Same-Sex: Same Entitlements: Chapter 3
Chapter 3. Human
Rights Protections for Same-Sex Couples and their Children
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- 3.1 What is this chapter about?
- 3.2 Which human rights treaties are relevant to this Inquiry?
- 3.3 Does the right to non-discrimination protect same-sex couples?
- 3.4 Can discrimination against same-sex parents interfere with the right to protection of family?
- 3.5 Can discrimination against same-sex parents interfere with the rights of the child?
- 3.6 Can discrimination against same-sex couples interfere with the right to social security?
- 3.7 Can discrimination against same-sex couples interfere with the right to health?
- 3.8 How are these human rights principles applied in this report?
3.1 What
is this chapter about?
This chapter explains how the provisions of
international human rights treaties protect same-sex couples and their children,
in the context of accessing financial and work-related
entitlements.
In particular, this chapter
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
other basic human rights, for example, the right to social security.
The chapter also explains how discrimination
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
performance of their common responsibilities.
More specifically, this chapter addresses the
following questions:
- Which human rights treaties are relevant to this
Inquiry?
- Does the right to non-discrimination protect same-sex
couples?
- Can discrimination against same-sex parents interfere
with the right to protection of family?
- Can discrimination against same-sex parents interfere
with the rights of the child?
- Can discrimination against same-sex parents interfere
with the right to social security?
- Can discrimination against same-sex couples interfere
with the right to health?
- How are these human rights principles applied in this
report?
3.2 Which
human rights treaties are relevant to this Inquiry?
Australia is a party to the following major
international human rights treaties relevant to this Inquiry:
- International Covenant on Civil and Political Rights (ICCPR)
- Convention on the Rights of the Child (CRC)
- International Covenant on Economic, Social and
Cultural Rights (ICESCR)
- International Labour Organisation Discrimination
(Employment and Occupation) Convention 1958 (ILO
111)
Australia has voluntarily agreed to
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
been incorporated in their entirety.
However, the
Commonwealth Parliament has enacted the Human
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.
This Inquiry examines whether
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
the ICESCR.
3.2.1 International
Covenant on Civil and Political Rights
The ICCPR protects the fundamental civil and political
rights of all people. The provisions of the ICCPR which are relevant to this
Inquiry are:
- right to non-discrimination (article 2(1))
- right to an effective remedy for a breach of human rights
(article 2(3))
- right to the protection of the law without discrimination
(article 26)
- right to privacy (article 17)
- right to family (article 23)
- rights of the child (article
24).
The United Nations Human Rights
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
ICCPR.[1]
3.2.2 Convention
on the Rights of the Child
The CRC adapts the rights set out in the ICCPR and 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
this Inquiry are:
- right to non-discrimination (article 2)
- best interests of the child must be a primary
consideration in all decisions about children (article 3)
- right to know and be cared for by parents (article
7)
- right to identity (article 8)
- right to privacy (article 16)
- recognition of parents’ joint responsibilities (to
be assisted by the state) (article 18)
- best interests of child must be the paramount
consideration in adoption (article 21)
- right to the highest attainable standard of health
(article 24)
- right to benefit from social security (article
26)
- right to an adequate standard of living (article
27).
The United Nations
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.[2]
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
provisions should be interpreted.
3.2.3 International
Covenant on Economic, Social and Cultural Rights
The ICESCR is the main treaty dealing with the
economic, social and cultural rights of all people. Article 2(1) of the ICESCR
requires State Parties to take steps, especially legislative measures, to
achieve the progressive realisation of ICESCR rights.
While the ICESCR acknowledges that the
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
immediate effect.[4]
The rights in ICESCR which are relevant to
this Inquiry include:
- right to non-discrimination (article 2(2))
- right to just and favourable conditions of work (article
7)
- right to social security (article 9)
- right to protection and assistance for the family
(article 10)
- right to an adequate standard of living (article
11)
- the right to health (article
12).
The United Nations Committee on
Economic Social and Cultural Rights (the ESCR Committee) monitors compliance
with the ICESCR and provides guidance on how countries should interpret the
ICESCR.
