ is flexible,

none of these statements explicitly include same-sex families, this Inquiry

takes the view that same-sex couples and their children are families in the same

way as opposite-sex couples and their children are families. This view reflects

both the social reality of Australian society (around 20 % of lesbians and five

% of gay men in Australia have

children)^[51] and the broad and

received submissions suggesting that same-sex couples and their children should

rejects this view as contrary both to human rights principles and the reality of

or same-sex parents, this may impact on the right to protection of the family as

provide protection to a family on the basis of the sexual orientation of one or

both parents may result in a breach of article 23(1) of the ICCPR in conjunction

requires Australia to provide ‘the widest possible protection and

assistance’ to the family, ‘particularly for its establishment and

while it is responsible for the care and education of dependent children’

(ICESCR, article 10). This includes taking ‘special measures of protection

and assistance on behalf of all children and young persons without any

families which is available to opposite-sex families, will breach article 10 in

home life of same-sex couples or their children, on the basis of the sexual

orientation of one or both of the parents, may give rise to a breach of the

interference with a person’s privacy, family and home. Specifically,

language to protect children from arbitrary or unlawful interference with their

the term ‘family’ has been interpreted broadly to ‘include all

those comprising the family as understood in the society of the State party

‘arbitrary’ interference protects against situations where

‘lawful’ interference contravenes the provisions of the

ICCPR.^[53] In other words, it

criminalising consensual homosexual activity breached the right to privacy under

Article 17(1) of the ICCPR. The Committee rejected the argument that the laws

were justified on the grounds of public health and

European Court of Human Rights has also held that laws setting a

different age of sexual consent for homosexual activity than heterosexual

activity violate the right to privacy (article 8) and the non-discrimination

provision of the European Convention on Human Rights (ECHR) (article

14).^[55] Article 8 and article 14 of

court’s decision to deny a gay man custody of his child on the basis of

his sexual orientation constituted an interference with the man’s family

life contrary to article 8 of the ECHR in conjunction with the

non-discrimination provision of the ECHR (article

decision to deny a gay man the right to continue occupying his deceased

partner’s flat (a right available to opposite-sex de facto partners)

violated article 8 (respect for home life) and article 14 (non-discrimination)

the lives of their parents. The Committee on the Rights of the Child has

recognised that ‘the human rights of children cannot be realized

independently from the human rights of their parents, or in isolation from

society at

exclusion of certain same-sex parents from financial benefits and entitlements

may have a negative impact on that family’s capacity to protect the best

born to a lesbian couple through assisted reproductive technology will not be

recognised as the child of the lesbian co-mother under income tax law. This may

mean that the lesbian parents will miss out on tax benefits intended to help

can enjoy their rights without discrimination. In particular, Australian

children should not suffer any discrimination on the basis of the

‘status’ of their parents or legal guardians. Article 2(2) of the

2(2) is very broad and requires State Parties to protect the child from

discrimination is related to a right under the

this Inquiry’s view, when laws relating to financial and work-related

entitlements of same-sex couples disadvantage the children of those couples,

when compared with children of opposite-sex couples, those laws may breach

is one of the core principles of the

interests principle requires parliament, the executive (including private

institutions acting on their behalf) and the judiciary to ensure that the best

interests of the child are a primary consideration in all actions concerning

same-sex parents may have a negative impact on that couple’s child. If

such a negative impact is a reasonably foreseeable outcome of a particular law

it suggests that the best interests of the child were not a primary

consideration in the decision to enact such

entitlements for Australian employees include parental leave. However, parental

leave is only guaranteed to the male partner of a woman who has just given

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 the first weeks of

purpose of parental leave is to enable a parent to care for a newly born child,

and to assist his or her partner in this task, the decision to deny leave to a

parent in a same-sex couple does not appear to take into account the best

interests of the child as a primary consideration. Such laws are in breach of

assist the role of a child’s parents in protecting the best interests of

further and imposes an obligation on State Parties to provide appropriate

assistance to parents and legal guardians in the performance of their

child-rearing responsibilities. The purpose of this assistance is to guarantee

and promote all the rights set out in the CRC. Relevantly, article 18(2)

specifically refer to the responsibilities and rights of parents in a same-sex

parent, which are otherwise available to an opposite-sex parent, will breach

lesbian co-mother or gay co-father of a child may breach the obligation to

recognise the ‘common responsibilities’ of ‘both

24(2) of the ICCPR which provides that ‘every child shall be registered

immediately after birth and shall have a name’. The Human Rights Committee

has stated article 24(2) ‘is designed to promote the child’s legal

the parents of the child. This ensures that parents take responsibility for the

child and recognises the importance of parents in the development, well-being

are some Australian states which allow the registration of a lesbian couple on a

child’s birth certificate and other states which do not. Those states

which do not recognise both same-sex parents of a child, in circumstances where

both of the heterosexual parents would be recognised, may be in breach of

article 7 of the CRC, either independently or in conjunction with article 2.