3.2.4 Discrimination
(Employment and Occupation) Convention (ILO 111)
The ILO 111 requires Australia to take all appropriate
steps to eliminate discrimination on a range of grounds and ensure equality of
opportunity and treatment in employment.
The
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
list.[5]
Part
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
orientation.[6]
However, while HREOC is empowered to make
recommendations to remedy discrimination, including for payment of compensation,
these recommendations are not
enforceable.[7]
3.3 Does
the right to non-discrimination protect same-sex couples?
The
right to non-discrimination and the right to equality before the law are
fundamental principles of international human rights law.
Laws which have the purpose or effect of
denying same-sex couples financial benefits and entitlements available to
opposite-sex couples will be discriminatory, unless they serve a legitimate
purpose and can be justified on reasonable and objective grounds.
Many of Australia’s laws exclude
same-sex couples from financial and work-related entitlements and benefits that
are enjoyed by opposite-sex couples, for no readily apparent
reason.
For example, same-sex couples are not
eligible for a range of rebates and tax concessions that are available to
opposite-sex couples. There is no justifiable reason for this
discrimination.
Discriminatory laws not only
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
chapter.
3.3.1 The
umbrella non-discrimination rights in human rights treaties
All of the major human rights treaties begin by
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
states that:
Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status. (emphasis added)
Similarly, article 2(2) of ICESCR says that all people
should enjoy the rights set out in ICESCR without discrimination.
Article 2(1) of the CRC says that all children
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
status.
These articles are described as
‘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
alone’ rights within a treaty without discrimination.
Where there is discrimination in relation to
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
non-discrimination.
For example, if a law
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
(article 2(1), ICCPR).
3.3.2 The
right to equal protection of the law without any discrimination
In addition to article 2(1) in the ICCPR, article 26
of the ICCPR protects the right to equality before the law and the right to the
equal protection of the law without any discrimination.
The right to equality
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
discrimination.[9]
Article
26 states:
All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status. (emphasis
added)
Article 26 is broader than article 2(1)
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
ICCPR.[10]
For example, if social security legislation
discriminates against same-sex couples it will breach Australia’s
obligations under article 26 of the ICCPR even though the legislation relates to
social security (which is a right otherwise protected by ICESCR).
3.3.3 Non-discrimination
protections for children
Article 2(1) of the CRC provides that Australia must
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
or activities of their parents.
In other
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
discussed further below in section 3.5.
3.3.4 Non-discrimination
protections in the workplace
(a) Protection
from discrimination under ILO 111
The protection provided by ILO 111 against
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
occupation.
Article 1(a) of ILO 111 defines
discrimination as:
...any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national extraction or
social origin, which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation...
Australia has specifically added ‘sexual
preference’ to the grounds of discrimination prohibited under ILO 111.
Article 2 of the ILO 111 requires Australia
to:
...declare and pursue a national policy designed to
promote, by methods appropriate to national conditions and practice, equality of
opportunity and treatment in respect of employment and occupation, with a view
to eliminating discrimination in respect thereof.
Article 3(b) of the ILO 111 requires Australia to
enact legislation which reflects this policy of non-discrimination and equal
opportunity, while article 3(c) requires Australia to repeal any statutory
provisions which are inconsistent with the policy.
(b) Protection
from discrimination under ICESCR
Article 7 of ICESCR also specifically protects against
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
seniority and competence’.
3.3.5 Protection
against discrimination on the grounds of sexual orientation
None of the non-discrimination articles in any of the
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
sexual orientation.
The Human Rights Committee
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
cases are discussed further below.
The Young case is particularly relevant to this Inquiry because it is
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
ICCPR.[11]
The
Human Rights Committee has also emphasised the obligation of all parties to the
ICCPR to provide ‘effective protection’ against discrimination based
on sexual orientation.[12]
Further, the ESCR Committee has explicitly
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
orientation.[14]
3.3.6 ‘Sex’
discrimination vs discrimination on the grounds of an ‘other
status’
The cases of Toonen and Young are
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
‘other status.’
(a) Toonen
v Australia
In 1991 Mr Toonen challenged Tasmanian laws which
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)
and the right to non-discrimination (article 2(1)) of the ICCPR).
The Committee did not make a finding about
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
application of the right to privacy (articles 2(1), 17(1) of the ICCPR).
The Committee found that the reference to
‘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
so.[17]
The
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
Tasmanian government.[18]
(b) Young
v Australia
In 1999, Mr Young challenged Commonwealth laws that
denied him the right to receive a veterans’ pension because he was
gay.[19]
Mr Young was in a 38 year relationship with
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
opposite-sex de facto partner does qualify.
The
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
ICCPR.[20]
As in the Toonen case, the Human Rights
Committee did not clarify whether the discrimination in Mr Young’s case
was on the basis of ‘sex’ or ‘other status’. The
Committee said the following in this regard:
The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also
discrimination based on sexual orientation... the Committee finds that
[Australia] has violated article 26 of the Covenant by denying [Mr Young] a
pension on the basis of his sex or sexual
orientation.[21] (emphasis
added)
One way of reading this passage is that
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
Committee.
To date, the Committee’s
recommendation that the Australian government amend the veterans’
entitlements law to give Mr Young access to a pension has not been
adopted.
(c) ‘Other
status’ is the better approach
Some academics suggest that sexual orientation
‘seems more properly classified as an ‘other status’, rather
than as an aspect of one’s
gender’.[22]
In practice it may not matter whether
discrimination on the grounds of sexual orientation is included in the
‘sex’ category or the ‘other status’ category.
However, in the Inquiry’s view, it is
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
person’s sexuality.
Confusing
discrimination on the basis of ‘sexual orientation’ with
discrimination on the grounds of ‘sex’ minimises the importance of
two very different motivations for discrimination.
For example, if a law provides that gay men
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
their ‘sexual orientation’.
On the
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
their ‘sex’.
Distinguishing between
‘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
against same-sex couples.
3.3.7 Different
treatment is not always discriminatory treatment
Different treatment does not always amount to
discriminatory treatment.
The
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
term ‘discrimination’:
....should be understood to imply any distinction,
exclusion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all
persons, on an equal footing, of all rights and
freedoms.[24] (emphasis
added)
This means that different treatment will
only be discrimination if its purpose or effect is to harm or deny a
person’s rights and freedoms.
The Human
Rights Committee has also stated if the grounds for treating one group of people
differently to another group are:
- reasonable and objective, and
- the aim is to achieve a purpose which is legitimate under
the ICCPR
then there may not be any
discrimination. [25] This reasoning
also applies to the CRC, ICESCR and ILO
111.
Therefore, where there is a difference in
treatment between same-sex and opposite-sex couples, it is relevant to consider
whether:
- the purpose of the different treatment is legitimate
under the relevant treaty
- the differentiation is a reasonable and objective way of
achieving that purpose
and
- the differentiation has, or intends, a negative
consequence, namely impairing or nullifying a person’s rights and
freedoms.
(a) Different
treatment of same-sex and opposite-sex de facto couples is discrimination
The Inquiry has not been presented with any arguments
which suggest that the sexual orientation of a couple is a reasonable and
objective justification for differential treatment in the area of financial and
work-related entitlements.
The Human Rights
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
treaties. [26]
Thus,
the Inquiry has concluded that Australia's obligations under the ICCPR require
Australia to remove all distinctions between same-sex couples and opposite-sex
couples in the area of accessing financial and work-related entitlements.
(b) Different
treatment of same-sex and married couples may be discrimination
The Human Rights Committee has considered the issue of
same-sex marriage only once.
In the case of Joslin v New Zealand the Committee found that ‘a mere refusal to
provide for marriage between homosexual couples’ does not violate the
State Party’s obligations under the ICCPR. [27]
However,
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
law.[28]
Discrimination
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)
of accessing the benefits, if same-sex couples cannot marry.
For example, if financial entitlements are
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
discrimination’.[30]
In practice, most Australian laws treat
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
discrimination against same-sex couples.