legal meaning of the phrase ‘family relations recognised by law’ is

unclear, it recognises that a child’s sense of identity depends on more

than just knowing his or her biological

or her parents under article 7 and the child’s right to preserve his or

her identity under article 8, the definition of ‘parents’ has been

interpreted broadly to include, genetic parents, birth parents and psychological

in the Inquiry’s view, the lesbian co-mother or gay co-father of a child

should be included under the CRC definition of ‘parents’. If an

Australian law fails to recognise the potential significance of such a person it

may deny the child’s right to know his or her ‘psychological

born through assisted reproductive technology is not automatically recognised as

a parent under the Family Law Act 1975 (Cth). If the parents separate,

the legal rights of the lesbian co-mother may not be recognised. To the extent

that this failure to recognise parental status may lead to interference with a

child’s sense of identity, article 8 may be breached in conjunction with

adoption to make sure that the best interests of the child are ‘the

paramount consideration’ in the adoption process. This requirement is even

stronger than the principle in article 3(1) of the CRC which requires a

child’s best interests to be ‘a primary

states that article 21 of the CRC establishes that ‘no other interests,

whether economic, political, state security or those of the adopters, should

take precedence over, or be considered equal to, the child’s’. This

means that ‘any regulation [that] fetters the principle could lead to a

breach of the Convention – for example inflexible rules about the

adopters, such as the setting of age limits

laws restricting adoption rights to heterosexual individuals or couples may

breach article 21 of the CRC in conjunction with article 2. This is because a

blanket ban on adoption by same-sex couples prevents an objective case-by-case

Recognising Children, discrimination against same-sex couples in adoption may

also lead to discrimination in access to financial entitlements for the benefit

of the family. This is because some financial benefits are only available to the

recognise same-sex couples as a genuine

relationship.^[72] In some

circumstances, this can result in a financial disadvantage for same-sex couples.

Comment on social security confirms the broad scope of the right to social

social security, this Inquiry considers the right to social security without

discrimination is relevant to the discussions in the following

ESCR Committee has also recognised the importance of social security benefits to

families, stating that ‘family benefits should be provided to families,

without discrimination on prohibited

ESCR Committee has urged State Parties to actively take steps to remove

discrimination on prohibited grounds, stating ‘[r]estrictions on access to

social security schemes, particularly benefits, should also be reviewed to

ensure that they do not discriminate in law or in

social security benefits may breach the right to social security in article 9 of

to benefit from social security under article 26 can be distinguished

from article 9 of ICESCR, which recognises a right to social security.

This distinction ‘reflects the fact that children’s economic

security is generally bound up with that of their adult

laws do not generally recognise same-sex couples. Given that a child’s

right to benefit from social security is often inextricable from the rights of

his or her parents, legislation which discriminates against same-sex couples or

parents, generally also discriminates against a child of the couple. On this

basis, Australia may be in breach of article 26 in conjunction with article 2(1)