3.3.8 The
right to a remedy when there is discrimination
Article 2(3) of the ICCPR requires Australia to ensure
that same-sex couples can access ‘effective remedies’ to address
human rights violations.[31]
An ‘effective remedy’ must be
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
ICCPR.[33]
A
number of submissions to the Inquiry observed there are no effective federal
remedies available to people who experience discrimination on the grounds of
sexual orientation.[34]
In particular, discrimination on the grounds
of sexual orientation is not unlawful discrimination under federal
discrimination law.[35]
The Workplace Relations Act 1996 (Cth)
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
from employment.[37]
HREOC can investigate discrimination on the grounds of
sexual orientation under its statutory powers to:
- investigate complaints of breaches of
‘human rights’[38] or
ILO 111 discrimination[39]
- determine if laws are inconsistent with human
rights[40] or equal opportunity and
treatment in
employment[41]
- report to the Minister about any action needed to
comply with human rights
obligations[42] or ensure equal
treatment and opportunity in
employment.[43]
However,
HREOC cannot enforce any recommended remedies. The Human Rights Committee has
confirmed that this means complaints to HREOC can not be characterised as
effective remedies as defined by article 2(3) of the ICCPR. [44]
Where a same-sex couple experiences
discrimination and there is no effective remedy for that discrimination, there
will be a breach of article 2(3) of the ICCPR.
3.4 Can
discrimination against same-sex parents interfere with the right to protection
of family?
Some of the laws examined by this Inquiry reflect a
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
children.
The failure to recognise the lesbian
co-mother or gay co-father is particularly problematic for same-sex couples who
face confusion and uncertainty when attempting to access the financial
entitlements available to parents in an opposite-sex couple.
3.4.1 Same-sex
families are protected by human rights law
The ICCPR, the CRC and the ICESCR all place a positive
obligation on Australia to protect the rights of the family.
The concept of family means different things
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
arrangements.[46]
The Human Rights Committee has also stated
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
cannot:
- Limit the definition of ‘family’ by applying
structures or values which breach international human rights standards;
nor
- Prescribe a narrower definition of
‘family’ than that adopted within that country’s society. [48]
The
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
family.[49]
The Committee on the Rights of the Child has
also emphasised that the definition of ‘family’ is flexible,
stating:
When considering the family environment, the Convention
reflects different family structures arising from various cultural patterns and
emerging familial relationships. In this regard, the Convention refers to the
extended family and the community and applies in situations of nuclear family,
separated parents, single-parent family, common-law family and adoptive
family.[50]
While
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
flexible definition of family adopted by United Nations treaty bodies.
The Inquiry has
received submissions suggesting that same-sex couples and their children should
not be recognised as families. The Inquiry
rejects this view as contrary both to human rights principles and the reality of
modern Australian society.
3.4.2 Discrimination
against same-sex couples and parents can interfere with the right to protection
of family
Where there is discrimination against same-sex couples
or same-sex parents, this may impact on the right to protection of the family as
a whole.
Failing to
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
with article 2(1).
Further, the ICESCR
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
discrimination for reasons of parentage or other conditions’.
Denying protection and assistance to same-sex
families which is available to opposite-sex families, will breach article 10 in
conjunction with article 2(2).
3.4.3 Discrimination
against same-sex couples and parents can interfere with the right to privacy,
family and home
Laws which interfere with the privacy, family life or
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
ICCPR (articles 2(1) and 17) or the CRC (articles 2 and 16).
The ICCPR protects against certain types of
interference with a person’s privacy, family and home. Specifically,
article 17(1) of the ICCPR states that:
No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor
to unlawful attacks on his honour and reputation. (emphasis
added)
Article 16(1) of the CRC uses the same
language to protect children from arbitrary or unlawful interference with their
privacy, family and home.
As noted earlier,
the term ‘family’ has been interpreted broadly to ‘include all
those comprising the family as understood in the society of the State party
concerned.’[52]
Further, the concept of
‘arbitrary’ interference protects against situations where
‘lawful’ interference contravenes the provisions of the
ICCPR.[53] In other words, it
contemplates a situation where the law itself is the problem.
(a) Examples
of the breach of the right to privacy
As noted in section 3.3.6, in the Toonen case the Human Rights Committee found that Tasmanian laws
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
morals.[54]
The
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
the ECHR substantially reflect articles 2 and 17 of the ICCPR.
(b) Example
of the breach of the right to family life
In 1999 the European Court of Human Rights held that a
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
14).[56]
(c) Example
of the breach of the right to home life
In 2003 the European Court of Human Rights held the
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)
of the ECHR .[57]
3.5 Can
discrimination against same-sex parents interfere with the rights of the child?
The lives of children are inextricably bound up with
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
large’.[58]
The
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
interests of the child.
For example, a child
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
families support their children.
3.5.1 Discrimination
against same-sex parents can amount to discrimination against a
child
The CRC requires Australia to ensure that all children
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
CRC reads as follows:
States Parties shall take all appropriate measures to
ensure that the child is protected against all forms of discrimination or
punishment on the basis of the status, activities, expressed opinions, or
beliefs of the child's parents, legal guardians, or family members.
The scope of article
2(2) is very broad and requires State Parties to protect the child from
discrimination regardless of whether such
discrimination is related to a right under the
CRC.[59]
The Committee on the Rights of the Child has
expressly stated that:
- Discrimination on the basis of sexual orientation
is discrimination for the purpose of article
2.[60]
- Direct and indirect discrimination against
children, their parents, or legal guardians will breach article 2 of the CRC. [61]
The
Committee on the Rights of the Child has expressed concern that:
[Y]oung children may...suffer the consequences of
discrimination against their parents, for example if children have been born out
of wedlock or in other circumstances that deviate from traditional values, or if
their parents are refugees or asylum
seekers.[62]
In evidence to the Inquiry, Mr Philip Lynch,
Director and Principal Solicitor of the Human Rights Resource Law Centre argued:
...discrimination against the same-sex parents or
guardians of a child which has an adverse impact on the child (eg, parents
unable to access a particular financial entitlement which would have been of
benefit to the parents and, by extension, the child) directly engages and
violates art 2(2) of the CRC. [63]
In
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
article 2(2) of the CRC.
3.5.2 Discrimination
against same-sex parents can interfere with the best interests of the child
The best interests principle set out in article 3(1)
is one of the core principles of the
CRC.[64] It provides that:
In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration. (emphasis
added)
The best
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
children.
Laws which discriminate against
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
legislation.
For example, minimum workplace
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
the child’s life.
Given that the
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
article 3(1) in conjunction with article 2 of the CRC.
3.5.3 Discrimination
against same-sex parents can interfere with the performance of their common
responsibilities
Under the CRC Australia is obliged to respect and
assist the role of a child’s parents in protecting the best interests of
the child.
Article 18(1) of the CRC expands on
the concept of the responsibilities of parents and requires State Parties to:
...use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the upbringing
and development of the child. Parents or, as the case may be, legal
guardians, have the primary responsibility for the upbringing and development of
the child. The best interests of the child will be their basic concern. (emphasis added)
Article 18(2) goes a step
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)
states:
For the purpose of
guaranteeing and promoting the rights set forth in the present
Convention, States Parties shall render
appropriate assistance to parents and legal guardians in the performance of
their child-rearing responsibilities and shall ensure the development of
institutions, facilities and services for the care of children. (emphasis
added)
While the UNICEF Implementation Handbook does not
specifically refer to the responsibilities and rights of parents in a same-sex
couple, it states:
Under the terms of article 18, the law must recognise the
principle that both parents have common responsibility...
Government measures should be directed at supporting and promoting the viability
of joint parenting. (emphasis in
original)[65]
Laws denying benefits and entitlements to a same-sex
parent, which are otherwise available to an opposite-sex parent, will breach
article 18, in conjunction with article 2 of the CRC.
Further, laws which fail to recognise the
lesbian co-mother or gay co-father of a child may breach the obligation to
recognise the ‘common responsibilities’ of ‘both
parents’ under article 18(1).
3.5.4 Discrimination
against same-sex parents can interfere with a child’s right to identity
The CRC recognises the importance of family relations
in forming and preserving the identity of the child.
(a) A
child’s right to know and be cared for by his parents
Under article 7(1) of the CRC a child has a right to
be:
...registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and, as far as
possible, the right to know and be cared for by his or her parents. (emphasis added)
Article 7(1) of the CRC reflects the text of article
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
personality’.[66]
Part of the registration process is to note
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
and maintenance of the child. [67]
There
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.