subsidies currently discriminate against same-sex couples. This can have a

negative impact on the ability of same-sex couples and families to access health

everyone to the enjoyment of the highest attainable standard of physical and

‘understood as the right to the enjoyment of a variety of facilities,

goods, services and conditions necessary for the highest attainable standard of

enjoyment of the rights set out in the ICESCR, including the right to health,

must occur without discrimination. The ECSR Committee has expressly stated that

financial entitlements which help cover the cost of health care may act as a

same-sex families to enjoy ‘the highest attainable standard of physical

protects the rights of the child to access the highest attainable standard of

Child has expressed concern about the impact that discrimination, including

discrimination on the grounds of sexual orientation, can have on the physical

child suffers discrimination in the provision of health care as a result of the

sexual orientation of the child’s parents or legal guardian, or indeed the

that if a same-sex couple is discriminated against in the provision of health

services and this discriminatory treatment has a negative impact on the

child’s capacity to enjoy the ‘highest attainable standard of

health’, there may be a breach of article 24(1) in conjunction with

emphasis of this report is on the right to non-discrimination because, as one

commentator observed, ‘discrimination is at the root of virtually all

identifies whether and how the specific laws breach the right to protection of

the law without discrimination on the grounds of sexual orientation. If such

discrimination is identified, the Inquiry then examines the impact of that

discrimination on other rights protected by the ICCPR, the CRC and the

ICCPR, although it has no power of penalty or enforcement. HREOC also has other

powers to monitor Australia’s compliance with the ICCPR, including the

power to examine where federal legislation complies with Australia’s

obligations under the ICCPR. See Human Rights and Equal Opportunity

Commission Act 1986 (Cth), s 11(1)(e), s

CRC, although it has no power of penalty or enforcement. HREOC also has other

powers to monitor Australia’s compliance with the CRC, including the power

to examine where federal legislation complies with Australia’s obligations

under the CRC. See Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(e), s

Comments and General Recommendations Adopted by Human Rights Treaty Bodies,

UN Doc HRI/GEN/1/Rev.8 (2006) at

the purposes of the Human Rights and Equal Opportunity Commission Act,

‘discrimination’ includes discrimination on the grounds of sexual

preference. See Human Rights and Equal Opportunity Commission Regulations 1989

Commentary, N.P. Engel, Strasbourg, 1993,

Schultz, The International Covenant on Civil and Political Rights: Cases,

Materials and Commentary, 2^nd ed, Oxford University Press, 2004,

p686, para

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 185. See also Broeks v

Netherlands, Communication No 172/1984, UN Doc CCPR/C/OP/2 at 196

CCPR/CO/78/SLV (2003) at para 16; Concluding observations of the Human Rights

Committee: Philippines, CCPR/CO/79/PHL (2003) at para 18; Concluding

observations of the Human Rights Committee: United Kingdom of Great Britain

and Northern Ireland (Hong Kong), CCPR/C/79/Add.57 (1995) at para 13;

Concluding observations of the Human Rights Committee: Poland,

CCPR/C/79/Add.110 (1999) at para

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 151. See also ESCR Committee,

General Comment 14, (2000), para 18, in Compilation of General Comments and

General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc

HRI/GEN/1/Rev.8 (2006) at

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

Political Rights: Cases, Materials and Commentary, 2^nd ed, Oxford

University Press, 2004, p691, para [23.25]. See also, Castan Centre for Human

Rights Law, Submission

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at 188. See also Young v

Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

sexual orientation requires ‘particularly serious reasons by way of

justification’ and must respect the principle of proportionality. See Karner v Austria [2003] ECHR 395, 37,

Scheinin noted that ‘a denial of certain rights or benefits to same-sex

couples that are available to married couples may amount to discrimination

prohibited under article 26, unless otherwise justified on reasonable and

objective criteria’. See Joslin v New Zealand, (902/1999) UN Doc.

available to a married couple and an opposite-sex de facto couple may be

reasonable and objective because the opposite-sex de facto couple has the choice to marry and access the benefits. See Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

practice that is the same for everyone but has an unfair effect on a particular

group of people. Direct and indirect discrimination are prohibited by the

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

342; Equal Opportunity Commission of Victoria, Submission

the Human Rights Act 2004 (ACT) prohibit discrimination on the grounds of

Industrial Relations Commission, the Australian Fair Pay Commission and the

Office of the Employment Advocate to take into account the need to prevent and

eliminate discrimination on a range of grounds, including ‘sexual

preference’: Workplace Relations Act 1996 (Cth), ss 104(b),

222(1)(e), 151(3)(b), 568(2)(e). The Workplace Relations Act 1996 (Cth)

also provides that awards or award-related orders also must not discriminate on

the grounds of ‘sexual

See also S Joseph, J Schultz and M Castan, The International Covenant on

Civil and Political Rights: Cases, Materials and Commentary, Oxford

University Press (2004),

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006), at

Political Rights: Cases, Materials and Commentary, 2^nd ed, Oxford

University Press, 2004, p587, para

1994, UN Doc. CRC/C/24/Annex V, p 63. See also discussion in R

Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

Rights of the Child, UNICEF (2002),

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006), at 363; Committee on

the Rights of the Child, General Comment 4 (2003), in Compilation of General

Comments and General Recommendations Adopted by Human Rights Treaty Bodies,

Observations of the Committee on the Rights of the Child: Libyan Arab

Jamahiriya, CRC, CRC/C/132 (2003) 100 at para 368; Concluding Observations

of the Committee on the Rights of the Child: Morocco, CRC, CRC/C/132

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006), at

Rights of the Child, UNICEF (2002),

Rights of the Child, UNICEF (2002),

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

Rights of the Child, UNICEF (2002),

Rights of the Child, UNICEF (2002),

Rights of the Child, UNICEF (2002),

Rights of the Child, UNICEF (2002),

Rights of the Child, UNICEF (2002),

the ICESCR, the ESCR Committee has adopted the same categories of social

security set out in the ILO Social Security (Minimum Standards) Convention 1952

(No.102) (ILO

E/C.12/GC/20/CRP.1,

E/C.12/GC/20/CRP.1,

E/C.12/GC/20/CRP.1,

E/C.12/GC/20/CRP.1,

Rights of the Child, UNICEF (2002),