This is discussed further in Chapter 5 on Recognising Children.
(b) A
child’s right to preserve his or her identity
Article 8(1) of the CRC reads as follows:
States Parties undertake to respect the right of the child
to preserve his or her identity, including nationality, name and family
relations as recognized by law without unlawful interference.
While the UNICEF Implementation Handbook observes the
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
parents.[68]
In terms of a child’s right to know his
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
parents.[69]
The UNICEF Implementation Handbook states
that:
...psychological parents – those who cared for the
child for significant periods during infancy and childhood – should also
logically be included [in the definition of parents] since these persons too are
intimately bound up in children’s identity and thus their rights under
article
8.[70]
Thus,
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
parent’ or interfere with a child’s sense of identity.
For example, the lesbian co-mother of a child
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
article 2 of the CRC.
3.5.5 Discrimination
against same-sex couples in adoption can interfere with the best interests of
the child
Article 21 of the CRC requires countries which permit
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
consideration’.
The UNICEF Handbook
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
...’.[71]
Australian
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
assessment of what is in an individual child's best interests.
As discussed further in Chapter 5 on
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
birth parents or adoptive parents.
3.6 Can
discrimination against same-sex couples interfere with the right to social
security?
Most federal social security laws in Australia do not
recognise same-sex couples as a genuine
relationship.[72] In some
circumstances, this can result in a financial disadvantage for same-sex couples.
In other circumstances same-sex couples may receive a financial advantage.
3.6.1 Social
security has a broad definition in human rights law
Article 9 of the ICESCR recognises the ‘right of
everyone to social security, including social insurance’.
According to the ESCR Committee and the ILO,
social security includes:
- medical care
- sickness benefits
- unemployment benefits
- old-age benefits
- employment injury benefits
- family benefits
- maternity benefits
- invalidity benefits
- survivors
benefits.[73]
The ESCR Committee draft General
Comment on social security confirms the broad scope of the right to social
security, stating:
The right to social security covers the right to access
benefits, through a system of social security, in order to secure (i) income
security in time of economic or social distress; (ii) access to health care and
(iii) family support, particularly for children and adult dependants. Economic
and social distress includes the interruption of earnings through sickness,
maternity, employment injury, old age, invalidity or disability, death or other
factor that is either beyond the person’s control or would be otherwise
inconsistent with the principle of human
dignity.[74]
Consistent with the broad scope right to
social security, this Inquiry considers the right to social security without
discrimination is relevant to the discussions in the following
chapters:
- Chapter 8 on Tax
- Chapter 9 on Social Security
- Chapter 10 on Veterans’ Entitlements
- Chapter 12 on Health Care
- Chapter 13 on Superannuation.
3.6.2 Discrimination
against same-sex couples can interfere with the right to social security
The ESCR Committee’s draft General Comment on
the interpretation of the right to social security states that the ICESCR:
...prohibits any discrimination on the grounds of race,
colour, sex...sexual orientation and civil, political, social or other
status, which has the intention or effect of nullifying or impairing the
equal enjoyment or exercise of the right to social security (emphasis
added).[75]
The
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
grounds’.[76]
The
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
fact’.[77]
Therefore, excluding same-sex couples from
social security benefits may breach the right to social security in article 9 of
the ICESCR in conjunction with article 2(2).
3.6.3 Discrimination
against same-sex parents can impact on a child’s right to benefit from
social security
Article 26(1) of the CRC reads as follows:
States Parties shall recognize for every child the right
to benefit from social security, including social insurance, and shall take the
necessary measures to achieve the full realization of this right in accordance
with their national law.
The right of a child
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
caregivers’.[78]
As noted above, Australian social security
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)
of the CRC.
3.7 Can
discrimination against same-sex couples interfere with the right to health?
Australian laws which provide health care and medicine
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
care and medicines.
3.7.1 Discrimination
against same-sex couples can interfere with the right to health
Article 12 of ICESCR ‘recognises the right of
everyone to the enjoyment of the highest attainable standard of physical and
mental health’.
The right to health is
‘understood as the right to the enjoyment of a variety of facilities,
goods, services and conditions necessary for the highest attainable standard of
health’.[79]
Article 2 of ICESCR requires that the
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
the ICESCR:
Proscribes any discrimination in access to health care and
underlying determinants of health, as well as to means and entitlements for
their procurement, on the grounds of race, colour, sex...sexual orientation...
which has the intention or effect of nullifying or impairing the equal enjoyment
or exercise of the right to
health.[80]
Australian laws denying equal access to
financial entitlements which help cover the cost of health care may act as a
financial barrier to same-sex couples accessing health care.
This may contravene the right of people in
same-sex families to enjoy ‘the highest attainable standard of physical
and mental health’ without discrimination (article 2).
3.7.2 Discrimination
against same-sex parents can interfere with a child’s right to
health
Like article 12 of ICESCR, article 24(1) of the CRC
protects the rights of the child to access the highest attainable standard of
health.
The Committee on the Rights of the
Child has expressed concern about the impact that discrimination, including
discrimination on the grounds of sexual orientation, can have on the physical
and mental health of the child.[81]
The CRC requires Australia to ensure that no
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
sexual orientation of the child.
This means
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
article 2(1).
3.8 How
are these human rights principles applied in this report?
This chapter explains the human rights principles
applied in the remainder of this report.
The
emphasis of this report is on the right to non-discrimination because, as one
commentator observed, ‘discrimination is at the root of virtually all
human rights abuses’.[82]
Therefore, each of the following chapters
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
ICESCR.
The findings in each chapter are
summarised in the final Chapter 18.
Endnotes
[1] Since 1986, HREOC has had the powers to investigate alleged violations of 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
11(1)(f).
[2] Since 1986, HREOC has had the powers to investigate alleged violations of the
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
11(1)(f).
[3] Convention on the Rights of the Child, article
45.
[4] ESCR Committee, General Comment 3, (1990), para 1, in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
UN Doc HRI/GEN/1/Rev.8 (2006) at
15.
[5] The Human Rights and Equal Opportunity Regulations specifically state that for
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
(Cth), No 407 4(a)(ix).
[6] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(b),
32(1).
[7] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
35(2).
[8] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR
Commentary, N.P. Engel, Strasbourg, 1993,
p28.
[9] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, N.P. Engel, Strasbourg,1993 , p473; See also S Joseph, M Castan and J
Schultz, The International Covenant on Civil and Political Rights: Cases,
Materials and Commentary, 2nd ed, Oxford University Press, 2004,
p686, para
[23.11].
[10] Human Rights Committee, General Comment 18, (1989), para 12, in Compilation
of General Comments and General Recommendations Adopted by Human Rights Treaty
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
(1990).
[11] See also Human Rights Law Resource Centre, Submission
160.
[12] Concluding observations of the Human Rights Committee: El Salvador,
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
23.
[13] ESCR Committee, General Comment 18, (2005), para 12(b)(i), in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
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
91.
[14] Committee on the Rights of the Child, General Comment 3, (2003), para 6, in Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at
365.
[15] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para
2.1.
[16] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para
8.7.
[17] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para
8.7.
[18] Croome v Tasmania (1997) 191 CLR
119.
[19] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para
10.4.
[20] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para
10.4.
[21] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para
10.4.
[22] S Joseph, M Castan and J Schultz, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary, 2nd ed, Oxford
University Press, 2004, p691, para [23.25]. See also, Castan Centre for Human
Rights Law, Submission
126.
[23] Sex Discrimination Act 1984 (Cth), ss
5,6.
[24] Human Rights Committee, General Comment 18, (1989), para 7, in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at
187.
[25] Human Rights Committee, General Comment 18, (1989), para 13, in Compilation
of General Comments and General Recommendations Adopted by Human Rights Treaty
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
10.4.
[26] The European Court of Human Rights has held that differential treatment based on
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,
40.
[27] Joslin v New Zealand, (902/1999) UN Doc.
CCPR/C/75/D/902/1999.
[28] In Joslin, the separate but concurring opinion of Messrs Lallah and
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.
CCPR/C/75/D/902/1999.
[29] The Human Rights Committee has held that differential access to benefits
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
10.4.
[30] Indirect discrimination occurs when there is a requirement or condition or
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
ICCPR.
[31] Human Rights Committee, General Comment 31, (2004), para 15 in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at
237.
[32] Human Rights Committee, General Comment 31, (2004), para 16 in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at
237.
[33] Human Rights Committee, General Comment 31, (2004), para 15 in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at
237.
[34] See for example Equal Opportunity Commission of Western Australia, Submission
342; Equal Opportunity Commission of Victoria, Submission
327.
[35] Both the Charter of Human Rights and Responsibilities Act 2006 (Vic) and
the Human Rights Act 2004 (ACT) prohibit discrimination on the grounds of
sexual orientation: see Charter of Human Rights and Responsibilities Act 2006 (Vic), s 3; Human Rights Act 2004 (ACT), s 8.
[36] Workplace Relations Act 1996 (Cth), s 659.
[37] The Workplace Relations Act 1996 (Cth) also directs the Australian
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
preference’.
[38] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
11(1)(f).
[39] Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 31(b),
32(1).
[40] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(e).
[41] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(a).
[42] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
11(1)(j).
[43] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s
31(f).
[44] C. v Australia, (900/1999) UN Doc. CCPR/C/76/D/900/1999, para
7.3.
[45] Hendriks v Netherlands, (201/85) UN Doc. CCPR/C/33/D/201/1985, para 10.3.
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),
p588.
[46] Human Rights Committee, General Comment 16, (1988), para 5, in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006), at
182.
[47] Human Rights Committee, General Comment 19, (1990), para 2 in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at 188.
[48] S Joseph, M Castan and J Schultz, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary, 2nd ed, Oxford
University Press, 2004, p587, para
[20.06].
[49] Balaguer Santacana v Spain,(417/90) UN Doc. CCPR/C/51/D/417/1990, para
10.2.
[50] Committee on the Rights of the Child, Report on the fifth session, January
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),
p88.
[51] Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex
Couple Families’, p142 (2005).
[52] Human Rights Committee, General Comment 16, (1988), para 5, in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at
182.
[53] Human Rights Committee, General Comment 16, (1988), para 4, in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at
182.
[54] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, paras 8.4 -
8.6.
[55] BB v The United Kingdom [2004] ECHR 65.
[56] Salgueiro da Silva Mouta v Portugal [1999] ECHR
176
[57] Karner v Austria [2003] ECHR
395.
[58] Concluding Observations of the Committee on the Rights of the Child: Uzbekistan, CRC, CRC/C/111 (2001) 117, para
558.
[59] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p35.
[60] Committee on the Rights of the Child, General Comment 3, (2003), in Compilation of General Comments and General Recommendations Adopted by Human
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,
UN Doc HRI/GEN/1/Rev.8 (2006) at 376.
[61]Concluding
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
(2003) 100 at para 479.
[62] Committee on the Rights of the Child, General Comment 7, (2003), para 12, in Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006), at
437.
[63] Phillip Lynch, Melbourne Hearing, 27 September 2006.
[64] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p39.
[65] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p249.
[66] Human Rights Committee, General Comment 17, (1989), para 7, in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at
185.
[67] Rl Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p112.
[68] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p125.
[69] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p117.
[70] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p117.
[71] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p296.
[72] Social Security Act 1991 (Cth), s
4(2).
[73] For the purpose of monitoring State Parties’ compliance with article 9 of
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
102).
[74] ESCR Committee, Draft General Comment 20, (2006) UN Doc.
E/C.12/GC/20/CRP.1,
p1.
[75] ESCR Committee, Draft General Comment 20, (2006) UN Doc.
E/C.12/GC/20/CRP.1,
p5.
[76] ESCR Committee, Draft General Comment 20, (2006) UN Doc.
E/C.12/GC/20/CRP.1,
p8.
[77] ESCR Committee, Draft General Comment 20, (2006) UN Doc.
E/C.12/GC/20/CRP.1,
p5.
[78] R Hodgkin and P Newell, Implementation Handbook for the Convention on the
Rights of the Child, UNICEF (2002),
p379.
[79] ESCR Committee, General Comment 14, (2000), para 9, in Compilation of General
Co